SUMMARY

February 27, 2020

2020COA34

No. 18CA2250, Woodbridge Condominium Association, Inc., v. 

Lo Viento Blanco, LLC — Real Property — Prescriptive 

Easements — Adverse Use

A division of the court of appeals addresses whether the 

requirement that the use be “adverse” in the adverse possession of 

property context is coextensive with the requirement of adverse use 

in the prescriptive easement context. While there is overlap, the 

division concludes that overlap is not complete; claim to exclusive 

ownership during the prescriptive period is required to show hostile 

adverse use when a party seeks to acquire title by adverse 

possession, but it is not required when a party seeks to acquire a 

prescriptive easement by adverse use. Rather, adverse use in the 

prescriptive easement context requires only a showing of use made 

The summaries of the Colorado Court of Appeals published opinions 

constitute no part of the opinion of the division but have been prepared by 

the division for the convenience of the reader. The summaries may not be 

cited or relied upon as they are not the official language of the division. 

Any discrepancy between the language in the summary and in the opinion 

should be resolved in favor of the language in the opinion.
without consent or other authorization of the landowner, such as 

would justify a tort action for interference with property rights. 

Applying this rule, the division affirms the trial court’s conclusion 

that plaintiff Woodbridge Condominium Association Inc. acquired a 

prescriptive easement over the disputed parcel. The division also 

affirms the trial court’s ruling as to the scope of that easement. 

 
COLORADO COURT OF APPEALS 2020COA34

Court of Appeals No. 18CA2250

Pitkin County District Court No. 12CV223

Honorable Christopher G. Seldin, Judge

Woodbridge Condominium Association, Inc., a Colorado nonprofit corporation,

Plaintiff-Appellee,

v.

Lo Viento Blanco, LLC, an Arizona limited liability,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division V

Opinion by JUDGE J. JONES

Harris and Brown, JJ., concur

Announced February 27, 2020

Peck Feigenbaum PC, Heather J. Manolakas, Lucas Peck, Denver, Colorado, for 

Plaintiff-Appellee

Law Office of James A. Knowlton, LLC, James A. Knowlton, Denver, Colorado, 

for Defendant-Appellant
1

¶ 1 Lo Viento Blanco, LLC (Lo Viento) owns an approximately halfacre (actually 0.452-acre) piece of property in Snowmass Village 

(the disputed parcel). Reversing the trial court, a prior division of 

this court held that Woodbridge Condominium Association, Inc. 

(Woodbridge) hadn’t acquired the disputed parcel by adverse 

possession. Woodbridge Condo. Ass’n, Inc. v. Lo Viento Blanco, LLC, 

(Colo. App. No. 15CA0596, May 19, 2016) (not published pursuant 

to C.A.R. 35(f)) (Woodbridge I). On remand, however, the trial court 

found that Woodbridge is entitled to a prescriptive easement over 

most of the disputed parcel. 

¶ 2 Lo Viento again appeals, contending that the trial court erred 

by finding a prescriptive easement and also by delineating the scope 

of the easement. To resolve Lo Viento’s first contention, we must 

address, among other issues, whether the requirement that the use 

be “adverse” in the adverse possession context is coextensive with 

adverse use in the prescriptive easement context. We conclude that 

while those requirements overlap, that overlap isn’t complete. As 

most relevant, we hold that while claim to exclusive ownership 

during the prescriptive period is required to show hostile adverse 

use when a party seeks to acquire title by adverse possession, it 
2

isn’t required when a party seeks to acquire a prescriptive easement 

by adverse use. Rather, adverse use in the prescriptive easement 

context requires only a showing of use made without consent or 

other authorization of the landowner, such as would justify a tort 

action for interference with property rights. See Restatement 

(Third) of Property: Servitudes § 2.16 cmt. b (Am. Law Inst. 2000). 

And for this reason, a user’s recognition of the landowner’s title 

doesn’t necessarily defeat a claim for a prescriptive easement based 

on adverse use.

¶ 3 The trial court properly applied these principles. And because 

(1) its underlying findings of historical fact enjoy record support; (2) 

Lo Viento’s separate contention that its predecessor in title gave 

Woodbridge permission to use the disputed parcel fails; and (3) the 

other elements of a prescriptive easement claim aren’t disputed, we 

affirm its conclusion that Woodbridge acquired a prescriptive 

easement over the disputed parcel. We also affirm the trial court’s 

ruling as to the scope of that easement. 
3

I. Background

A. Historical Facts

¶ 4 In the early to mid-1970s, L.R. Foy Construction Co., Inc. 

(Foy), owned and controlled by Lyle Foy, built several condominium 

buildings on a parcel that included, but was quite a bit larger than, 

the disputed parcel. None of those buildings are on the disputed 

parcel.1 The disputed parcel is shown on the following diagram. 

 

1 The plan Foy submitted to the county for approval showed a 

building on the disputed parcel. The record doesn’t say why Foy 

didn’t construct that building. 
4

¶ 5 In late 1975, Foy conveyed the larger parcel — but not 

including the disputed parcel — to Woodbridge. (This conveyance 

failed to conform to the development plan approved by the county, 

which included the entirety of the larger parcel. So the conveyance 

may have been illegal because it subdivided the property without 
5

the county’s approval.) Thereafter, and continuing through at least 

2012, Woodbridge used the disputed parcel in a number of ways. 

• Residents and guests skied across it to access a 

pedestrian bridge leading to a ski area. 

• Woodbridge maintained sod previously installed by Foy 

for erosion control by regularly mowing, watering, 

fertilizing, and raking it.

• Residents and guests regularly used a gravel road 

running through the disputed parcel to access one of the 

buildings (Building 31) and to park on. 

• Woodbridge maintenance personnel used the gravel road 

to access Building 31.

• Woodbridge maintained and put gravel on the gravel 

road.

• In 1992, and again in 1995, Woodbridge planted some 

pine trees on it.

• Also in 1995, Woodbridge used it as a staging area for a 

large construction project and built a berm just north of 

the gravel road.
6

• Woodbridge added a picnic table and split rail fence in 

1997.

• Sometime in the late 1990s, Woodbridge planted aspen 

trees on it (some of which it later moved in 2004).

• In the early 2000s, Woodbridge put a chain across the 

gravel road to limit use of the gravel road to maintenance 

personnel. 

• In 2004, Woodbridge installed signs on it that read 

“Woodbridge Condominiums,” and Woodbridge installed 

lights and landscaping around the signs.

• Also in 2004, Woodbridge installed an in-ground 

sprinkler system to water the sod that covers most of the 

disputed parcel. 

¶ 6 In sum, as the trial court said, “beginning in November 1975, 

Woodbridge maintained and used the [d]isputed [p]arcel as if it 

owned the parcel” — it used the property as an amenity and 

convenience for residents, guests, and maintenance personnel as if 

it were a part of the overall condominium development. 
7

¶ 7 All this would seem, considered in a vacuum, to make out a 

case for adverse possession of the disputed parcel.2 But, as the 

prior division determined, a letter from Woodbridge to Foy in 1992 

offering to buy the disputed parcel doomed that idea. 

¶ 8 In early 1991, Woodbridge sent two letters to Foy asking for 

permission to plant trees and shrubs on the disputed parcel. Foy 

responded with a letter offering to give such permission if 

Woodbridge would agree to certain conditions. (Foy made the offer 

on behalf of the entity to which it had conveyed the property in 

1989, an entity controlled by Mr. Foy.) Woodbridge didn’t agree to 

those conditions, but then offered to buy the disputed parcel from 

Foy in a June 1992 letter.3 Neither Foy nor the then-owner 

responded to that offer. 

 

2 Indeed, as discussed below, the trial court found, following a 

bench trial, that Woodbridge had acquired the disputed parcel by 

adverse possession. 

3 There is some question whether these letters related to land within 

the disputed parcel. But the trial court found that, by these letters, 

Woodbridge sought to plant on and then buy property owned by 

Foy’s successor in title, including the disputed parcel, despite not 

knowing precisely what land that entity owned. 
8

¶ 9 Woodbridge nonetheless continued to use the disputed parcel 

as if it owned it. No record owner of the disputed parcel made any 

use of it for any purpose from 1975 until 2011. 

¶ 10 Lo Viento ultimately purchased the disputed parcel at auction 

from a bankruptcy estate in 2010 for $2,500. In 2011, Lo Viento 

presented plans to Woodbridge to build on the disputed parcel.4

B. This Litigation

¶ 11 On learning of Lo Viento’s plans to build, Woodbridge told Lo 

Viento that it owned the disputed parcel by adverse possession. It 

followed up by filing this case in August 2012, claiming title to the 

disputed parcel by adverse possession. In the alternative, it sought 

a declaration that it has a prescriptive easement over the disputed 

parcel. Lo Viento counterclaimed to reform the deed it had received 

from the bankruptcy estate and to quiet title. 

¶ 12 Following a bench trial, during which the court visited the 

disputed parcel, the court found that Woodbridge had acquired title 

by adverse possession, explaining its ruling in a commendably 

 

4 Lo Viento didn’t do anything to interrupt Woodbridge’s use of the 

disputed property until September 2012, when it filed its 

counterclaims. 
9

thorough written order. Lo Viento appealed, and, as noted, a 

division of this court reversed. 

¶ 13 The division reasoned that Woodbridge’s June 1992 letter 

offering to buy the disputed parcel was, in essence, an admission 

“that it did not claim superior title or have any right to or ownership 

of the disputed parcel.” Because “hostility requires the adverse 

possessor to claim exclusive ownership of the property,” the 1992 

letter torpedoed Woodbridge’s adverse possession claim by 

interrupting the continuity of Woodbridge’s adverse possession 

before the passage of the statutory eighteen-year vesting period that 

began in 1975. Woodbridge I, slip op. at 7 (citing Anderson v. Cold 

Spring Tungsten, Inc., 170 Colo. 7, 11, 458 P.2d 756, 758 (1969)). 

The division also held that the June 1992 letter defeated any claim 

to adverse possession beginning in November 1993 (after the initial 

eighteen-year period beginning in 1975) because it showed that 

Woodbridge didn’t believe it was the actual owner of the disputed 

parcel. Id. at 10 (citing § 38-41-101(3)(b)(II), C.R.S. 2019).5 So the 

 

5 Under section 38-41-101(3)(b)(II), C.R.S. 2019, an adverse 

possession claimant can’t prevail on a claim that would vest on or 

after July 1, 2008, unless it shows that it had a good faith belief 
10

division reversed the order quieting title in Woodbridge and 

remanded the case to the trial court to quiet title in Lo Viento “and 

to consider Woodbridge’s easement claims.” Id. at 11. 

¶ 14 On remand, the parties agreed that the court (a different judge 

than the one who had presided at trial) would rule without taking 

additional evidence. (And Lo Viento argued that the division’s 

previous decision controlled.) After considering the parties’ 

post-remand arguments and the record, the trial court found that 

Woodbridge had proved its right to a prescriptive easement, 

explaining its reasoning in yet another thorough written order. 

After additional briefing, the court issued a third detailed written 

order setting forth the geographical bounds, permissible uses, and 

nature of the easement. Lo Viento appeals these last two orders, 

which collectively make up the court’s final judgment.

II. Discussion

¶ 15 As noted, Lo Viento first challenges the trial court’s finding 

that Woodbridge is entitled to an easement by prescription. 

 

that it actually owned the property that was reasonable under the 

circumstances. 
11

Alternatively, it challenges the court’s findings as to the scope of the 

easement. We consider, and reject, these challenges in turn.

A. The Existence of the Easement

¶ 16 In Colorado, “[a]n easement by prescription is established 

when the prescriptive use is: 1) open or notorious, 2) continued 

without effective interruption for the prescriptive period, and 3) the 

use was either a) adverse or b) pursuant to an attempted, but

ineffective grant.” Lobato v. Taylor, 71 P.3d 938, 950 (Colo. 2002) 

(citing Restatement (Third) of Property: Servitudes §§ 2.16, 2.17); 

accord LR Smith Invs., LLC v. Butler, 2014 COA 170, ¶ 14. 

¶ 17 This case doesn’t involve an attempted, but ineffective grant; 

Woodbridge’s claim is based on adverse use. As to that element, Lo 

Viento argues that Woodbridge’s use of the disputed parcel wasn’t 

adverse because the prior division’s holding that Woodbridge’s June 

1992 letter defeated Woodbridge’s adverse possession claim is the 

law of the case and applies equally to Woodbridge’s prescriptive 

easement claim. It argues in the alternative that Foy’s July 1991 

letter shows that Woodbridge’s use of the disputed parcel was 

permissive, not adverse, as of mid-1991, so Woodbridge didn’t show 

eighteen continuous years of adverse use from 1975 or from 
12

mid-1991, as required by section 38-41-101(1). (Or, put another 

way, Lo Viento argues that Woodbridge’s adverse use was fatally 

interrupted during the prescriptive period.)

1. Law 

a. Law of the Case

¶ 18 “[T]he law of the case doctrine ‘provides that prior relevant 

rulings made in the same case are to be followed unless such 

application would result in error or unless the ruling is no longer 

sound due to changed conditions.’” Stockdale v. Ellsworth, 2017 

CO 109, ¶ 37 (quoting People v. Dunlap, 975 P.2d 723, 758 (Colo. 

1999)). “[T]he law of the case established by an appellate court 

must be followed on remand in subsequent proceedings before a 

trial court.” San Antonio, Los Pinos & Conejos River Acequia Pres. 

Ass’n v. Special Improvement Dist. No. 1, 2015 CO 52, ¶ 31. 

“Conclusions of an appellate court on issues presented to it as well 

as rulings logically necessary to sustain such conclusions become 

the law of the case.” Super Valu Stores, Inc. v. Dist. Court, 906 P.2d 

72, 79 (Colo. 1995).
13

b. Adverse Use in the Prescriptive Easement Context

¶ 19 To obtain title to property by adverse possession, the claimant 

“must prove that his possession . . . was actual, adverse, hostile, 

under claim of right, exclusive and uninterrupted for the statutory 

period.” Smith v. Hayden, 772 P.2d 47, 52 (Colo. 1989).6 This 

requirement means that the adverse possessor must claim exclusive 

ownership of the occupied parcel; in the absence of such a claim, a 

use isn’t deemed “hostile.” Id. at 56; Anderson, 170 Colo. at 11, 

458 P.2d at 758.

¶ 20 This conception of hostility (requiring claim to exclusive 

ownership) is one aspect of the law of adverse possession that 

differs from the law of prescriptive easements. In the latter context, 

an adverse use 

is a use made without consent of the 

landowner, or holder of the property interest 

used, and without other authorization. 

Adverse uses create causes of action in tort for 

interference with property rights. . . . [Such] 

 

6 In addition, as previously noted, a party claiming fee simple title 

by adverse possession for which title would vest after July 1, 2008, 

must also prove that it had a good faith belief that it was the actual 

owner of the property that was reasonable under the 

circumstances. § 38-41-101(3)(b)(II).
14

uses are adverse or hostile to the property 

owner in the ordinary sense of the words. 

Restatement (Third) of Property: Servitudes § 2.16 cmt. b. Put 

slightly differently, “[t]o be adverse, . . . a use must create a cause of 

action for interference with an interest in property like trespass, 

nuisance, or interference with a servitude benefit. To be adverse, 

the use must be made without authority and without permission of 

the property owner.” Id. at cmt. f; see also Matoush v. Lovingood, 

177 P.3d 1262, 1270 (Colo. 2008) (“When an easement is created by 

adverse possession, a party uses land that is not in his or her 

possession, and does so in a way that is adverse to the property 

rights of the party who possesses the land.”); Restatement (Third) of 

Property: Servitudes § 2.16 cmt. a (when a prescriptive easement is 

claimed by adverse use, “a person begins using the property 

without the consent or authority of the owner and acquires a 

servitude if the use continues for the prescriptive period and [the 

use is open or notorious and continued without effective 

interruption]”). 

¶ 21 So while a party claiming adverse possession must show that 

it asserted exclusive ownership of the property during the 
15

prescriptive period, a party claiming a prescriptive easement 

doesn’t; in the latter context, the claimant need only show a 

nonpermissive or otherwise unauthorized use of property that 

interfered with the owner’s property interests.7

¶ 22 A prescriptive easement claimant that shows that its use of 

the property was open and notorious and continuous for the 

statutory period is entitled to a presumption that its use was 

adverse. Trueblood v. Pierce, 116 Colo. 221, 233, 179 P.2d 671, 677 

 

7 To be sure, such a use without permission or authorization may 

support a claim of adverse possession. But such a showing is 

insufficient to show hostility; a claim of exclusive ownership is also 

required. In arguing that this requirement also applies to 

prescriptive easements, Lo Viento points to the following statement 

by Justice Kourlis in her dissenting opinion in Lobato v. Taylor, 71 

P.3d 938 (Colo. 2002): “This court has consistently held that the 

same requirement of adversity applies to acquiring easement and 

profit rights by prescription as to the acquisition of title by adverse 

possession.” Id. at 970-71 (Kourlis, J., dissenting). But Lo Viento 

takes that statement (which, in any event, is from a dissent) out of 

context. Justice Kourlis was arguing that Colorado courts had 

always required a showing of adversity to prove a prescriptive 

easement: she disagreed with the majority’s decision to follow the 

Restatement’s position that a prescriptive easement can also be 

created by an intended but ineffective grant. See id. at 971 (“Thus,

the adoption of the second prong of the Restatement test, which can 

create a prescriptive right in the context of permissive, consensual 

use is contrary to our law, and I would decline to engraft it.”). She 

wasn’t saying that the adversity requirement is the same in both 

contexts in all respects. 
16

(1947); LR Smith Invs., ¶ 15; Durbin v. Bonanza Corp., 716 P.2d 

1124, 1129 (Colo. App. 1986); see Brown v. Faatz, 197 P.3d 245, 

250 (Colo. App. 2008); Restatement (Third) of Property: Servitudes 

§ 2.16 cmt. g, § 2.17 cmt. g. The landowner can rebut that 

presumption by showing that the claimant’s use at any time during 

the statutory period was permissive. Trueblood, 116 Colo. at 233, 

179 P.2d at 677; LR Smith Invs., ¶ 15. But if the landowner doesn’t 

meet that burden, and the claimant proves the other elements, the 

court must find a prescriptive easement. Trueblood, 116 Colo. at

233, 179 P.2d at 677; LR Smith Invs., ¶ 15.

2. Standard of Review

¶ 23 A trial court’s determination that a party is entitled to a 

prescriptive easement is one of fact. See Brown, 197 P.3d at 249; 

Trask v. Nozisko, 134 P.3d 544, 550 (Colo. App. 2006). And more 

specifically, whether a claimant’s use of property was adverse to the 

owner’s property interests is a question of fact, as is whether the 

use was permissive. LR Smith Invs., ¶ 25; Maralex Res., Inc. v. 

Chamberlain, 2014 COA 5, ¶ 21; cf. Smith, 772 P.2d at 56 (in the 

adverse possession context, “whether possession is hostile or 

adverse is a question of fact to be determined by the trier of fact”). 
17

¶ 24 We review findings of fact for clear error, meaning that we 

won’t disturb such findings if there is any evidence in the record 

supporting them. M.D.C./Wood, Inc. v. Mortimer, 866 P.2d 1380, 

1384 (Colo. 1994); see LR Smith Invs., ¶ 17 (appellate court must 

accept trial court’s findings concerning adversity of use if they have 

record support); Weisiger v. Harbour, 62 P.3d 1069, 1071 (Colo. 

App. 2002) (when the trial court bases its factual findings on 

competent evidence in the record, the appellate court won’t disturb 

its determination regarding a prescriptive easement).8

¶ 25 But we review legal issues de novo. Brown, 197 P.3d at 249. 

Whether the trial court neglected to follow the law of the case or 

otherwise failed to apply correct legal principles — both of which Lo 

Viento asserts — are two such issues. See Ledroit Law v. Kim, 2015 

 

8 Lo Viento suggests that because the judge on remand relied on the 

previous judge’s findings of fact, those findings are subject to 

“heightened scrutiny.” But that test applies when a court adopts, 

virtually word for word, a party’s proposed findings of fact. See 

Uptime Corp. v. Colo. Research Corp., 161 Colo. 87, 92-93, 420 P.2d 

232, 234-35 (1966); Trask v. Nozisko, 134 P.3d 544, 549 (Colo. App. 

2006). That didn’t happen here. So we review the court’s findings 

of fact as we ordinarily do — for clear error, recognizing the trial 

court’s unique perspective to determine the credibility of witnesses 

and weigh conflicting evidence.
18

COA 114, ¶ 47; Hardesty v. Pino, 222 P.3d 336, 339 (Colo. App.

2009).

3. Application: Woodbridge Proved Adverse Use

¶ 26 Lo Viento seizes on the prior division’s conclusion that 

Woodbridge’s June 1992 letter offering to buy the disputed parcel 

defeated Woodbridge’s claim for adverse possession because it 

showed that Woodbridge “did not claim superior title or have any 

right of ownership to the disputed parcel.” Woodbridge I, slip op. at 

7. It argues that this conclusion is the “law of the case” as to 

whether Woodbridge’s use of the disputed property was adverse 

because the prior division said that the letter “is sufficient to rebut 

the presumption of adversity raised by Woodbridge’s possession.” 

Id.9

¶ 27 But in so arguing, Lo Viento fails to recognize that, as 

discussed above, in contrast to a claim to title by adverse 

possession, a claim for a prescriptive easement by adverse use 

 

9 Lo Viento seems to equate the trial court’s supposed failure to 

follow the law of the case with a failure to follow the prior division’s 

mandate. But the prior division’s mandate was to quiet title in Lo 

Viento “and to consider Woodbridge’s easement claims.” The trial 

court clearly did that. Whether the trial court followed the law of 

the case is a separate issue.
19

doesn’t require a party to show that it asserted exclusive ownership 

during the prescriptive period. The prior division’s conclusions 

about the June 1992 letter addressed only the requirement of 

adversity in the adverse possession context, and even then only as 

to whether Woodbridge had asserted exclusive ownership. Thus, 

the prior division’s holding didn’t control Woodbridge’s prescriptive 

easement claim. See Kuhn v. State, Dep’t of Revenue, 897 P.2d 792, 

795 (Colo. 1995) (appellate court’s prior decision wasn’t law of the 

case as to an issue it didn’t address); Rodgers v. Colo. Dep’t of 

Human Servs., 39 P.3d 1232, 1235 (Colo. App. 2001) (same). 

¶ 28 To the extent Lo Viento argues as a matter of substantive law 

that Woodbridge’s mere recognition of Lo Viento’s predecessor’s title 

in 1991 and 1992 necessarily defeats Woodbridge’s claim of adverse 

use, that argument also fails. 

¶ 29 True, “[u]ses made in subordination to the property owner are 

not adverse . . . .” Restatement (Third) of Property: Servitudes 

§ 2.16 cmt. f. But

[r]ecognition of the landowner’s title is not the 

same as subordination to that title. 

Subordination requires that the user act with 

authorization, express or implied, from the 

landowner, or under a claim that is derivative 
20

from the landowner’s title. Use made in 

defiance of a recognized title is adverse to the 

title. The fact the user tried unsuccessfully to 

purchase a servitude from the landowner does 

not establish that his subsequent use was 

subordinate to the landowner’s title. . . . A use 

is adverse even though made in the mistaken, 

but good faith, belief that the user is entitled to 

make it, and it is adverse even if the user 

acknowledges that the land is owned by 

another and the user has no right to make the 

use.

Id.; cf. Warsaw v. Chi. Metallic Ceilings, Inc., 676 P.2d 584, 588 (Cal. 

1984) (fact that claimants had tried to buy the parcel at issue or 

negotiate an express easement didn’t show that use was 

permissive); Rafanelli v. Dale, 924 P.2d 242, 247-49 (Mont. 1996) 

(attempts to negotiate over access didn’t show that use was 

permissive; claimants acted as if they had a right to use the access). 

¶ 30 Woodbridge recognized that it didn’t hold title, but there 

isn’t any evidence that it acted in subordination to the owner’s title. 

Indeed, the evidence is to the contrary: Woodbridge consistently 

treated the disputed parcel as if it belonged to Woodbridge and did 

so (as discussed further below) without express or implied 

authorization. 
21

¶ 31 Lo Viento’s reliance on Trask to support this argument is 

misplaced. In that case, the division broadly stated as follows: “In 

general, when an adverse occupier acknowledges or recognizes the 

title of the owner during the occupant’s claimed prescriptive period, 

the occupant interrupts the prescriptive use.” Trask, 134 P.3d at 

553. With all due respect to the division in Trask, that statement is 

too broad, as we hope the foregoing discussion makes clear. See In 

re Estate of Gattis, 2013 COA 145, ¶ 27 (one division of the court of 

appeals isn’t bound by the decisions of other divisions). And the 

case Trask cites for this proposition, Pagel v. Reyman, 628 P.2d 166 

(Colo. App. 1981), on which Lo Viento also relies, doesn’t actually 

support it. In Pagel, the parties executed an agreement recognizing 

the landowner’s title. Id. at 168. This can be seen as an act in 

subordination of the owner’s title.

¶ 32 In any event, we aren’t bound by Pagel either. Pagel cites an 

adverse possession case, Segelke v. Atkins, 144 Colo. 558, 357 P.2d 

636 (1960), in support of its analysis. Pagel, 628 P.2d at 168. As 

discussed above, the rule in the prescriptive easement context 

concerning recognition of title differs from that which applies in the 

adverse possession context.
22

¶ 33 Lastly, Lo Viento argues that it rebutted the presumption of 

adverse use by submitting evidence that in 1991 its predecessor in 

title gave Woodbridge permission to landscape the disputed parcel. 

Lo Viento is correct that a grant of permission would rebut the 

presumption of adverse use. But the record refutes its argument.

In the letter on which Lo Viento relies, Foy said, 

The present owners have no objection to you 

landscaping the property they own as long as 

you have no claim for the property, trees, 

shrubs, etc. for the improvements and in the 

future if they decide to develop the area, the 

Woodbridge Condominium Association would 

not object to this as long as it was in keeping 

with the present properties. 

They also would like to have approval of one 

week’s use in the winter and one week’s use in 

the summer of one of the condominiums that 

is there now and they would only pay the 

service charges or the maid’s service, 

whichever you call it[,] for the use of this 

property.

¶ 34 The trial court found that (1) the permission offered in this 

letter was conditional and (2) Woodbridge never agreed to the 

conditions. These findings are supported by record evidence, 

including the letter itself and witness testimony. So in the end, 

there was no permission. It follows that Lo Viento failed to rebut 
23

the presumption of adverse use. And because Woodbridge 

established the other required elements — a conclusion Lo Viento 

doesn’t contest — it is entitled to a prescriptive easement. 

¶ 35 We turn then to Lo Viento’s challenges to the trial court’s 

findings as to the appropriate scope of the easement. 

B. The Scope of the Easement

¶ 36 The trial court ruled that Woodbridge has a prescriptive 

easement over most of the disputed parcel (all of it except the area 

south of the gravel road) for (1) maintaining the gravel road (as it 

currently exists) for purposes of providing access to the Woodbridge 

complex and parking along Building 31; (2) maintaining the 

disputed parcel as the entrance to the Woodbridge complex, with 

the rights to landscape the area, maintain signage, and use 

sprinklers and electrical lines; (3) skier access across the disputed 

parcel to the bridge; and (4) controlling drainage and erosion. And 

the trial court ruled that Woodbridge’s easement is exclusive — that 

is, only Woodbridge can use the disputed parcel for the approved 

purposes. The following diagram shows by cross-hatching the 

portion of the disputed parcel south of the gravel road not subject 

to the easement.
24

¶ 37 Lo Viento attacks each aspect of the trial court’s rulings as to 

the scope of the easement. As to the four approved categories of 

uses specifically, Lo Viento essentially challenges the evidentiary 

bases for the court’s conclusions, though it mixes in a couple of 

challenges to exclusivity. As to exclusivity generally, Lo Viento 
25

appears to argue that Colorado law doesn’t allow for exclusive 

prescriptive easements at all. 

1. Standard of Review

¶ 38 The parties assert, citing Cielo Vista Ranch I, LLC v. Alire, 2018 

COA 160, ¶ 65, that we should review the trial court’s findings as to 

the scope of the easement for an abuse of discretion. We don’t 

agree. The division in that case said that “[w]here compliance with 

the appellate mandate requires evidentiary or other post-remand 

factual determinations by the trial court, we review for an abuse of 

discretion.” Id. But the division was considering whether the 

process employed by the trial court on remand conformed to the 

mandate. And the division cited Murray v. Just In Case Business 

Lighthouse, LLC, 2016 CO 47M, ¶ 16, which concerned a challenge 

to an evidentiary ruling. Lo Viento doesn’t mount any such 

procedural or evidentiary challenge; rather, it challenges certain of 

the trial court’s findings of fact and certain discrete principles of law 

applied by the trial court. 

¶ 39 As already noted, we review a trial court’s findings of fact for 

clear error, M.D.C./Wood, 866 P.2d at 1384, and we review legal 

issues de novo, Brown, 197 P.3d at 249.
26

2. Application: The Scope of the Easement is Appropriate

a. Permissible Uses

¶ 40 Before addressing directly Lo Viento’s arguments as to each of 

the four categories of permissible uses, we pause to acknowledge 

the legal principles governing any determination of permissible use 

under a prescriptive easement. The supreme court articulated 

those principles in Wright v. Horse Creek Ranches, 697 P.2d 384 

(Colo. 1985):

• “[T]he extent of an easement created by prescription is 

fixed by the use through which it was created.” Id. at 

388 (quoting Restatement of Property § 477 (Am. Law 

Inst. 1944)).10

• “[T]he beneficiary of an easement established by 

prescription will be permitted to vary the use of the 

 

10 The current version of the Restatement appears to be consistent 

with this notion. See Restatement (Third) of Property: Servitudes 

§ 2.17 cmt. f (Am. Law Inst. 2000) (“The interest or estate burdened 

by a prescriptive servitude is determined by the nature and extent 

of the use made during the prescriptive period and by the interest of 

the person who had the legal right to terminate the use before the 

prescriptive period expired.”); id. at § 4.1(1) (“A servitude should be 

interpreted to give effect to . . . the circumstances surrounding 

creation of the servitude . . . .”).
27

easement to a reasonable extent.” Id. at 388-89. To 

determine “whether a particular use is permissible under 

an easement created by prescription a comparison must 

be made between such use and the use by which the 

easement was created with respect to (a) their physical 

character, (b) their purpose, [and] (c) the relative burden 

caused by them upon the servient tenement.” Id. at 388 

(quoting Restatement of Property § 478). 

• In determining whether a particular use is permissible, 

the court should also consider “the needs which result 

from a normal evolution in the use of the dominant 

[estate] and the extent to which the satisfaction of those 

needs increases the burden on the servient estate.” Id. at 

389 (quoting Restatement of Property § 479). 

¶ 41 With these principles, and the appropriate standard of review, 

in mind, we reject Lo Viento’s challenges to the four categories of 

permissible uses found by the trial court as follows:

(1) Gravel road. Contrary to Lo Viento’s suggestion, the 

evidence didn’t show that the gravel road was used by 

pedestrians (other than Woodbridge residents and 
28

guests) during the prescriptive period. The historic use 

of the bridge, on which Lo Viento relies, is beside the 

point because the bridge isn’t part of the disputed 

property. And evidence supports the trial court’s 

finding that the gravel road was regularly used by 

vehicles for access to and parking near the Woodbridge 

complex, and by Woodbridge residents, guests, and 

maintenance personnel exclusively. Thus, the trial 

court’s determination of an exclusive easement for these 

purposes must stand.11

 

11 Also, Lo Viento’s reliance on McIntyre v. Board of County 

Commissioners, 86 P.3d 402, 413 (Colo. 2004), for the proposition 

that “[t]ravel over vacant land is deemed permissive and cannot 

serve as the predicate for a prescriptive use” is misplaced. The 

disputed property isn’t truly vacant: it has a roadway, landscaping, 

and signage. 4 Richard R. Powell, Powell on Real Property

§ 34.10[2][c], at 34-97 (Michael Allan Wolf ed. 2016) (presumption 

of adversity may not apply if “the land over which the easement is 

claimed is open, unenclosed, and unimproved”) (emphasis added). 

And, in any event, McIntyre involved a claim to a public prescriptive 

easement, a situation involving different considerations of public 

policy. See also Lobato, 71 P.3d 938 (approving private prescriptive 

easement over large swaths of vacant land); Simon by Simon v. 

Pettit, 651 P.2d 418 (Colo. App. 1982) (involving claim of a public 

prescriptive easement), aff’d, 687 P.2d 1299 (Colo. 1984).
29

(2) Entrance to the Woodbridge complex. Lo Viento’s 

contention that the scope of the easement is fixed by the 

first use made of the disputed parcel — mowing, 

weeding, and watering to control drainage — is wrong 

on the law and inconsistent with the facts, as found by 

the trial court. The trial court found that Woodbridge 

made several different uses of the disputed parcel 

beginning as early as 1975, and Lo Viento cites no 

authority for the proposition that a prescriptive 

easement can have only one permissible use. Indeed, 

Wright holds to the contrary, adopting, as it did, 

sections 478 and 479 of the Restatement. And record 

evidence supports the trial court’s findings that the 

additional uses Woodbridge made of the disputed 

property over the years — e.g., adding landscaping and 

signage — were consistent with the uses through which 

Woodbridge obtained the easement — all of which 

related to treatment of the disputed parcel as an 

entrance to the Woodbridge complex. Put another way, 

these additional uses were merely changes in degree, 
30

not kind, and didn’t add any appreciable burden to the 

servient estate. 

(3) Skier access. The trial court found that skiers 

(Woodbridge residents and their guests) use the entirety 

of the developable portion of the disputed parcel. Lo 

Viento’s argument that skiers only used a gravel path is 

nothing more than an invitation for us to reweigh the 

evidence. That isn’t our role. Gagne v. Gagne, 2019 

COA 42, ¶ 51; IBC Denver II, LLC v. City of Wheat Ridge, 

183 P.3d 714, 719 (Colo. App. 2008).12

(4) Drainage and erosion control. Lo Viento’s challenge to 

this category of permissible uses is difficult to discern. 

It appears to want us to change the easement to 

“mandat[e] drainage control.” But it isn’t entirely clear 

how that is any different from what the trial court 

ordered. (Perhaps Lo Viento wants the use for drainage 

 

12 Lo Viento also asserts, in purely conclusory fashion, that allowing 

skier access over most of the disputed parcel “affects a taking in 

violation of . . . Article II, § 4 of the Colorado Constitution.” We 

don’t consider undeveloped and unsupported arguments. Am. 

Family Mut. Ins. Co. v. Am. Nat’l Prop. & Cas. Co., 2015 COA 135, 

¶ 42.
31

control to be not merely permissible, but mandatory.) 

And Lo Viento hasn’t pointed us to any place in the 

record where it asked the trial court for this relief. We 

are a court of review, not first look. See C.A.R. 

28(a)(7)(A) (the appellant’s opening brief must indicate 

“the precise location in the record where the issue was 

raised and where the court ruled”); Estate of Stevenson 

v. Hollywood Bar & Cafe, Inc., 832 P.2d 718, 721 n.5 

(Colo. 1992) (“Arguments never presented to, considered 

or ruled upon by a trial court may not be raised for the 

first time on appeal.”).

¶ 42 In sum, we don’t see any error in the trial court’s 

determinations as to the types of permissible uses.

b. Exclusivity

¶ 43 We also reject Lo Viento’s contention that Colorado law doesn’t 

recognize exclusive easements. The cases on which Lo Viento 

relies, LR Smith Investments, Wright, and Lazy Dog Ranch v. 

Telluray Ranch Corp., 965 P.2d 1229 (Colo. 1998), don’t address 

that issue. But the Restatement recognizes that a prescriptive 

easement may be exclusive: “If the use is exclusive, the servitude 
32

obtained is exclusive . . . .” Restatement (Third) of Property: 

Servitudes § 2.17 cmt. a; see also Gray v. McCormick, 84 Cal. Rptr. 

3d 777, 785-87 (Cal. Ct. App. 2008); Otay Water Dist. v. Beckwith, 3 

Cal. Rptr. 2d 223, 226-27 (Cal. Ct. App. 1991); 7 Thompson on Real 

Property § 60.04(a)(1)(iii), at 534 (2d David A. Thomas ed. 2006) 

(recognizing that an exclusive easement can occur by prescription). 

And the trial court found that Woodbridge’s use was exclusive — a 

finding that enjoys record support.

¶ 44 Relatedly, Lo Viento seems to assert that the trial court went 

too far in determining how Woodbridge may use the disputed parcel 

because the approved uses effectively prevent Lo Viento from 

making any beneficial use of the property. But Lo Viento hasn’t 

provided us with any coherent, developed argument on the point. 

We therefore don’t address it. See Vallagio at Inverness Residential 

Condo. Ass’n v. Metro. Homes, Inc., 2017 CO 69, ¶¶ 39-40 (declining 

to address conclusory assertions offered without supporting 

argument or authority); Barnett v. Elite Props. of Am., Inc., 252 P.3d 
33

14, 19 (Colo. App. 2010) (“We will not consider a bald legal 

proposition presented without argument or development.”).13

III. Conclusion

¶ 45 We affirm the trial court’s judgment. 

JUDGE HARRIS and JUDGE BROWN concur.

 

13 On the one hand, the current version of the Restatement 

recognizes that courts in some circumstances have been reluctant to 

find prescriptive easements when the use by the claimant is so 

extensive that the servient estate would be rendered valueless. 

Restatement (Third) of Property: Servitudes § 2.17 cmt. d and Note 

to cmt. d. On the other hand, the Restatement also recognizes that 

the owner’s use of the servient estate is limited to any use that 

doesn’t interfere with the easement holder’s use consistent with the 

easement. Id. at cmt. a; see also Restatement of Property § 481 

cmt. a (Am. Law Inst. 1944) (“The limitations of this privilege 

correspond with the extent of the easement.”). “The possessor of 

land subject to an easement created by prescription is privileged, as 

against the owner of the easement, to make such uses of the 

servient tenement as are not incompatible with the use authorized 

by the easement.” Restatement of Property § 481. And the 

prescriptive easement doctrine favors long-time users of property 

and penalizes owners who sleep on their rights, for several sensible 

reasons. Restatement (Third) of Property: Servitudes § 2.17 cmt. c. 

Lo Viento’s deficient briefing precludes us from properly considering 

this relatively complicated issue, as does its failure to have 

developed a sufficient factual record for us to assess the accuracy of 

its claim that it is unable to make any beneficial use of the disputed 

parcel.