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Home My WebLink About20060489.tiff _ MEMORANDUM (D o K a' c) TO: Cindy Rubiano, Timber Rock Landscaping c) • u� Jeff. Aragon, Timber Rock Landscaping O)ro `° PROM: Matt Delich 0 .-*.r4::) t r- O DATE: October 15, 2004 SUSJECT: Timber Rock Landscaping - Request traffic count and trip T generation comparison (File: 0484ME01) lli • co Cindy Rubiano, Timber Rock Landscaping, requested traffic count data and a trip generation comparison related to the existing o landscape materials operation. Timber Rock Landscaping is located cd cc west of WCR17, approximately 0.65 miles north of Us34. Access to o Timber Rock Landscaping is provided via a easement/access road which ?> "-- d) also serves 5 single family dwelling units and a dairy farm. Timber ' Rock Landscaping sells and delivers raw landscaping materials anc. has 6 employees on an average day. C7 _ h n. Saturday morning and afternoon peak hour traffic counts at the "; easement/access road were obtained on September 18, 2004. The count ti data was obtained at 9:45-10:45am. and 1:45-2:45pm. For traffic using the easement/access road, vehicles were distinguished between those related to Timber Rock Landscaping and those related to the other land uses. This was done in order to determine the trip generation of Timber Rock Landscaping in a Saturday peak hour. This observed trip generation is displayed in Table 1. These counts were performed late in the "landscape season." It is acknowledged that trip activity in May and June arc likely to be higher than trip activity in September. Morning and afternoon traffic counts at the easement/access road were obtained by a neighbor of Timber Rock Landscaping on Wvarious weekdays and weekends from May 15 to June 11, 2003. These counts are intermittent for the days that were counted. This d O information was provided to Weld County and is part of the public z E record. For traffic using the easement/access road, vehicles were w distinguished between those related to Timber Rock Landscaping and w z those related to the other land uses. This observed trip generation V z is displayed in Table 2 . The traffic counts were averaged, for the J W Saturday s and weekdays that were counted. W o Q '- Table 3 shows the trip generation of two land uses that are r similar in function to that of Timber Rock Landscaping from Trip o Generation, 7`'• Edition, ?'_E. Trip Generation, 7C° Edition is the N customary reference used by traffic engineers in order to estimate a t. the traffic generated by a development or land use. It is a F reference document accepted by Weld County. The land uses, Nursery W as (Garden Center) and Building Materials Store, were compared to the o observed trip generation of the Timber Rock Landscaping shown in y I- LL Table 2 . hs can be seen, Timber Rock Landscaping generates less ..+.. weekday and weekend peak hour traffic than the two similar land uses. h- 2006-0489 V It is noted that the count by the neighbor in not out of line with counts performed by us (with seasonal adjustment) . The traffic counted by the neighbor is less than the trip generation as calculated for a similarly functioning land use. It is concluded that while Timber Rock Landscaping generates more traffic than a single family residence on a relative comparison basis, the absolute volume of trips generated is not a large number. For example, using the average trip generation as counted by the neighbor, the average spacing between vehicles would be more than five minutes between each entering or exiting vehicle. This is considered to be very light traffic. • TABLE 1 Trip Generation Counted by Engineer Saturday Afternoon Use Size — In Out Timber Rock Landscaping 6 Employees 5 4 TABLE 2 Average Trip Generation Counted by Neighbor Weekday Morning Weekday Afternoon Use Size In Out In I Out Timber Rock Landscaping 6 Employees 4 3 4 4 Saturday Afternoon Use Size In Out Timber Rock Landscaping 6 Employees 11 11 TABLE 3 Trip Generation for Various Uses from Trip Generation, 7th Edition, ITE Weekday Morning I Weekday Afternoon Code Use Size Rate In Rate I Out Rata In Rata Out 817 Nursery(Garden Center) 6 Employees 121 7 , 1.11 7 , 1.33 8 128 8 812 Building Materials She 6 Employees 2.13 13 1.81 11 1.92 1 12 1.91 11 Saturday Afternoon Code Use Size Rate In Rate Out 817 Nursery(Garden Center) 6 Employees 2.95 13 2.33 17 812 Building Materiels Store 6 Employees 2.67 16 2.56 15 r Jan 11 06 09: 11a RepeL Documents 303-979-7865 p- 2 of 6' Re&dDoewueat4, A 4. C. 1212770. tens dee. . 4ittetac, e0 70127-4568 (3031 979-7174 71,12 (3031 941-7165 Curriculum Vitae & Resume (Highlighted) Richard B. (Dick) Lewis; Owner/Forensic Document Examiner Educational Background: Mesa Jr.College,Grand Junction,CO 1966 Arapahoe Community College,Littleton,CO 1978- 1980 Associates Degree;Criminal Justice-Administration University of Colorado at Denver 1980—1983 Employment Background: U. S.Marine Corps. 1966—1970 Colorado State Patrol 1971 — 1975 Jefferson County(CO)Sheriffs Dept. 1975—1979 Eighteenth Judicial District Attorney's Office(CO) 1979—1988 Colorado Attorney General's Office 1988 -2004 Training: Colorado State Patrol Academy 1971 Jefferson County Sheriffs Dept.Academy 1976 Arapahoe Community College 1980 Forensic Document Examination; Taught by Andrew J. Bradley-Recognized Expert United States Secret Service: Questioned Documents Course 1997 Internship: 1997-1998 Examination of documents,photographing and preparing court e h bite,:=citing;0n:12...zit:az_.ajustification for opmic:z L-. _c civil&criminal matters. Served under the direct supervision of Andrew J. Bradley,Handwriting/Forensic Doc.Examination Expert. Numerous specialized investigative and supervisory courses 1971-2003 Offered by various law enforcement agencies&institutions 1 Jan 11 06 09: lla Ren?L Documents 303-979-7865 p. 3 • Court Qualified Expert Testimony: Not including admin.hrgs.Case List available upon request. 1"Judicial District Ct.-Jefferson County,CO;in Traffic Accident Investigations l■ 4 - Y win Doc.Fvam/Handwriting Camparison/ldentificatim 2a°Judicial District Ct.-Denver County,CO ;in Investigative Techniques and Practices 2°° " -Denver" ";in Doc.Exam./Handwriting Comparison/Identification 13th µ " µ -Iogan " 17'" µ 4 Y -Adams 4 44; 44 " µ Y le 4 " - .v Arapahoe 4 Y; 18° Y " -Douglas " 44; " 4 µ 4 4 Lectures/Teaching: Colorado State Investigators'Assn.: Periodic Training Instructor Investigative Techniques,Search&Seizure,Interview&Interrogation, Forensic Document Examination Denver Police Academy: Periodic Lecturer Interagency Relations—Legal Services San Luis Valley Peace Officers'Assn.: Guest Lecturer Interview&Intarogation Metropolitan State College,Denver: Guest Lecturer Forensic Document Examination Colorado Technical University,Denver/Englewood;Guest Lecturer Forensic Document Examination Colorado Welfare Fraud Council;Pueblo: In Service Training Speaker Forensic Document Examination Jefferson County Sheriff's Dept.: In Service Training Speaker Forensic Document Examination ACFE—Assn.Of Certified Fraud Examiners: Guest Speaker Forensic Document Examination PPIAC—Professional Private Investigators'Asst.: Guest Speaker Forensic Document Examination RMASIU—Rocky Mountain Assn.Of Special Investigation Units; Guest Speaker Forensic Document Examination Investigative Techniques Continuing Education: International Journal of Forensic Document Examiners Articles,research,developments,practices,techniques,legal opinions,etc. National Asst.of Document Examiners(NADE); & Association of Forensic Document Examiners(AFDE) Periodic conferences,seminars,lectures,publications 2 Jan 11 06 09: 11a Re?eL Documents 303-979-7865 p. 4 Professional&Civic Organ zationNAffiliatioos: National Association of Document Examines(MADE) Past Member Association of Forensic Document Examiners(AFDE) Member Colorado State Investigators'Association(CSIA) Member President(2 Terms) President Elect(Vice President)(2 Terms) Treasurer(3 Tams) Westgold Meadows Homeowners'Assn.Board of Directors Past Member Past Vice President,Past Treasurer,Past Secretary Westgold Meadows Metropolitan District Board of Directors Member President Equipment available&used la Practice: Microscopes Magnification and measuring devices Infrared Ultraviolet Forensic Photography&Developing Equipment Rev6.2005 3 (., Jan 26 06 10: 54a ReBeL Documents 303-919-7865 P. 2 ReVa Doeume a, .e.Z. e, 12127 era. Vert",4ae. , LikYeto e, e0 80127-4568 (303) 979-7174 7,40% (303) 941-7165 Jan.26.2006 Client/Requestor. Mr.Jeffrey J. Richards,Esq- Anstine,Hill,Richards&Simpson 899 Logan St., Suite#406 Denver,CO 80203.3155 Subject/Case Title: Weinmeister,Garry&Kathleen Date Submitted: Jan.23&24,2006 On the above dates I received the below listed(K-)documents as exhibiting"Known"signatures and/or writing of the individuals as indicated together with an original of a single"Questioned"communication/letter"To: Weld County Board ofCommissioners"stamped as having been received by that body on June 8,2004 at 9:05 AM and bearing what appears to be signatures of Garry A&Kathleen E.Weinmeister. It was requested that I make a comparison of those signatures to the"Knowns"submitted to determine if the persons who wrote the"Known" signatures of Mr.&Mrs. Weinmeister could be identified as the writer(s)of the two"Questioned"signatures on the communication/letter and, if not, if any of the writers of the other"Knowns"could be so identified. Copies designated by* "Known": K-1 Letter"To: Weld County Commissioners" 9/20/04 Garry&Kathleen Weinmeister K-2 Attendance Record 10/20/04 Kathleen Weinmeister Cindy Rubiano Marcelk Geudner Paul It Geudner K-3 Letter"To: Weld County Department of Planning Services"7/14/03 Garry&Kathleen Weinmeister K-4 "Proof of Death Beneficiary's Statement" Joyce E.Weinmeister K-5' " " " " " &Garry A.Weinmeister K-6* Assignment of Beneficiary 5/21/01 Kathleen E.Weinmeister K-7• Statement of Funeral Goods&Services... 5/21/01 " " " K-8' Old American Ins.Co.—Claimant's Statement 5/21/01 " " " K-9 Notarized Note 10/17/05 " " a K-10 Psychological Stress Evaluator Release 11/30/04 " " " K-I 1 Temporary Sales Tax License 11/28/05 " " K-12 Medical Release 1/28/05 " " K-13 West Ridge Animal Hosp. Patient Info.Sheet 6/4/02 " " " K-14 " " " Info.Sheet 10/29/02 " " " K-I5 " " " Checkln Form 4/30/05 " " " K-I6 " " Surgical Consent 5/20/03 " "&Jeff Weinmeister K-17 " " Checkln Form 8/26/05 Kathleen E.Weinmeister K-18 Notarized Statement 10/18/05 Garry A.Weiameister K-19 FAX Sheet 3/22/04 " " " K-20 Management One—Owner's Disclosure 4/1/03 " a " K-21 ...Windsor—Water/Sewer Disconnection Notice 11/20/03 " " " K-22 Bill of Lading#871797 4/18/00 " " " K-23 WW Capital Budget—Project Review Form 7/16/99 " .. " K-24 Kodak Division—Project Report 7/20/99 .. " " K-25 Bill of Lading#496651 11/4/03 " " " --- K-26 "Estimate" 5/3/95 " " " 1 .mot ' Jan 26 06 10:54a ReBeL Documents 303-9 /9-7865 p. 3 "Known": (Coot) K-27 Kodak... —2001 Internal Audit Form 10/24/02 « « « K-28 Piping Test Report 12/13/05 « « K-29 FEL Gate Review Checklist... 3/5/02 « « « K-30 Work Order 6/13/02 « « « K-3 I KCD HSE Review Checklist 3/4/02 « « « K-32 Loan Application 3/28/03 Garry&Kathleen Weinmeister K-33 Borrower's Acknowledgement... 4/4/03 « « « « K-34&K-35 Personal Checks 8/30/95&9/10/95 Garry A.Weinmeister K-36 Checking Deposit Slip 9/5/05 « « « K-37 thru K-44 Personal Checks 8/25/95 thru 5/12/00 Kathleen E.Weinmeister K-45 thru K-49 Personal Checks 4/18/00 thru 5/6/00 Garry A.Weinmeister Conclusion/Opinion: After thorough examination and comparison of the documents as provided,and considering the quality of the copies submitted,it is my opinion that; I, the"Known"signatures and/or writing of the individuals as listed above and seen on documents K-I thru K-49 was examined and compared and was found; a. to exhibit sufficient quantity,quality and legibility to illustrate a range of variation of the respective writer(s)to be appropriate for comparison and b. to have been,within their specified groupings,written by the same person. 2. the signatures seen on the"Questioned"document were examined and were found to exhibit sufficient quality and legibility to be appropriate for comparison. 3. though there are similarities noted between the"Known"signatures of Garry A.&Kathleen E. Weinmeister and the"Questioned"signatures,the writing of the"Questioned"signatures exhibits,in both instances, characteristics such as bluntness and retracing of pen strokes,poor line quality,tremor and significant differences in letter formation not found in any of the numerous"Known"samples. Consistent with#1 thru#3 above and regarding both"Questioned"signatures,the persons who wrote the"Known" signatures and/or writing of Garry A.&Kathleen 1G Weinmeister did not write the referenced"Questioned" signatures. The characteristics referenced in#3 above are consistent,again in both instances,with attempts to mimic or draw the signature of another person not the writer either by tracing a genuine signature or copying a model signature. In such an instance,it is very unlikely that the natural characteristics of a writer will appear in the copied writing. As a result,I can neither identify nor eliminate any of the writers of the additional"Known" signatures and/or writings as having executed the"Questioned"signatures. All documents submitted,as listed above,arc hereby returned to the requester as attachments to this report. R. B.Lewis, Date 06.01-07 2 Westlaw 965 P.2d 1229 Page l �-- 965 P.2d 1229,98 CJ C.A.R. 4761 (Cite as: 965 P.2d 1229) H Briefs and Other Related Documents Supreme Court of Colorado. LAZY DOG RANCH, a New Jersey partnership,Petitioner, v. TELLURAY RANCH CORPORATION, a Colorado corporation; Charles Ergen; and Dan Levere,Respondents. No.97SC529. Sept. 14, 1998. As Modified on Denial of Rehearing Oct. 19, 1998. Servient estate owner filed declaratory judgment action requesting determination of dominant estate owner's rights to access to easement, and requested injunctive relief to keep dominant estate owner from proceeding with development of easement. The District Court, Ouray County, Richard J. Brown, J., granted dominant estate owner's motion for summary judgment. Servient estate owner appealed, and the Court of Appeals affirmed, 948 P.2d 74. After granting certiorari, the Supreme Court, Martinez, J., held that: (1) extrinsic evidence may be relevant to interpretation of deed, overruling Pickens v. Kemper, 847 P.2d 648. (2) determination in prior declaratory judgment action of existence and width of easement involved separate issue, and thus did not collaterally estop action challenging particular use of easement; and (3) fact issue as to permissible uses of easement precluded summary judgment. Reversed and remanded. West Headnotes al Easementst1 141k1 Most Cited Cases "Easement" is a right conferred by grant, prescription, or necessity authorizing one to do or maintain something on the land of another which,although a benefit to land of the former, may be a burden on land of the latter. 1t Easements €3(1) 141k3(1)Most Cited Cases Easement is said to be "appurtenant" to property when benefit or burden of easement runs with an interest in property. u Easements €=:)2 141k2 Most Cited Cases Owners of property are entitled to benefit, or subject to burden, of easement due to their relation to property, and thus, when their property interest terminates, so does their connection to easement. jJ Easements 1 141k1 Most Cited Cases Property burdened by easement is customarily known as the "servient estate", while property benefited by easement is called the "dominant estate." © 2006 Thomson/West.No Claim to Orig.U.S. Govt. Works. 965 P.2d 1229 Page 2 965 P.2d 1229,98 CJ C.A.R. 4761 (Cite as: 965 P.2d 1229) M Easements Cz=1 141k1 Most Cited Cases Easement, regardless of manner of its creation, does not carry any title to land over which it is exercised, nor does it serve to dispossess landowner. J1 Easements €=1 141k1 Most Cited Cases Rule that easement does not carry any title to land over which it is exercised, or serve to dispossess landowner, is altered somewhat in case of easement that is clearly and expressly designated as exclusive, or for sole enjoyment of easement holder. J?1 Easements e= 38 141k38 Most Cited Cases Owner of servient estate enjoys all rights and benefits of proprietorship consistent with burden of easement, while rights of owner of dominant estate are limited to those connected with use of easement. j81 Easements e---)42 141k42 Most Cited Cases Extent of expressly created easement, or in other words, limit of privileges of use authorized by easement, is determined by interpreting conveyance instrument. f Easements 42 141k42 Most Cited Cases Where instrument which creates easement is a deed, court construes instrument as it would any deed. J101 Deeds €93 120k93 Most Cited Cases Court's paramount concern in construing a deed is to ascertain intentions of parties. J111 Evidence X448 157k448 Most Cited Cases Extrinsic evidence may be relevant to determining whether deed is ambiguous; if; after considering such evidence, court decides that language of deed accurately and unambiguously reflects intentions of parties, court should disregard extrinsic evidence for future purposes, and give effect to language of deed, but if court finds deed's terms to be ambiguous, extrinsic evidence will be a useful starting point in court's determination of actual intentions of parties;overruling Pickens v. Kemper, 847 P.2d 648. J121 Deeds 0-1109 120k109 Most Cited Cases Not all extrinsic evidence of parties' intent is relevant to interpretation of deed; however, circumstances relevant to interpreting language of servitude include location and character of properties burdened and benefited by servitude, use made of properties before and after creation of servitude, character of surrounding area, existence and contours of any general plan of development for area, and consideration paid for servitude. Restatement(First)of Property $ 483. J131 Easements €^=38 141k38 Most Cited Cases Where easement is non-exclusive in nature, both holder of easement and owner of land burdened by easement have rights to use property, and consequently, interests of both parties must be balanced in order to achieve due and reasonable enjoyment of both easement and servient estate. J141 Easements € '38 141 k38 Most Cited Cases © 2006 Thomson/West.No Claim to Orig. U.S. Govt. Works. 965 P.2d 1229 Page 3 965 P.2d 1229, 98 CJ C.A.R.4761 (Cite as: 965 P.2d 1229) r-- Unless intentions of parties are determined to require a different result, owner of servient estate may make any use of burdened property that does not unreasonably interfere with enjoyment of easement by its owner for its intended purpose. 1151 Easements€38 141k38 Most Cited Cases 1151 Easements X53 I41k53 Most Cited Cases Unless intentions of parties are determined to require different result, owner of easement may make any use of easement, including maintenance and improvement, that is reasonably necessary to enjoyment of easement, and which does not cause unreasonable damage to servient estate or unreasonably interfere with enjoyment of servient estate. 1161 Easements Er-^'54 141k54 Most Cited Cases Easement holder may not use easement to benefit property other than the dominant estate. 1171 Judgment €634 228k634 Most Cited Cases "Collateral estoppel," or "issue preclusion," bars subsequent litigation of issue if (1) issue is identical to issue actually determined in prior proceeding, (2) party against whom estoppel is asserted was party to, or is in privity with party to, prior proceeding, (3) there is final judgment on merits in prior proceeding, and(4)party against whom estoppel is asserted has had full opportunity to litigate issue in prior proceeding. 1181 Judgment € 724 228k724 Most Cited Cases If issue was determined in prior proceeding, but judgment was not dependent upon that determination, collateral estoppel does not bar relitigation of issue in subsequent action. Restatement(Second)of Judgments § 27. 1191 Judgment '747(.5) 228k747(.5)Most Cited Cases Issues decided in earlier declaratory judgment action, in which trial court had determined that deed reserved non- exclusive, 60-foot wide easement to owner of dominant estate, were not identical to issues presented in subsequent action involving challenge by owner of servient estate to proposed use of easement, and thus, subsequent action was not barred under doctrine of collateral estoppel;owner of servient estate did not challenge existence or width of right of way, or claim that it was not for general purpose of access, and subsequent action instead involved extent of right of parties'rights to use of easement, which was separate issue not litigated in prior action. 1201 Judgment €747(.5) 228k747(.5)Most Cited Cases Issue of proper use of easement is not identical to issue of easement's existence and scope, and thus, prior judicial determination as to existence of easement will not operate under doctrine of collateral estoppel to bar litigation of claim involving use of easement. 1211 Evidence X450(3) 157k450(3)Most Cited Cases Deed reserving unto grantor, its successors, and assigns non-exclusive right of way, access, and utility easement 60 feet in width, upon existing roadways, did not resolve question of permissible use of easement which was created, and thus,extrinsic evidence was relevant to determine scope of easement. I22(Judgment € '181(15.1) 228k181(15.1)Most Cited Cases © 2006 Thomson/West.No Claim to Orig. U.S. Govt.Works. 965 P.2d 1229 Page 4 965 P.2d 1229, 98 CJ C,A,R.4761 (Cite as: 965 P.2d 1229) Genuine issue of material fact as to whether plans by owner of dominant estate to develop its easement across servient estate was permissible use of easement precluded summary judgment in action in which owner of servient estate sought declaratory judgment as to permissible uses. *1231 Tisdel,Hockersmith&Burns,P.C., Robert B. Burns, Ouray, for Petitioner. Cashen, Cheney&Thomas, Robert J.Thomas,Montrose, for Respondents. Justice MARTINEZ delivered the Opinion of the Court. The issue before us is the proper approach for determining whether a particular use of an expressly granted easement over land is permitted. We granted certiorari to decide whether the doctrine of collateral estoppel precludes a challenge to a particular use of an easement when the dimensions of the easement have been established by previous litigation. f FN 11 Because the size of the easement and the use of the easement are distinct concepts, we hold that a party to the earlier litigation is not estopped from challenging a particular use, even if the challenged use takes place within the dimensions of the easement. We hold further that the determination of whether a particular use of an easement by grant is permitted depends in part upon the reasonableness of the challenged use in light of the language and circumstances of the grant. Accordingly, we reverse the judgment of the court of appeals in Lazy Dog Ranch v. Telluray Ranch Corporation, 948 P.2d 74 (Colo.App.1997), and remand the case for further proceedings consistent with this opinion. FN1.We granted certiorari as to the following issues: Whether the court of appeals erred by applying collateral estoppel precluding Lazy Dog from litigating whether Telluray Ranch Corporation could build a thirty-foot wide road upon its sixty-foot wide granted easement. Whether the court of appeals erred by affirming the trial court's determination that a balancing of interests was not necessary and that the thirty-foot wide road was a reasonably foreseeable improvement at the time of the grant. Whether the court of appeals erred by not addressing the trial court's determination that the fact that the easement in question may benefit other property not defined in the original grant of the easement is of no consequence. I. This case continues a protracted dispute between landowners in Ouray County, Colorado. Petitioner Lazy Dog Ranch ("Lazy Dog") and respondent Telluray Ranch Corporation ("Telluray") each own portions of a formerly unified property. For several decades prior to ownership by either Lazy Dog or Telluray, the single parcel was owned by Pleasant Valley Ranch ("Pleasant Valley"). In 1986, Lazy Dog's predecessor in title, Kenneth Vilkin, purchased approximately 530 acres from Pleasant Valley. Lazy Dog acquired this property in 1990. In 1991, Pleasant Valley conveyed the remainder of its property,approximately 6,200 acres,to Telluray. As part of a plan to subdivide its property, Lazy Dog began improving various access roads across its property. One of these access roads, known as the Railroad Grade, actually crosses a small section of Telluray's property. After Telluray placed gates across this portion of the Railroad Grade, Lazy Dog sought a declaratory judgment in the District Court of Ouray County to determine its rights of access across Telluray's property and whether Telluray had a right to place gates across this access. Telluray also *1232 sought determination of its claim of rights of access across Lazy Dog's property. By an order dated May 13, 1994, the trial court made several rulings. First, the court held that the land sale contract between Vilkin and Pleasant Valley(the "Vilkin Contract")did not merge into the warranty deed conveying the Lazy Dog property to Vilkin. Thus, the provisions of the Vilkin Contract not contained in the deed remained fully enforceable. Second, relying in part upon the Vilkin Contract, the court determined that Lazy Dog owned a sixty-foot wide easement across Telluray's (formerly, Pleasant Valley's) property along the Railroad Grade, among other roads. Third, the court balanced the interests of both parties in the subject land and fashioned a compromise in which Telluray was allowed to cross the Railroad Grade with cattle guards rather than gates. Finally, the court found that Telluray owned various easements across Lazy Dog's property. The court found that © 2006 Thomson/West.No Claim to Orig.U.S. Govt. Works. 965 P.2d 1229 Page 5 965 P.2d 1229,98 CJ C.A.R.4761 (Cite as: 965 P.2d 1229) the warranty deed, as modified by a correction deed, between Pleasant Valley and Vilkin "is not ambiguous and reserves to Pleasant Valley Ranch and its successors and assigns a non-exclusive right of way access and utility easement 60 feet in width" along certain roads across Lazy Dog's property, including one known as the Sigafus Cutoff. Thus, the trial court's ruling secured to Telluray, as successor of Pleasant Valley, a sixty-foot wide right of way for access and utilities upon the Sigafus Cutoff across Lazy Dog's property. Lazy Dog subsequently filed a Motion to Amend Findings and Judgment in which it requested that the trial court order's reflect that the historic use of the Sigafus Cutoff was for "agricultural purposes," including the moving of cattle to and from the high country. The trial court denied this request because the easements owned by Telluray were based on documentary grants, rather than on use. Upon review by the court of appeals, the trial court's order was affirmed in all respects. See Lazy Dog Ranch v. Tellurav Ranch Corp., 923 P.2d 313 (Colo.App.1996) ( "Telluray I"), cert. denied, No. 96SC252 (Colo. Sept. 3, 1996). After the trial court's order in Telluray I, Telluray implemented plans to develop its easement along the Sigafus Cutoff. According to Lazy Dog, the Sigafus Cutoff was historically a ten to twelve-foot wide jeep trail along a steep incline. Telluray announced its intention to expand the existing road to thirty feet in width with altered grades. Lazy Dog alleges that Telluray marked all trees within the sixty-foot wide easement for cutting and requested that electric and telephone service to the lots within the Lazy Dog subdivision be shut off in preparation for bulldozing. fFN21 Thereupon,Lazy Dog commenced the litigation that is presently before this court. FN2. As part of its subdivision development, Lazy Dog had installed underground electric, telephone and water service throughout portions of its property. Additionally, Lazy Dog had improved a rough track across its property in order to provide access by passenger car to all lots in the subdivision. This improved road is known as the Windy Road, ostensibly because of the winding switchbacks necessary to accomplish the gain in altitude from the southern portion of Lazy Dog's property to the northern portion. Lazy Dog initiated a declaratory judgment action in the Ouray County District Court requesting a determination of Telluray's rights to access across the easement, and requested injunctive relief enjoining Telluray from proceeding with its development plans. Lazy Dog alleged that Telluray's plans to bulldoze and grade the right of way for a road thirty feet in width would cause severe damage to Lazy Dog's property. Specifically, because of the steep incline involved, Telluray would be required to make deep and wide cuts into the terrain in order to grade the Sigafus Cutoff for a thirty-foot wide road. Thus, Telluray's plans would destroy those underground utilities within the sixty- foot wide easement, remove many trees, and cut impassable swaths across the Windy Road where it intersects with the easement, thereby preventing access to the upper portion of the Lazy Dog subdivision. In addition, Lazy Dog alleged that Telluray had no need to improve the Sigafus Cutoff in the proposed manner because Telluray could use (as it had in the past) the existing Windy Road,which begins and ends in approximately the same*1233 locations as the Sigafus Cutoff. Thus, Lazy Dog maintained that Telluray should not be allowed to implement its plans to improve the easement because the improvements were unreasonable and unnecessary. IFN31 FN3. In an amended complaint, Lazy Dog also alleged that it reasonably relied upon Telluray's consistent use of the Windy Road in expending substantial funds to improve the Windy Road. If it had known of Telluray's plans to alter the Sigafus Cutoff and the concomitant interference with the Windy Road, Lazy Dog claims that it would never have improved the Windy Road. Lazy Dog alleges that Telluray knew or reasonably should have known of this reliance. Telluray responded to Lazy Dog's complaint with a Motion to Dismiss, which the trial court treated as a Motion for Summary Judgment. After a hearing on January 23, 1995, the trial court granted Telluray's motion. The court first ruled that the extent of an easement based upon a grant is defined exclusively by the language of the grant. The court found that the import of the grant's language was established by the Telluray /litigation, and thus Lazy Dog was barred by res judicata from relitigating this issue. According to the court, the earlier litigation established that the grant's language was unambiguous and reserved to Telluray a sixty-foot wide easement for access and utilities. The trial court acknowledged that "the exact scope of the easements" was not litigated in Telluray I; however, the court found that the issue of proper use was subsumed within the issue of the easement's width. The court found © 2006 Thomson/West.No Claim to Orig.U.S. Govt. Works. 965 P.2d 1229 Page 6 965 P.2d 1229,98 CJ C.A.R. 4761 (Cite as: 965 P.2d 1229) that,because Telluray's contemplated use would occur within the sixty-foot wide right of way,the use was permitted as a matter of law: [T]he scope and use of the easement, so long as consistent with a right-of-way access and utility easement, is really unfettered as a matter of law and the Plaintiff cannot in any way restrict Defendants' use and modification of the easement consistent with its use as an access and utility easement. (Emphasis added.) Because the court found that historic use, reasonableness, and necessity were not relevant to the question of whether Telluray could expand the Sigafus Cutoff road to thirty feet in width, the court concluded that no genuine issue of material fact existed. Accordingly, the trial court declined to hold an evidentiary hearing, and granted summary judgment in favor of Telluray. Lazy Dog subsequently filed both a Motion to Amend Order and a Motion to Permit Filings of Supplemental Pleadings. In its Motion to Amend Order, Lazy Dog alleged that the non-merged Vilkin Contract limits Telluray's activities on the easement to "maintenance of the existing roads for the same uses and in the same historical condition as they now are." Lazy Dog requested that the court amend its order to prevent Telluray from expanding the easement beyond its historic use. The trial court denied this motion, stating the contract language was irrelevant because "we are dealing with a well-defined and unambiguous grant of easement of which Lazy Dog was aware when[it] purchased the[]property." In its motion to permit supplemental pleadings, Lazy Dog asserted that it had recently learned that Telluray was using the Sigafus Cutoff to benefit property not appurtenant to the easement. Lazy Dog requested injunctive relief to prevent all use of the easement by Telluray "until such time as it can be shown that the easements can be used only for the reserved purposes for the specifically benefited property." The trial court denied this motion, ultimately concluding that"the fact that [the easement] may benefit some other property is of no consequence." On appeal by Lazy Dog, the court of appeals first determined that "the nature, extent, and use of the easement was the subject of the litigation in Telluray I" and secured to Telluray a sixty-foot wide right of way across Lazy Dog's property. Lazy Dog Ranch, 948 P.2d at 76. The court then held that collateral estoppel barred Lazy Dog from relitigating the width of the easement. See id. Next, the court declared that,because a sixty-foot wide right of way was granted, Telluray's right to widen the road to thirty feet was both "reasonably foreseeable" and "clear from the deed." Id. *1234 The court also found that there was no need for an evidentiary hearing to determine the reasonableness of Telluray's proposed use because "the easement was created by a deed that is specific, definite, and permits the use and improvements proposed by the defendant." Id. The court also approved of the trial court's statements which gave Telluray permission to use the easement "without limitation" and "as they see fit," provided that the use occurred within the granted right of way. Id. at 77. Finally, the court of appeals chose not to address Lazy Dog's claim that Telluray was using the easement to benefit inappropriate lands because the court found that this issue was not presented to or addressed by the trial court. See id. Consequently, the court of appeals affirmed the summary judgment in favor of Telluray. Lazy Dog sought certiorari review by this court. Lazy Dog contends that, while it is barred from relitigating the width of the easement, it is not barred from challenging a particular use of the easement. Lazy Dog argues that, under the law of servitudes,neither party has unfettered discretion to use land burdened by an easement. Lazy Dog asserts that it is therefore entitled to a balancing of its interests in the burdened property with the interests of Telluray in the right of way. Lazy Dog also maintains that the Vilkin Contract restricts Telluray's use of the easement to historical uses.Hence, Lazy Dog claims that genuine issues of material fact exist that preclude summary judgment. II. The resolution of the issues on certiorari rests upon fundamental principles of the law of servitudes, particularly as they relate to an easement created by express grant. Therefore, we will first discuss the legal precepts relevant to interpreting an easement. We will then examine how these principles control the questions before us. A. [ll[21[31[41 An easement is a right conferred by grant, prescription or necessity authorizing one to do or maintain © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 965 P.2d 1229 Page 7 965 P.2d 1229,98 CJ C.A.R.4761 (Cite as: 965 P.2d 1229) n something on the land of another "which, although a benefit to the land of the former, may be a burden on the land of the latter." Barnard v. Gaumer, 146 Colo. 409, 412, 361 P.2d 778,780 (1961); see also Wright v. Horse Creek Ranches, 697 P.2d 384, 387 (Colo.1985) (easement confers upon the holder enforceable right to use property of another for specific purposes). An easement is said to be "appurtenant" to property when the benefit or burden of the easement"runs with" an interest in property. Owners of the property are entitled to the benefit, or subject to the burden, of the easement due to their relation to the property. Thus, when their property interest terminates so does their connection to the easement. See Restatement(Third)of Property: Servitudes § 4.5 cmt. c (Tentative Draft No. 4, 1994) ("Restatement (Third) of Property"). [FN41 The property burdened by the easement is customarily known as the "servient estate," while the property benefited by the easement is called the "dominant estate." See Bijou Irrig. Dist. v. Empire Club, 804 P.2d 175, 183 (Colo.l991). FN4. After circulation of this Tentative Draft in early 1994, the draft was approved, subject to reasonable editorial prerogative, by the members of the American Law Institute on May 17, 1994, and will be published as part of the final Restatement(Third)of Property when the balance of the project is completed. 151161171 An easement, regardless of the manner of its creation, does not carry any title to the land over which it is exercised, nor does it serve to dispossess the landowner. IFN51 See Wright, 697 P.2d at 387. Barnard, 146 Colo. at 412, 361 P.2d at 780. The owner of the servient estate enjoys all the rights and benefits of proprietorship consistent with the burden of the easement; while the rights of the owner of the dominant estate are limited to those connected with use of the easement. See Bijou Irrig. Dist., 804 P.2d at 183. Barnard, 146 Colo. at 412, 361 P.2d at 780. FN5. This rule is altered somewhat in the case of an easement that is clearly and expressly designated as "exclusive" (i.e.,for the sole enjoyment of the easement holder). *1235 1811911101 The extent of an expressly created easement (i.e., the limits of the privileges of use authorized by the easement)is determined by interpreting the conveyance instrument. See, e.g., Bijou brig. Dist., 804 P.2d at 183 (examining the statute creating the easement); Restatement (Third) of Property § 4.1(1)(a). Where the instrument is a deed, we construe the instrument as we would any deed. Our paramount concern in construing a deed is to ascertain the intentions of the parties. See Notch Mountain Corp. v. Elliott, 898 P.2d 550, 557 (Colo.1995); Percifield v. Rosa, 122 Colo. 167, 177,220 P.2d 546, 551 (1950). The proper method for determining the intentions of the parties to a deed has been expressed in a number of ways. For example, in Daum v. Conley, 27 Colo. 56, 59 P. 753 (1899), we examined whether the grantor of land also intended to grant title to water rights used upon the land. We explained that "whether a deed to such land conveys such right depends upon the intentions of the grantors, to be determined from the terms of the deed, or when the latter is silent as to such right, from the circumstances surrounding the transaction." Id. at 64, 59 P. at 756. In a subsequent case, we affirmed the court of appeals' decision in Eisenhart v. Denver, 27 Colo.App. 470, 150 P. 729 (1915), affd, 64 Colo. 141, 170 P. 1179 (1918), in which the court held that the rights of the parties to a deed were controlled by the interpretation of the deed "in accordance with the facts and circumstances attending its execution, so as to learn the intentions of the parties." 27 Colo.App. at 478, 150 P. at 732. However, in Brown v. Kirk, 127 Colo. 453, 257 P.2d 1045 (1953), we expressed the proposition somewhat differently. In Brown, we stated, without citation, that "when a deed is unambiguous and unequivocal, the intentions of the parties thereto must be determined from the deed itself, and extrinsic evidence to alter, vary, explain or change the deed by any such evidence is not permissible." Id. at 456, 257 P.2d at 1046(emphasis added). The so-called "four corners" principle was thereby introduced into our case law. This principle provided that a court should not look beyond the instrument for any purpose unless it first determined that the deed was ambiguous. See Notch Mountain Corp., 898 P.2d at 557. O'Brien v. Village Land Co., 794 P.2d 246, 249(Colo.1990); Radke v. Union Pacific R.R., 138 Colo. 189, 209, 334 P.2d 1077, 1088(1959). A thorough examination of our case law reveals, however, that we have not always applied a rigid "four corners" approach to interpreting a deed. In O'Brien v. Village Land Co., for example, we explained that the question of whether a deed is ambiguous may be answered by reference to extrinsic evidence: In determining whether a deed is ambiguous, a trial court may conditionally admit extrinsic evidence on that issue, but if it is ultimately determined that the document is unambiguous, the conditionally admitted evidence © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 965 P.2d 1229 Page 8 965 P.2d 1229,98 CJ C.A.R. 4761 (Cite as: 965 P.2d 1229) must be stricken. 794 P.2d at 249 n. 2. In doing so, we were guided by principles of contract law, according to which "courts frequently admit extrinsic evidence provisionally, not for the purpose of'varying or contradicting'the writing,but to determine the fact that it is indeed unambiguous." 4 Samuel Williston,A Treatise on the Law of Contracts § 601, at 311 (Jaeger ed.1961); see O'Brien, 794 P.2d at 249 n. 2 (citing Williston and Pepcol Mfg. Co. v. Denver Union Corp., 687 P.2d 1310(Colo.1984)). The use of extrinsic evidence to determine the meaning of a deed's language reflects an approach to interpreting deeds which is similar to that used in interpreting other written instruments, and has been endorsed by the Restatement(Third) of Property. See Restatement(Third) of Property § 4.1 cmt. c("Expressly created servitudes are typically created as the result of contractual transactions, and are properly interpreted according to interpretive rules of the law of contracts."). Accordingly, the Restatement (Third) of Property has eschewed a strict "four corners" rule in favor of a more context-based inquiry. The Restatement (Third) of Property first notes that "a servitude should be interpreted to give effect to and be consistent with the intentions of the parties to an expressly created servitude." Id. § 4.1(1)(a). It explains further that "the *1236 intention of the parties to an expressly created servitude is ascertained from the servitude's language interpreted in light of all the circumstances." Id § 4.1 cmt. c (emphasis added); see also 7 Thompson, Thompson on Real Property § 60.04(a), at 451 (Thomas ed.1994); 25 Am.Jur.2d Easements § 84(1996). The notion that circumstances surrounding the grant may be relevant to interpreting the language of the grant is not a new one. In 1944, the first Restatement of Property discussed the purpose and operation of this principle. See Restatement (First) of Property § 483 (1944) ("Restatement (First) of Property"). The Restatement (First) of Property explains that "it is often impossible to interpret language apart from the circumstances under which it was used." Id. § 483 cmt. d. The Restatement (First) of Property then notes that the relative importance of the circumstances surrounding the conveyance in ascertaining the meaning of a conveyance depends upon the facts of each case: [T]he relative proportion of the contribution of the language of the conveyance and of the circumstances in the light of which the language is construed varies from case to case. In one case, the language will be so clear and complete that little aid may be required from the circumstances; in another, the language may be so incomplete that little aid can be secured from it and much may be required from the circumstances. Id. § 483 cmt. e. Hence, the language of the conveyance (be it general or specific) is the basis for reference to surrounding circumstances. In cases where the language specifically and completely addresses the issue at hand, there will be no need to look to the surrounding circumstances. In light of these principles, several other jurisdictions have rejected a strict "four corners" rule in favor of a more flexible approach to determining the intent of parties to a deed. See, e.g., Penn Bowling Recreation Ctr. v. Hot Shoppes, Inc., 179 F.2d 64, 67 (D.C.Cir.1949); Kolouch v. Kramer, 120 Idaho 65, 813 P.2d 876, 880 (1991); (IRS Corp. v. Ash, 101 I1l.App.3d 229, 56 I1l.Dec.749, 427 N.E.2d 1295, 1299-1300 (1981); Wvkoffv. Barton, 646 P.2d 756, 758 (Utah 1982); Lakes at Mercer Island Homeowners Ass'n v. Witrak, 61 Wash.App. 177, 810 P.2d 27,29 (1991). The Supreme Court of Utah has provided a typical explication of this more flexible approach, especially with respect to easements: It is also established in this state that a deed should be construed so as to effectuate the intentions and desires of the parties, as manifested by the language made use of in the deed. Further, when the deed creates an easement the circumstances attending the transaction,the situation of the parties, and the object to be obtained are also to be considered. Wykoff, 646 P.2d at 758(quoting Wood v. Ashby, 122 Utah 580,253 P.2d 351,353 (1952)). f 11)Thus, the weight and momentum of authority is behind the more flexible approach to interpreting a deed that we articulated in O'Brien, [FN6)and we reaffirm that approach. Moreover, upon elaboration, it becomes clear that our position in O'Brien closely resembles that of the Restatements of Property. In O'Brien, we explained that extrinsic evidence may be relevant to determining whether a deed is ambiguous. See 794 P.2d at 249 n. 2. If, after considering this evidence, a court decides that the language of the deed accurately and unambiguously reflects the intentions of the parties, the court should disregard the extrinsic evidence for future purposes, and give effect to the language of the deed. If, however, the court finds the deed's terms to be ambiguous, the extrinsic evidence will be a useful starting point in the court's determination of the actual intentions of the parties. See 4 Williston, A Treatise © 2006 Thomson/West.No Claim to Orig.U.S. Govt. Works. 965 P.2d 1229 Page 9 965 P.2d 1229,98 CJ C.A.R.4761 (Cite as: 965 P.2d 1229) on the Law of Contracts § 601 at 310-15. FN6. In addition to O'Brien, we displayed a willingness to look beyond the "four corners" of the deed in Radke, 138 Colo. at 210, 334 P.2d at 1088 in order to ascertain the meaning of the deed. In that case, after finding the deed's language "not ambiguous" and ostensibly declining to look beyond this language, we were constrained to point out that extrinsic evidence confirmed that the parties' intentions were consistent with the terms of the deed. Id. *1237 Similarly, the Restatement (Third) of Property calls for a court to consider "all the circumstances" surrounding the servitude's creation to ascertain the meaning of the servitude's language (i.e., the true intentions of the parties). Restatement (Third) of Property § 4.1 cmt. c. After determining the meaning of the language, the court should give effect to it,regardless of any contrary view reflected by extrinsic evidence. Accordingly,both the O'Brien approach and the Restatement approach allow a court to consider extrinsic evidence to arrive at the meaning of a servitude's language. Under neither approach may extrinsic evidence be used to contradict the language of the written instrument; rather, extrinsic evidence is used to explain and give context to the language. [FN71 FN7. For further explanation of this point, the Restatement (Third) of Property directs us to the Restatement (Second) of Contracts, which observes, "It is sometimes said that extrinsic evidence cannot change the plain meaning of a writing, but meaning can almost never be plain except in context." Restatement (Second) of Contracts § 212 cmt. b.; see also 3 Arthur Corbin, Corbin on Contracts § 579, at 421-22 (1960) (admitting extrinsic evidence for the purpose of discovering the meaning of an agreement's terms does not violate the parol evidence rule because such evidence "does not vary or contradict the written words; it determines that which cannot be varied or contradicted"). In interpreting this language, it is important to recall the special role of an instrument that conveys an interest in land. The parties to an expressly created servitude generally intend to bind successors to an interest in the land for an indefinite period of time. The written instrument therefore assumes great importance as the primary source of information to prospective purchasers of the land. See Restatement(Third) of Property § 4.1 cmt. c. Thus, in most cases, it is not appropriate to seek a particular, idiosyncratic meaning adopted by the parties to the original instrument. Rather, "the language used in creating a servitude ordinarily should be interpreted to accord with the meaning an ordinary purchaser would ascribe to it in the context of the parcels of land involved." Id. 1 121 Consequently, not all extrinsic evidence of the parties'intent is relevant to the interpretation of a deed. In light of the correlation between our position and that expressed by the Restatement(Third) of Property, we naturally find useful the examples of extrinsic evidence described therein. Circumstances relevant to interpreting the language of a servitude include the location and character of the properties burdened and benefited by the servitude,the use made of the properties before and after creation of the servitude, the character of the surrounding area, the existence and contours of any general plan of development for the area, and consideration paid for the servitude. Id.; see also Restatement(First) of Property§ 483. This list of relevant considerations is designed to implement the primary purpose of effectuating the true intentions of the parties to the granting instrument(to the extent that an ordinary purchaser of the land could ascertain those intentions). B. There may be instances where the instrument creating the servitude is silent as to a matter that affects the operation of the servitude. See Restatement(Third) of Property, Introductory Note to Chapter 4; see also Bijou Irrig. Dist., 804 P.2d at 183-84 (statute creating easement silent as to servient owner's right to recreational use of reservoir); Schold v. Sawyer, 944 P.2d 683, 685 (Colo.App.1997) (deed silent as to propriety of gates across the easement); Wulf v. Tibaldo, 680 P.2d 1348, 1350 (Colo.App.1984) (instrument creating easement silent as to its width). In some cases, the intentions of the parties regarding a particular matter may be difficult to determine, even after reference to all the relevant circumstances. In these cases, courts have developed a system of"default rules" that supply necessary terms of the easement. See, e.g., Restatement(Third)of Property,Introductory Note to Chapter 4, § § 4.3 to 4.12. These rules, in large part, determine the rights of the respective landowners according to a reasonableness standard because it is presumed that, absent clear authorization in the written *1238 instrument for the particular use, the parties to the original instrument did not intend unreasonable use of the easement. Those © 2006 Thomson/West.No Claim to Orig.U.S. Govt. Works. 965 P.2d 1229 Page 10 965 P.2d 1229,98 CJ C.A.R.4761 (Cite as: 965 P.2d 1229) default rules of reasonableness that are relevant to the instant case are discussed below. f 131 As previously explained, where an easement is non-exclusive in nature,both the holder of the easement and the owner of the land burdened by the easement have rights to use the property. Consequently, the interests of both parties must be balanced in order to achieve due and reasonable enjoyment of both the easement and the servient estate. See Riddell v. Ewell, 929 P.2d 30, 31 (Colo.App.1996); Hornsilver Circle, Ltd. v. Trope, 904 P.2d 1353 1357 (Colo.App.1995); Osborn & Caywood v. Green, 673 P.2d 380,383 (Colo.App.1983); Restatement(Third) of Property § 4.9 cmt. c; 7 Thompson, Thompson on Real Property § 60.04(a)(1), at 451; 25 Am.Jur.2d Easements § 81. 11411151 Unless the intentions of the parties are determined to require a different result, the owner of the servient estate may make any use of the burdened property that does not unreasonably interfere with the enjoyment of the easement by its owner for its intended purpose. See Bijou Irrig. Dist., 804 P.2d at 183. Title Guar. Co. v. Harmer, 163 Colo. 278, 281, 430 P.2d 78, 80 (1967); Hornsilver Circle, Ltd., 904 P.2d at 1357' Restatement (Third) of Property § 4 .9. Conversely, the owner of the easement may make any use of the easement(including maintenance and improvement) that is reasonably necessary to the enjoyment of the easement, and which does not cause unreasonable damage to the servient estate or unreasonably interfere with the enjoyment of the servient estate. See Bijou Irrig. Dist., 804 P.2d at 183. Knudson v Frost, 56 Colo. 530, 535, 139 P. 533, 535 (1914); Restatement (Third)of Property§ 4.10; 3 Herbert Tiffany, The Law of Real Property§ 810, at 347(Jones ed.1939). f 161 In addition, an easement holder may not use the easement to benefit property other than the dominant estate. See Riddell, 929 P.2d at 32. Restatement(Third) of Property § 4.11; 7 Thompson, Thompson on Real Property § 60.04(a)(1)(ii); 25 Am.Jur.2d Easements § 86. As discussed by the Restatement(Third) of Property, the "rationale [behind this rule] is that use to serve other property is not within the intended purpose of the servitude. This rule reflects the likely intent of the parties by setting an outer limit on the potential increase in use of the easement brought about by normal development of the dominant estate." Restatement(Third)of Property§ 4.11 cmt. b. With the foregoing principles of the law of servitudes in mind, we now turn to the certiorari issues and the facts of this case. III. A. The court of appeals held that the earlier litigation in Telluray I precluded Lazy Dog's challenge to Telluray's proposed use of its easement across Lazy Dog's property because the use would take place within the previously determined dimensions of the easement. See Lazy Dog Ranch, 948 P.2d at 76. The court of appeals found that the doctrine of collateral estoppel barred Lazy Dog's claims. We disagree. 11711181 Collateral estoppel, or issue preclusion,bars subsequent litigation of an issue if: (1)the issue is identical to an issue actually determined in the prior proceeding; (2)the party against whom estoppel is asserted was a party or is in privity with a party to the prior proceeding; (3) there is a final judgment on the merits in the prior proceeding; and (4) the party against whom estoppel is asserted has had a full opportunity to litigate the issue in the prior proceeding. See O'Neill v. Simpson, 958 P.2d 1121, 1123 n. 5 (Colo.1998). Moreover, if the issue was determined in the prior proceeding but the judgment was not dependent upon that determination, collateral estoppel does not bar litigation of the issue in a subsequent action. See Maryland Cas. Co. v. Messina, 874 P.2d 1058, 1062 (Colo.1994); Restatement(Second) of Judgments § 27 cmt. h(1982). f 191120] The only element of collateral estoppel at issue here is whether the issues presented in the current action are identical to issues actually and necessarily adjudicated *1239 in Telluray I. To review, the trial court in Telluray I determined that the deed in question reserved to Telluray a non-exclusive, sixty-foot wide right of way for access and utilities upon the Sigafus Cutoff across Lazy Dog's property. The Telluray/trial court also determined that this right of way was based upon express grant, rather than upon historic use. IFN81 .-. FN8. Telluray contends that the trial court in Telluray I determined that the extent of Telluray's easement rights could not be limited to historic use. In fact, the trial court found that the existence of the easement was based upon express grant rather than upon prescription. The trial court made no findings as to the © 2006 Thomson/West.No Claim to Orig. U.S. Govt. Works. 965 P.2d 1229 Page 11 965 P.2d 1229,98 CJ C.A.R.4761 (Cite as: 965 P.2d 1229) precise extent of Telluray's use rights, and certainly did not address the propriety of the specific use at issue in the present litigation. In the present case, Lazy Dog does not challenge the existence or the width of the right of way, nor does it claim that the right of way is not for the general purpose of access. Rather, Lazy Dog claims that Telluray's proposed use of the right of way (bulldozing a thirty-foot wide roadway, with altered grades, within the right of way) is not permitted. That is to say, Lazy Dog maintains that there are various methods by which Telluray could make use of a sixty-foot wide right of way for access, some of which are permitted and some of which are not. For example, Lazy Dog concedes that the historic use of the easement, a twelve-foot wide jeep trail combined with occasional cattle drives over the entire sixty-foot width of the easement, [FN9]is permitted. FN9. Our description of the "historic use" of the right of way is consistent with that alleged by Lazy Dog. Because the trial court in this case granted summary judgment, it made no factual findings as to the historic use of the easement. Our reference to Lazy Dog's allegations is for illustrative purposes only, and should not be taken as an attempt to influence the findings that will eventually be made by the trial court pursuant to this opinion. In finding that collateral estoppel was applicable to Lazy Dog's present claims, the court of appeals treated the issue of the dimensions(or the existence)of the easement as identical to the issue of the easement's proper use. See Lazy Dog Ranch, 948 P.2d at 76. However, in theory and in practice, these concepts are distinct. We will briefly mention a few of the many cases that recognize this distinction. In Aladdin Petroleum Corp. v. Gold Crown Properties, 221 Kan. 579, 561 P.2d 818 (1977), the Supreme Court of Kansas examined an easement the specific width, length and location of which had been established. The court determined that, because the width of the easement had been expressly established, a determination of the reasonableness of the width was unnecessary. However, the court distinguished this issue from the question of .^ whether the proposed use by the servient landowner(parking on the right of way)was permitted: Once the trial court determined and granted easements of definite width, length and location, any additional determination of reasonableness of width was inconsistent with the nature of the easement determined. The determination of a definite easement controls. There still remains, however, the question of whether carports for parking are a reasonable use by a servient estate under the facts of this case. Id. 561 P.2d at 823. The court went on to hold that the servient owner's proposed use constituted unreasonable interference with the rights of the easement holder. See id. at 823-24. In Davis v. Bruk, 411 A.2d 660(Me.1980), the Supreme Judicial Court of Maine encountered a claim by owners of the dominant estate of the right to pave the easement. Although all the parties conceded the existence and location of the right of way, the court recognized the separate issue of whether paving constituted a proper use. The court upheld the trial court's denial of permission to pave the right of way: Even though the paving of the right of way may presumably suit the convenience of the owners of the dominant estate and provide some economic benefit, nevertheless, such material change in the surface of the right of way may give rise to an added burden on the servient estate, such as subjecting it to rapid transit of motor vehicles near the [servient owner's] home and posing safety problems to the occupants *1240 thereof which a country way may not generate. Id. at 666. Similarly, the Supreme Court of Virginia has treated the propriety of paving an easement as distinct from the question of the existence and dimensions of a "private roadway." See Haves v. Aoula Marina, Inc., 243 Va. 255,414 S.E.2d 820, 823(1992). The Supreme Court of Idaho dealt with a contention that a deed which created "a right of way for ingress and egress" of a specific width did not include the right to build a road upon the right of way. Kolouch, 813 P.2d at 880. Rather than consider the propriety of this particular use as subsumed within the issues of the easement's boundaries or general purpose for access, the court treated the question of proper use as a separate inquiry. The court upheld the trial court's conclusion that construction of a road was both reasonable and consistent with the parties' intent, noting that issues of reasonableness and intent are questions of fact for the trial court. See id. r. In addition to those discussed above, we find numerous cases from other jurisdictions which recognize the © 2006 Thomson/West.No Claim to Orig.U.S. Govt. Works. 965 P.2d 1229 Page 12 965 P.2d 1229,98 CJ C.A.R.4761 (Cite as: 965 P.2d 1229) distinctions among the existence, dimensions and proper use of an easement. See, e.g., Perry v. Snow, 165 Mass. 23, 42 N.E. 117, 118 (1895); Lorene v. Swiderski, 109 N.J. Eq. 147, 156 A. 465, 465 (N.J.Ch.1931); Kennedy v. Bond, 80 N.M. 734,460 P.2d 809, 812 (1969); Wykoff 646 P.2d at 759 Bard Ranch Co. v. Weber, 557 P.2d 722 727 (Wvo.1976). Furthermore, the line of Colorado cases, including the court of appeals' decision in Telluray I, that address the question of whether a servient owner may cross a right of way with gates or other obstructions underscores the unique question of proper use. See, e.g., Fortner v. Eldorado Springs Resort Co., 76 Colo. 106, 118, 230 P. 386 391 (1924); Schold, 944 P.2d at 685' Telluray I, 923 P.2d at 316. In these cases,the boundaries of the right of way were not in dispute; rather, the controversy involved the permitted use(within those boundaries) of the right of way by the dominant and servient owners.LFN101 FN10. Notably, the courts in these cases did not find that the owner of the dominant estate had the right to unfettered use within the boundaries of the easement. Rather,the courts held that the easement owner had the right to be free from unreasonable interference with the use of the easement. Finally, we note that our decision in Bijou Irrigation District rested in part upon the conceptual distinction between the existence (or dimensions) of an easement and the permitted use thereof. See 804 P.2d at 183-84. In that case, the right of the irrigation district to maintain the reservoir over the property of the landowners was not in question. Rather, the case concerned the right of the irrigation district, as easement owner, to enjoin the landowners'use of the reservoir within the boundaries of the easement. Our analysis was premised on the notion that the existence and dimensions of the easement were not dispositive of the question of permitted use. See id. Turning once again to the present case, it is clear that the litigation in Telluray I resolved only the easement's existence, width and purpose for access and utilities. The precise extent of the parties' rights to use the easement was not actually litigated or determined in Telluray L Nor was the propriety of Telluray's present proposal an issue in the prior proceeding.Accordingly, Lazy Dog's present claims are not barred by collateral estoppel. B. The trial court below entered summary judgment in favor of Telluray because it found that no genuine issues of material fact existed. See C.R.C.P. 56(c)(summary judgment appropriate where"there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law"). This holding was premised on the belief that the historic use of the easement, as well as the reasonableness and necessity of Telluray's proposed use, were irrelevant to the question at hand. The trial court found these considerations irrelevant because it determined that the language of the deed(and the holding of Telluray I) expressly conferred upon Telluray the right to implement its plans. *1241 12111221 The deed upon which the holding in Telluray/was based contains the following language reserving the easement to Pleasant Valley(Telluray's predecessor in title): Reserving unto Grantor, its successors and assigns, a non-exclusive right of way, access and utility easement sixty (60)feet in width upon ... existing roadways passing through the property above described.... It was established in Telluray / that the Sigafus Cutoff qualifies as an "existing roadway" upon Lazy Dog's property. We conclude that the above language, considered alone, does not answer the question of whether Telluray's proposed use of the right of way should be permitted. The language establishes only the width, approximate location and general purpose of the right of way. It does not address the propriety of any particular use (within the specified width) of the easement by either party.See discussion supra Part III.A.The grant is silent as to whether the right of way should be maintained in its historic condition or, if not, which improvements were intended by the parties to the deed. As explained in Part II of this opinion, the question of whether Telluray's proposed use is permitted should be informed by a number of factors. First and foremost, the intention of the parties to the deed should be given effect. To this end, the language of the deed should be construed in light of all the circumstances. See discussion supra Part II.A. Second, if the reviewing court cannot determine the actual intentions of the parties with respect to © 2006 Thomson/West.No Claim to Orig.U.S. Govt. Works. 965 P.2d 1229 Page 13 965 P.2d 1229,98 CJ C.A.R.4761 (Cite as: 965 P.2d 1229) Telluray's proposed use, the Court should refer to the principles relating to reasonable use of the easement. See discussion supra Part II.B. To reiterate, although the owner of the servient estate may make all uses of the property consistent with the burden of the easement,the servient owner may not unreasonably interfere with the enjoyment of the easement by the easement holder. The easement holder may make any use or improvement of the easement reasonably necessary for enjoyment of the easement. IFNI 11 Absent clear authorization in the deed, however, the easement holder may not cause unreasonable damage to the servient estate or unreasonably interfere with its enjoyment. fFNl21 Furthermore, the easement holder may not use the easement to benefit property other than the dominant estate. FN11. The Restatement (Third) of Property observes that "the manner, frequency, and intensity of the beneficiary's use of the servient estate may change over time to take advantage of developments in technology and to accommodate normal development of the dominant estate." Restatement (Third) of Property§ 4.10. FN12. In granting summary judgment, the trial court relied heavily upon the court of appeals' decision in Pickens v. Kemper, 847 P.2d 648 (Colo.App.1993). In Pickens, the court stated that extrinsic evidence is never relevant to the interpretation of a deed unless the deed is first determined to be ambiguous. The court also appeared to hold that the owner of a servient estate may not obstruct or utilize any portion of a right of way under any circumstances. See id. at 650-51. In a subsequent case, a different division of the court of appeals termed the language of Pickens"unnecessarily broad," and presented a narrower reading of Pickens. Schold, 944 P.2d at 685. Thus, the breadth of the holding in Pickens is unclear. To the extent that Pickens is inconsistent with this opinion, it is hereby overruled. The determinations of intent and reasonableness, after consideration of all the relevant circumstances, are largely questions of fact. See, e.g., Schold, 944 P.2d at 684. Kolouch, 813 P.2d at 880 Hayes, 414 S.E.2d at 823 Restatement(Third) of Property § 4.10 cmt. d; 7 Thompson, Thompson on Real Property § 60.05(a). Lazy Dog has alleged, with some support in the record, that Telluray's proposed expansion of the road is (1)unreasonable, (2) contrary to the intentions of the parties to the deed, and (3) designed to benefit property other than the dominant estate. Because Lazy Dog presented genuine issues as to these material facts, summary judgment in this case was improper. Lazy Dog's complaint is sufficient to require an evidentiary hearing and specific findings of fact. IV. We hold that Lazy Dog is not barred by collateral estoppel from challenging a particular use of an easement simply because the use takes place within the dimensions of the easement established by prior litigation. In addition, we hold that genuine issues as to material facts exist concerning the permissibility *1242 of the challenged use in this case. Accordingly, we reverse the judgment of the court of appeals and remand with directions to return the case to the trial court for further proceedings consistent with this opinion. 965 P.2d 1229, 98 CJ C.A.R.4761 Briefs and Other Related Documents(Back to top) • 1998 WL 34193823 (Appellate Brief)Reply Brief(Apr.01, 1998)Original Image of this Document(PDF) • 1998 WL 34193822 (Appellate Brief)Answer Brief(Mar. 16, 1998)Original Image of this Document(PDF) • 1998 WL 34193821 (Appellate Brief) Opening Brief (Jan. 26, 1998)Original Image of this Document with Appendix(PDF) END OF DOCUMENT © 2006 Thomson/West.No Claim to Orig.U.S. Govt. Works. ROAD EXHIBIT a r;. x r _ x wry Before road bas 04e 6- (TimberRock photo and quote) . �, y / ski -11/-;;;- _ � � r ,-,-,,,--'4;4.-:'r StWyt bW 4_ •tom.. " V - :. .4,6..1,..".1 yyyyyy � ,W • C �• yl( i. Y { g 'Y' ' {� q . `4JR " I After road base applied 6-06 (TimberRock photo and quote) 1-7 -_ .w4 � y'-,-,441;Y .� 4d Aw µ* •' ,, ", It, y �:'":11t1::''''::,`,4. { d� �„ X d r :.",:-,-.14, �„y� '-,« a -, Sp y df' asp£ rFv+y }}�� f GL rye §Y �` st r are a � 4i • 4 5 a. k�& ? 'i'V ,a- W G r P13 f ��F 11 /10/2004 • The road after 5 months of heavy traffic. .144 i .,tom _. h Wit. ti 7 The road before"improvements" _. ela-O - P' �eFu. *.A , A 4".v _ 1.- ;'+ .r $A • � FiF* VI " ' f ' �� "" , f�x . el 44:- *I': �a T�7---4p ,„�ry �1y,�Y 'k. 4 15r- �. r� nsr4 ID } r''"1:1":44.,3 r k , ,, „}F nr ?�. --[Sn k ,4 l+ 'a e'F 5 +', t". ` A`4+1 R++ ''rr f ` 0.-41, 4 c # db vyy }n`D„.4 fi3 ?., u ^i -;%-=' c . e n 5v yc . ,t1 } ✓}w t'&k .w ,q e Q k a 4.rs i F' 'y 1 Y 4 .� "- ;(341e c •4 ,s ''',74 ' °.rF X,`,' 'a: z a 4 y `, ' oM. !a3 � '[ `{ ;� smg{,� e ,"PSI'y' y F-44.1):‘ -)c + ._'�;rf .}":R�6 :.:fG ,r?'.3 ...3 - .;SX.mi;P:ra:ni. rzS9 `A� •+ The road 5 months after"improvements". • • Ar • M t 1 $ 1 ' ' ' lit . lr IR r� _• My:. tjy y. p 0th' � kip 4.... .._ 05/11 /2005 4 I �hx 05/07/2005 IIIIIIMIS 4S �r "ii, ,,, j • ,," m = k tl f « • a.,--D. IM. le .__ . ._ View from inside of car of a truck turnin_ onto road. r • ' .. t - , g'r d'r - Yi. fA V .ells alla 'IL 1. w, ` i5§� ^fit 5l'",:;,;:.,,, t�X;C �# ' . h '¢ tar i � ,�-� '�>i a, � f� ..a ,k tit�`la: sr. '�`rz'ar -- '?e; %.r,+.4,'4^r„ 4'Yw '3 - 4„` se3'-- '' ° w 3 > w ... if *' Yv ro ,A4 �-+2:S:;. �'@,)'&f V9r5.r4n, �. r. r -,.: - '' View of another truck turning onto road. i I 4 r b.> M'. R 4i } •`w "bkw�"^'wtlYcoa a£t�. �, n +s.7 -Fp ''" ru � S+ e 4.HY ,4^ r'�•5'�N�'"'gl�'�k 'a;:a �Y �'; t� 1 � Y / pt 4 o- 4 .: _._ ✓ �xs$'"" n w.�ois,� n)ax - may. TT as . '' -8,1-1:4 3 'IL' a a IAAp5� 09/ 13/2005 Pickup hidden by weeds. F FOR RENT 'Till.r4 vv�„('r x1!{ p ,�y '�iT i + tt "'zc,«r '* q ST�IINAy ,� , �i q 5p 4 21,14iN till',,, h `t '?� �'` ' .qa "- 'e� ur ii'"W{ c / wf ate ~ ,,,...,#,,r Mf°yY �ii`b ,� i ��' q-k r .,•-..•-•.•r-.:-i •....' -. fi..... Mme. 1�SNYIYn 11 / 14/2005 CULVERT AREA >% 'vj y y'#yy ."-- .. k ate: .. • x e₹ Wt:,-. X �. 9'3"fir xc .. y << Y`fig., "3' �'"+' t K>Ks� 7�,p, ' v c ° rY�` •-�� Standing water by"improved road" __ F ? t1x ` a X"/ ry x ' 4,k '?'�. A ZB'; ux . .�` 4. .. ...,. '. ',M1 _ s ; '" z. � �� a AS+ - Mud hole in"improved road". LfrZ.. :* czr t '' ti. #3,. ' - • �' '� Y.. y 4 4 4y r . IR illin .nilli � 1111N ,� � , JYYt � '%�x• '4•••••- ..w Y A :. 1Y 1 YMV 4� 'r .t. b! r •fte i \,,,., ,74 QS 3 4- b. ' ° Y . �'+ X3/2005 Y 5 i Q * iilliPlillir. ' . , w r N{yl,w_. ... -�. • "may it iI i iY. - • x Y aSd�fr s S w r am$"r 0;i4:41 ;.} s 4 fii:4 .r:k' Ti ,w..v. _2 . X View of road after rain storm. en 0 ' ow so lill so.% air- ., R'Oil ' ;w. . kacit b pryL! ly 4 P G .y �6₹ r (4f {a `. dr .ayi f _ Standing water and mudhole by"improved road". 7'; s..av�+,,ay�. fir qa v eFy, �,r � r r 3 'fir' 3t �``' �` * �4+7 Y k ym. .- n 1' t is }Yd 4J 1• �w dos-, 5 � c•x us '�. i�♦ t b TRAFFIC Vehicle Count — Vehicles Out Vehicles In(vehicles (Vehicles from Total Date Time to TimberRock) TimberRock) Vehicles May 15, 2004 10:00 to 11:00 14 (13) 6 (6) 20(19) — 1:00 to 2:00 10 (9) 8 (8) 18 (17) May 16, 2004 11:45 to1:30 22 (19) 18 (18) 40 (37) May 17, 2004 11:00 to 12:00 6(5) 5 (4) 11 (9) — May 18, 2004 12:30 to 1:30 3(3) 6 (5) 9(8) May 19, 2004 2:00 to 3:00 7(7) 2 (2) 9(9) May 20, 2004 2:30 to 3:30 5 (4) 3(3) 8 (7) — May 21, 2004 2:50 to 3:50 8 (6) 5 (5) 13 (11) May 22, 2004 10:15 to 11:15 15 (13) 10(9) 25 (22) May 23, 2004 12:00 to 1:00 7(7) 7 (6) 14(13) _ May 24, 2004 no count May 25, 2004 no count May 26, 2004 12:30 to 1:30 6 (4) 6(4) 12 (8) May 27, 2004 1:45 to 2:45 7 (6) 6 (5) 13 (11) May 28, 2004 11:50 to 12:50 3(3) 4 (4) 7 (7) May 29, 2004 9:29 to 10:20 8(8) 9(8) 17 (16) May 30, 2004 11:55 to 12:55 5(3) 4(4) 9(7) May 31, 2004 2:55 to 3:55 3 (3) 7(6) 10 (9) June 1, 2004 12:45 to 1:45 7 (6) 5 (4) 12 (10) June 2, 2004 11:15 to 12:15 5 (5) 6 (4) 11 (9) June 3, 2004 1:10 to 2:10 7 (5) 7 (6) 14(11) June 4, 2004 12:00 to 1:00 2 (2) 7 (6) 9(8) June 5, 2004 2:25 to 3:25 16(13) 15 (15) 31 (28) — June 6, 2004 1:25 to 2:25 7 (6) 8(7) 15(13) June 7, 2004 1:30 to 2:30 4(2) 5 (5) 9 (7) June 8, 2004 10:05 to 11:05 3(3) 3 (3) 6 (6) — June 9, 2004 1:00 to 2:00 2 (1) 4(4) 6 (5) June 10, 2004 11:25 to 12:25 8(7) 4(4) 12 (11) June 11, 2004 1:45 to 2:45 9 (8) 7(5) 16(13) June 12, 2004 2:10 to 3:10 8 (7) 8(8) 16 (15) June 13, 2004 10:20 to 11:20 1 (1) 2 (2) 3 (3) 395 _ Totals 29.5 hours 208(179) 187 (170) (349) Of these totals 111 were dumptrucks and 20 were semis. it n. ditet �y,y it it ;P ,� ;N c . 'l .. x •' .. I ) s ' H# • 'P S < it. • r;4.t• ,fir y`Fr : if R•. p q: • „S it ▪ _ ,' p9A. C9 q f a"o i toi. 4 : cy, ..,cwt .r S r S N "#` • .• a. r g . -4'• •• .. •',:-E;;.2.?;,;), `' zy rs, ` iY ; a. — -- Multiple vehicles on road. • " h : • • j f,.. t � ff 0.1� 6:15 AM • - / rt .- . y� 4 ° 1 "�Y lir ;}r.' L.:,-,,,,,,. ��ey, t, •"%.' ems. y �. „ . :sr, - E fvy „,p, a p i.9 it-gig` � :u Truck waiting before 8:00 AM. _ f s ".` ^,-r' { 7 —' 1:4'f'',::,1.,. S�na fr'� '�R8 i egg c yti • S r t`+ P i,F-s y �{ y 'tuKN � � x wr.j ».N'8ra -4,'+`8'SKt t '. }4,:, :rtP7" SrtW t. Y"U.d, .zz *s, fy ir. vY ^br 4' ._t! t „Ai 44 7:20 PM, September 15 t � r +fir Nt ' 34 4,44 - • — t $ f.y9 h '1721.;.;xr`„ `vF rat f t..t .' . .7 fi Sd 41.'s ... Truck retumin at 7:30 PM. X '`,b A C y trf if 9 d xr d C$,a 4fti i3�C fW.. 04!07/2005 r,.•roa �k' K� ,� �'. Pt f S \ g i v �4� r _ ms •r " � r wr;/us.; �' N j K C �y�y r ri wT ; r- . xi 05/05/2005 A �.JOKOI�� „ $ •V Oe ` C1 fi � �w s. 05/05/2005 DUST I I y w ' ilt :n a . .. -- 7 / 1 ni2nn4 X41 v} r • si t� it ui ra /a:. • L. y 7 T `.....4.74„: am' l .r AY' .; • w £ t - T .� , _ 1 , ; '! a iii 5 :?.)04,44514-A2 $' rF V v.. :s cy am.: f ' --0• e • • • - al i"9•73/4",,,,•>" ,-. w hj xu A'=yyL 5 , � ra r ry x ! ��nnt ill. �p . _ r� S i -mom `� ��' .; sr�d pa- ,rhi ,+;'^r 'f, '�m x !� : t x'::i , i Sc a # - M - G 7�"'h. S i'x`4 s ., ILL(' 6. ^"''+y�ny` t- N x.4,t /�'Z.+,' q vy 'i*w Cr 4-. • - i ..a, ;q. $24.4„;-,..../"-, r.'$. S" r a n.' 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J T • • OP err letin, ti • ,aw t J a P pm!ppm NEW MIL My , . s 40 (Lt . L)v �lcl,l -Le Lit- 1h-C7-b flu.. J'ALLct,.. ... 2 r a Y _1 I R ) - arnitrk Ase , IliPt..._ . il I� arm age; Ys .-_ -"o-" " W V+�i WNW IllirrlilliTt Sin .0, .441$11. 44t0r Im.1 r, �.t. , 4 .. .� ��0'X ', 4 i �a� 5 �� C."41 ��1i, .3: J3f I), • jr . 14a1 .gip ? :1 4. i vL 1 ' 4 •JjlII , 4.1-4.- ' I- w 1 4 F � I y 416 r* / I } l t ..iirjeil CL . .0,of 1 • ,1\� n w� . M� • `i� _‘...4'... 1 y � Hi-1 . 0k.- ,: ,. , , ,„ 11'1 oy) Cu. . — ') roe I GG e m . Weld County,Colorado, District Court P. O. Box 2038 Greeley, CO 80632-2038 (970) 351-7300 Plaintiffs: Garry and Kathleen Weinmeister, Harry D. Hartshorn, Charles and Tina Shinner, and Thomas W. Weiler v. Defendants: Jess R. Aragon and Cozy Cow COURT USE ONLY Dairy, LLC Warren W. Schaeffer, #28488 Case No: 05 CV 265 Houtchens, Houtchens & Greenfield, LLC 822 7th Street, Suite 270 Greeley, CO 80631 Division: 4 Telephone: (970) 353-9195 Fax: (970) 353-0151 PLAINTIFFS' SUPPLEMENTAL BRIEF RE: CO-TENANT LIABILITY COME NOW the Plaintiffs, Garry and Kathleen Weinmeister, Harry D. Hartshorn, Charles and -- Tina Shinner, and Thomas W. Weiler, by and through their attorneys of record, Houtchens, Houtchens &Greenfield, LLC, by Warren W.Schaeffer, and,pursuant to the Court's Directive, submit the following Brief with respect to the liability of co-tenants under Colorado's Premises Liability Statutes: I. Plaintiffs and Defendant Jess R. Aragon, doing business as Timber Rock Landscaping, are co-owners/co-tenants of the subject property. As co-tenants, all parties in this matter are "landowners". A landowner is defined by statute as "without limitation, an authorized agent or person in possession of real property and a person legally responsible for the condition of real property or for the activities conducted or circumstances existing on real property." C.R.S. 13- 21-115 (1). The amended statute preempts all common law created landowner duties. Vigil v. EXHIBIT 1 et , � ' � : i- u52P144S" Franklin, 103 P.3d 322 (Colo. 2004). Trespassers may recover against landowners for damages willfully or deliberately caused by the landowner. Licensees may recover against landowners for damages caused by the landowner's unreasonable failure to exercise reasonable care with respect to dangers created by the landowner of which the landowner actually knew; or the landowner's unreasonable care to warn of dangers not created by the landowner which would not ordinarily be present on the property of the type involved and of which the landowner actually knew. Invitees can recover for reasonable failure to exercise reasonable care to protect against dangers which were actually known or should have been known. C.R.S. 13-21-115 (3). Arguably, Plaintiffs could be held liable for acts by Defendant which, through negligence or overt act, would impose liability for injuries to trespassers, licensees, or invitees because landowner has been so broadly defined as "any person in possession" and that said possession need not necessarily be to the exclusion of all others. Pierson v. Black Canyon Aggregates, Inc., 48 P.3d 1215 (Colo. 2002). Nor could a landowner avoid liability in the instances such as slip- and-fall cases by relying on the acts of third parties to prevent against those dangers. Kidwell v. Kmart Corporation, 942 P.2d 1280 (Colo. App. 1996). Nor is the open and obvious danger defense currently available to landowners. Vigil v. Franklin, Supra. On the other hand, were Plaintiffs requested relief to be granted by the Court, the individual Plaintiffs as landowners owning an easement right could be protected from liability by the concurrent owners of easements crossing their property.DeBoer v. Ute Water Conservancy District, 17 P.3d 187 (Colo. App. 2000). II. In summary, the premises liability statute, C.R.S. 13-21-115, et.seq., and cases decided subsequent to its reenactment, do not protect co-tenants/landowners from liabilities to third persons for injuries caused on the jointly owned property. Accordingly, the testimony of Plaintiffs--in particular Plaintiff Shinner--with respect to liability appears to be well justified as a concern under the statute. Respectfully submitted this 29th day of December, 2005. HOUTCHENS, HOUTCHENS & GREENFIELD, LLC flaeffrr ile Warren W. Schaeffer, #28488 Attorney for Plaintiffs CERTIFICATE OF MAILING I do hereby certify that on the 29th day of December, 2005, a true and correct copy of the foregoing PLAINTIFFS' SUPPLEMENTAL BRIEF RE: CO-TENANT LIABILITY was electronically filed and served on the following individuals via Justicelink, and was placed in the U. S. Mail first class postage prepaid, properly addressed to: Richard F. Zier, Esq. 322 East Oak Street Fort Collins, CO 80524 Timothy L. Goddard, Esq. 125 S. Howes Street, Sixth Floor P. O. Box 2267 Fort Collins, CO 80522 D Si ed riginal On File In accordance with C.R.C.P. 121 1-26(9), a printed copy of this document with original signature(s) is maintained by Houtchens, Houtchens & Greenfield, LLC, and will be made available for inspection by other parties or the Court upon request. Hello