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Home My WebLink About951899.tiffTown of Mead P.O. Box 626 Mead, Colorado 80542 (303) 535-4477 CLERK THE May 23, 1995 Weld County Board of Commissioners 915 10 Street Greeley, CO 80632 RE: Sekich Equipment Company - Site Specific Development Plan and Special Use Permit - Beet Receiving Station, WCR 13 and 32. Dear Commissioners: I have been directed by the Board of Trustees of the Town of Mead to advise you of the following in regard to the above captioned matter. April 19, I wrote to Shani L. Eastin, Current Planner, that the proposal was compatible with the Town's Comprehensive Plan. May 14, I again wrote to Ms. Eastin regarding the proposal, attaching correspondence received by the Town indicating that ten property owners in the Grandview Estates Subdivision opposed the proposal. At the May 22, special meeting of the Board of Trustees, several property owners in Grandview Estates requested that you be notified of their opposition to the proposed beet receiving station. Please consider this letter as being that notification. If there are any questions, I may be contacted at 532-3248. Sincerel Ga Est Cir Rider City Manager Ex/61019-B ,tt) �! e &Deck(s), FL; EEL cblecc MINUTES TOWN OF MEAD - BOARD OF TRUSTEES SPECIAL MEETING JANUARY 23, 1995 - 7:00 P.M. 1) CALL TO ORDER & ROLL CALL Mayor Schumann called the meeting to order at the appointed time. The roll call was made with the following members present: Mayor: Mike Schumann Trustees: Staff: Lisa Brown Debbie Dennhardt Debbie Hegwood Randy Winsett Rick Samson, Town Attorney Kelly Smith, Town Clerk Gary West, Circuit Rider City Manager 2) OPENING CEREMONIES Opening ceremonies were observed. 3) ADDITIONS TO AGENDA Mayor Schumann explained that a petition has been circulated by citizens and that the petition would need to be forwarded to the town attomey for review. Mr. Schumann further reported that the attorney would address this at the February 13, 1995 meeting. 4) NEW BUSINESS a. Public Hearing - Margil Annexation No. One, Two and Three. Mayor Schumann closed the regular meeting and opened the public hearing at 7:05 p.m. Roll call was made with the following members present: Mayor Schumann; Trustee Brown; Trustee Dennhardt; Trustee Hegwood; Trustee Winsett. The roll call showed a quorum present. Mayor Schumann explained the public hearing process and reported that all publications and postings have been completed and all notices to adjacent property owners have been mailed. Mayor Schumann explained that the purpose of the hearing is to determine if the proposed annexation complies with Colorado Revised States 31-12-104 and 31-12-105. 351593 Page Two MINUTES - JANUARY 23, 1995 TOWN OF MEAD - SPECIAL MEETING Mr. West explained that the petition for annexation, Margil Annexation #1, #2 and #3 fully complies with Colorado State Statutes 31-12-104 and 31-12-105. Mr. West further explained that all applications, -maps, etc. have been completed and submitted. Roger Olson explained that this annexation lies within the Mead Comprehensive Plan. He further explained that the northern portion of the property is within the Johnstown school district and the southern portion is in the St. Vrain school district. Mr. Olson also explained that this area is adjacent to Highland Estates. Mr. Olson explained the section to the west is a corporate ownership, and the section to the north is a commercial PUD in the county. Mr. Olson explained the infrastructure in place one mile north of the property is a 20 inch high transmission water line. Through the middle of the property is a 24 inch high pressure transmission water line. He further explained that they are connected by an 8 inch distribution line. He also explained that an 8 inch line runs north and south and east and west through the middle of the property. Mr. Olson reported that there is a future water storage facility adjacent to the property on the north. Mr. Olson explained that the first phase would consist of 20 homes. Mr. Olson explained that the master plan is a guide and a devise for planned development, and allows each phase to tie onto the next phase. Mr. Olson explained that there would be an expandable homeowners association, with covenants controlled. Gary Olson addressed the concerns discussed at the January 4, 1995 Planning Commission meeting. This included issues dealing with water supply, groundwater contamination, surface water runoff, vehicle traffic pattern, paving of Road 38, Interchange I-25, benefit of annexation to Mead, industrial/commercial area, adequate street maintenance on existing streets, crowding of the school system, and assessment of providers of municipal services. Maureen Stuvel presented the Board with a petition that was circulated, requesting that future annexations require an election. Mayor Schumann reported that the petition would be turned over to the attorney for review, and that the ordinance is not in the proper format. Further consideration of this will take place at the February 13, 1995 meeting. Fran Chaplin asked if a conflict of interest existed with Trustee Dennhardt, because of family members who are in the construction business, and inquired about Trustee Dennhardt abstaining from voting. Mr. Samson reported that he would need to speak to Trustee Dennhardt in order to give a legal opinion. Page Three MINUTES - JANUARY 23, 1995 TOWN OF MEAD - SPECIAL MEETING (There was a substantial amount of public comment. Following is a summarization of the public comments. Tapes of the actual meeting are on file.) Public comments were made regarding reimbursement of the paving of Road 38, de -annexations, revenue concems, environmental assessments, impact on surrounding roads, maintenance of streets, drainage under Road 38, groundwater, and commitment of water by Little Thompson. Citizen comments were also made regarding opposing this annexation, concern with overcrowding the school system, adequate police and fire protection, and adequate water. Gary West reported that we have received letters from St. Vrain Valley School District, Weld County, Public Service, United Power, and a number of citizens. Rick Samson explained that there is a process for de -annexation, and that is if a municipality is not able to provide services that are contracted to provide, a piece of property that was annexed could be de -annexed. Gary Olson explained that Margil is a family trust which was developed in approximately 1992 - 1993. Paul Malek reported that the Planning Commission had a public hearing on January 4, 1995 and recommended to the Board of Trustees to deny this annexation. Mayor Schumann reported that if the town does not annex this property, it does lie within the Weld County Comprehensive Plan. Trustee Brown inquired about a firm commitment from Little Thompson for the water. Gary Olson explained that the letter is conditional upon the infrastructure. Gary West explained that the consideration of environmental impact is generally considered in the platting process. Rick Samson explained the initiative, referendum and recall process. He also explained that the petition submitted at this meeting is not a true constitutional initiative because it is not in the proper form. Mr. West explained that, as part of the annexation application, the applicant is required to fill out a D-4 form which is a financial impact assessment. He further explained that ft looks at the financial impacts to the community of the proposed annexation, itlooksat one time income and expenses, at annual expenses and incomes that are expected to be derived from the annexation. He also explained that it looks at the value of all property developed, the amount of property tax, sales and use tax, and various other forms of revenue the town may derive. The Board recessed at 9:20 p.m. Page Four MINUTES - JANUARY 23, 1995 TOWN OF MEAD - SPECIAL MEETING The Board reconvened at 9:30 p.m. Rick Samson reported that in regards to whether or not a conflict of interest existed for Debbie Dennhardt, he has spoken to Debbie and she has assured Mr. Samson that she, nor any member of her family have a financial interest in the property to be annexed, nor the Grand View Estates annexation. Mr. Samson reported that he does not feel there is a conflict of interest. Gary Olson explained that the commercial area would provide nearby source of employment, and this annexation would give the town the opportunity to control the growth with respect to the density. The general consensus of the Board was to deny the request for annexation. Mr. Gary Olson and Mr. Roger Olson withdrew their petition for annexation. b. Public Hearing - Grand View Estates Annexation, Third Filing No. One and Two. Mayor Schumann closed the regular meeting and opened the public hearing at 10:05 p.m. Roll call was made with the following members present: Mayor Schumann; Trustee Brown; Trustee Dennhardt; Trustee Hegwood; Trustee Winsett. The roll call showed a quorum present. Mayor Schumann explained the public hearing process and reported thatall publications and postings have been completed and all notices to adjacent property owners have been mailed. Mayor Schumann explained that the purpose of the hearing is to determine if the proposed annexation complies with Colorado Revised Statutes 31-12-104 and 31-12-105. Gary West explained that the petitions for annexation , Grand View Estates, Third Filing No. One and Two fully complies with Colorado State Statutes 31-12-104 and 31-12-105. Mr. West further explained that all applications, maps, etc. have been completed and submitted. Dwight Harding explained that their request of the town is to annex approximately 110 acres. He further explained that the third filing is located on the corner of Road 32 and Road 13, adjacent to filing no. one. Mr. Harding explained that originally this was designed to be a mixed use agriculture and residential area, but at this time the Sekich's do not feel comfortable with any residential development. He explained that he is asking the Board to approve an annexation for an agricultural use, with 25 acres used for a sugar beet storage area. Kent Wemmer, Western Sugar, explained that their company does extensive business in this area. He further explained that they need a receiving station, which would accommodate 130,000 ton of sugar beets. 951839 Page Five MINUTES - JANUARY 23, 1995 TOWN OF MEAD - SPECIAL MEETING Rick Samson verified that Mr. Harding is asking for a zoning for the beet dump and the balance of the property to be agricultural and suggested that, if the applicant wishes to amend, that it be amended to be reflected on the map that the beet dump show a commercial zoning classification for beet dump purposes and the balance of the property be agricultural. Jim Gustafson, attorney representing the Fiechtner family, inquired as to why they have to be annexed to the town when they are already zoned agriculture. He also inquired about drainage issues, access to the beet dump, concern with a ditch owned and operated by the family, traffic on Road 13, compliance with petition and publication process, sewage disposal, and Sekich's plan in the future with the area. Citizen comments were made regarding revenue and concern was shown regarding the need to annex this property with the classification already being agricultural. Public comment was made regarding moving the beet dump area further north. Fred Sekich indicated that he had no plans for a residential area. Jim Gustafson questioned the legal description in regards to the township and range. Fred Sekich explained that by annexing to the town, it saves him a lot of travel time in conducting business. Rick Samson indicated that he is unable to give the Board an answer to the legal description question and asked the Board to continue this and give him time to do the necessary research. Mayor Schumann closed the public hearing and reopened the regular meeting at 10:45 p.m. The general consensus of the Board was to deny the request for annexation. Fred Sekich withdrew his petition for annexation. 951899 ,2' ,5110‘,..(clor No base dr)giit Deah Dreher wrni r �_ ? �nil I \ r 24 HOUR TRAFFIC COUNT 4-25-1995 ADT=858 O- ADT=904 CbIoado D°eJrnr'"`4 1 WCR 32 SUBDIVISION HWY 66 G-( T'rar.;p4rcri-rc1.. ira-r4 t D4JAL Of /611-j Curs 7o Tr rifEjP) (it COLORADO 95 HOMESTEAD PATENT. masmaaatams— The gutted $fates of Amnicu, a. W 4. Wand lams rsa a WN mama BNzgTItot Nmalaad Castillula No...swrr —_ Itartall, Den bee bass &pa ned its the General Lend Oyler eta,. i APPLICATI0N._1+ a i--1 /aei.e 11MM Make a Cerlyleale "flee le/Wae Ollie iliailiaCane at _I here, • U weal that, palms le tie .4.t of C.gneeaapaeai ABA May. 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"Mad Um" "Mu Is aadF.P.!dsa4 p4 Ma D&LyW 9aagla MIS to wawa MPed, ittit rim'!" .40,0..4 s OW ywes4/l&. gh. lag% . tald.watya,ladas Y&nadrN a.aa-3 • /4 4 - wad es %Sgs.4 es Gaud suer. arthapaheallasd Oa& Hon API Veit "HP JET at a 24. d rn p 951899 E `UNITED STATES OF AMERICA, j.‘ T. eH; to Whoa this. Presents shall comes GSLSt3LfGs Homestead Certificate No....C.f' >. p�tr, APPLICATION L9p....: _ }Warta& There has been dowded in Mr Ge,mud hand bdlu, of to, Vatted Moto* a Certificate of the Register Of the Land Office at_. C.-'.':: :-._, (fe!e., r,./, whereby le apnea", that, pursuant to the .4at of Congress approved Moth A/ay, 186w. "TO SEtlu/iL BO. II Lbfh'./US to d{1Z'U4L S/afire OX TILE PUBLIC LUAt4IX,•" and the awls supple nente,t thereto, the &am or oaf leLfire' '.tin t,. has been establwhed and duly consulamated, in conformity to law, for Efts:,_ A 4 tr/Az f /,c{ J< ,oe .a'.4, (�n ,a41 Land, returned to the General Lunt o//ice by the ?tow$Row Ti, That there is, therefore, granted by the 'UNITED SPA'P L S unto the send 1.1.C1L6//r.(/ the tract 0/ lewd nho,a kser:bed. - To Have pn&to HoiQ/ the said tract of Land, with the appurtenances thereof, unto the nail {ld • . ,.. .. ryt.0 and toheirs and asaynd / lid/Jet I W any veeU4 and seamed water rights fornatant agricultural, ,nunufucturireg or other per po ,, and rights to 6ttoh.s 4.4 'reservoirs used in connection with such water rights, as may be r coe„icut and acknowledged by the Poi Patting. laws and decisions of Courts, and also mbieed to the right of the proprietor o/ o teen or lab to eadractIyeitsiob :remove his ore therefrom, should the same be found to penetrate or 'sootct ace pee iiees hgeby (tpntgd; ae provided by law kl tk3' ggtpgp ay whereat I, __tYGefr a. _c :.._._ NIS of toe Owlet Wet of AAA., Litters to to made µatswt, and the ,Sea! of the General Lund Office to be het enact off rat Ghven wrier „o, land. al the LRy ef-ltushin glop. the l:"%re 2, clay OS oh.. tc?,; v:(-c�Jr,. ,in the year of our Lord one :hooannd right hundred and .u2' r,nsfflu _ Rare of the lndgrondeum 4 the Waled ti ^ ,,._ Stater!- W o>:s Mila dred Bled /p .le,.T 5 GENd e (BMA L] rid; SoneiTirtetegj t-sr,nesiin ".j'F':� ."� 1.70171.41... 4 trt ud: _ %� IYIIl.1t.S1t_.. _. _._ Secretary. ,Eeoorder of the Oral Land Oyu 13X3, u./2 ab*(Px. :Se . 899 51 aea7KISD PAllairre-as..M+r.s. rte% ,r e. .. aeea.ir.r f'. THE UNITED STATES OF AMERICA, To all to Whom than laoosato .hall coma, C**STI ies Homestead Certificate No ril 2a �y�,�,,�� APPLICATION g71 ' t'g c There has been deposited in the General Land Office of tnc United States a Certificate of the Register the Land�� (L e ie—r r, r/. whereby �+ of Office at_� �•,c os •c it appears that, pursuant to the Acs of Congress approved 80th May, 1862, "TO "SECURE HOMECTE4DS TO 4911.11L SETTLERS / OX THE PUBLIC DOMAIN;" and the ads supplemental thereto, the claim of_-. - - .... ... ta4ii Y_L(.Ll a c./ -. _.. has been established and duly consummated, in conformity to law, for the_— _ _--- -....... -- .. r4ff /f, • Sne/f C-ea1-.oa.•/rvy di; 0/.7t. fir< - lwlZ { .c4 .It n -u. /1/ed."- IA, di K7l Xn .,<,.../r.. c %7/,n fee fee t,._ 1rr...l, Reef 1«, a. FtY4J- -f:ieu4- �J according to the Official Plat of the Survey of the said Land, returned to the General Land Office by the Surveyor General: �sw flow To, That thee is, therefore, granted by the ITN- UNITED STATES unto the said � C.j ."-------- '------------"-- the tract of land above described: To Have and to Hold the said tract of land, with the appurtenances thereof, unto the said i1 -- __ .------------------ and to---/s.eiv---.. ...-isles and assigns forever; aralsjed I s -fir ! to any vested and accrued waterrights for mining, agricultural,manes/alluring or other Purina's, and rtghts to ditches and reservoirs used in connection with such water rights, as may be recognized and acknowledged by the local customs, laws and decisions of (burls, and also subject to the right of the proprietor of a vein or lode to extract and remove his ore therefrom, should the same !n found to penetrate or intersect the premises hereby granted, as provided by law. �� Ma TwtlmWhiner, -..__r.[slcr...l.4_c='cr..- ?Mat d ilt Olttd mantra have cawed these letters to be made patent, and the Seal of the General Land Office to be hereunto affixed. 951899 RULES AND REGULATIONS OF THE HIGHLAND DITCH COMPANY ARTICLE I INTRODUCTION 1.1 AUTHORITY These rules and regulations are adopted by the Board of Trustees ("Trustees") of the Highland Ditch Company ("Company"). These rules and regulations applied only to the Highland Ditch Company and do not include the laterals which receive Highland Ditch water. It is the responsibility of the Company's employees to deliver water to the main headgates of laterals. Each lateral is responsible for rules and regulations regarding delivery of water beyond the main headgate. 1.2 CONFLICT Any Conflict between these rules and regulations and the Articles of Incorporation or the By -Laws of the Company shall be resolved in favor of the Articles of Incorporation or the By -Laws. ARTICLF II WATER RIGHTS AND ASSETS OF THE COMPANY X 2.1 The Company owns direct flow water rights as follows: (1) a November 30, 1871 priority for 205.46 cubic feet per second (cfs); (2) a June 1, 1878 priority for 23,57 cfs; and (3) a September 20, 1902 priority for 95 cfs. The amount of water that the ditch is entitled to is measured in cfs, or how many cubic feet of water will pass a given spot in one second. The number of cfs when doubled, converts to acre feet (a.f.) or the amount of water needed to cover one acre of ground one foot deep with water. The number of acre feet divided by 20 equals the number of inches. 2.2 The Company owns Highland Reservoir #1, Highland Reservoir #2, Highland Reservoir #3, Foothills Reservoir, McIntosh Reservoir, 49% of Beaver Park Reservoir and associated ditches, canals and other improvements. The use of the water in the reservoirs (not including surface rights) and ditch belongs exclusively to the shareholders. 951899 5.7 Water shall only be delivered to lands owned or leased by shareholders. No delivery of water down the Highland Ditch shall be made to non -shareholders absent the agreement of the Company. ARTICLE VI DELIVERY SEASON 6.1 Water shall not be delivered to shareholders before May 1st of any year. The first delivery date may be after May 1st and shall be determined by the Superintendent after due consideration is given to weather conditions and maintenance requirements for the Highland Ditch in any year. 6.2 Water shall not be delivered after September 30th or such time prior to September 30th as the Trustees determine that weather conditions, maintenance requirements and/or other factors require that deliveries cease earlier than September 30th. ARTICLE VU ASSESSMENTS 7.1 The annual assessment per share shall be determined by the Board of Trustees attheirfirst regularly scheduled meeting after the annual meeting, subject to an additional assessment by the Board of Trustees on an as needed basis. The assessment is calculated on the total stock owned by each stockholder using the following rates: .25 share = $107.50 .50 share = 115.00 .75 share = 122.50 1.00 share = 150.00 per share 7.2 The due date for assessments shall be April 15th, except if specifically modified by the Board of Trustees at their monthly meeting. 7.3 No water shall be delivered to a shareholder who has not paid his assessment, running and excess charges in full. 7.4 Assessments not paid when due shall be assessed an interest of $20 per year per a motion passed at a Board meeting on September 19, 1994. 4 951899 June 12, 1995 Dale K. Hall, Commissioner PO Box 758 Greeley, Colorado 80632 Re: Case Number USR-1082 Mr. Hall; We are owners of Lot #15 in Grand View Estates. When we were negotiating the purchase of this lot in November of 1994, we inquired about the status of the sugar beet storage and hauling on the property adjacent to this sub -division, through the listing real estate agent Joe Current of Remax of Longmont. Mr. Current at that time contacted Mr. Sekich to find out if this was a permanent facility. The answer given to us was that it was only temporary and it was to be shut down after that season, not to return next year. Because of this answer we chose to purchase this property so we could build our home in this quiet neighbor. If the proposed facility is of the same type, we are strongly opposed to it. Our objections are: 1. The constant heavy truck traffic on the nearby roads is a safety hazard to both children and pets. The noise of these trucks passing the area would negatively affect the value, the peace and quiet, the overall livability of the home we are planning to build for our family. 2. Grand View Estates has many restrictive covenants which protect both the value and peace and quiet of country living. These were our main reasons for purchasing this property for our future home. The noise of conveyors and diesel trucks arriving and leaving throughout the day and into the night does not blend well with this environment. If further input from us is desired, please contact Lee Storlie at 428-0207(days), or 252-0830(evenings). Leighton & Diane Storlie 3256 E 115th Dr Thornton CO 80233-2423 Sincerely, ton Storlie Diane Storlie 951899 /(7/ 1/41,,N urn 1.)(s- IL) a",-. c3 fJ 4-a'r 4, ''C' cv-x \-a-.�� -u- wa-U\ u. v. :t.-. • - rkh. tSZti-4 co .A -A ‘ThSlQ 1`�C.ILLN LM t` LA, •3 2 E # s o �,�,�, �a a ot ti; re , �► -1' pw,'n �yl 3 1V C9. �i �c Lfl l_.J e.a - 0-1 49.s C9- w. P. e' l . ..ti�ab) ( c d „ADO- to 5n Etc\ )\.31 ,,,-..; rl S .O..�l.iv. vr. a )-1 CQ 1.II.c, e,,c, 1. T t to -U) v. o c L:> o ...LC (Inc C.o-,ctc,,, YJ, y A) .,t a , i 4•a .a-, 4x l-s-CoCLA \012.12-.41 0-A cU,,.D o p P'/c` s 0-thk.. . k.. C_ika SQ-U a,._ O -a ca -450"\ 0-0 iRa �cSJ c.y� &.y.ti.o ,1 vz�l kk 13 -- �f I H. ►I`c'b' r' - 4,42/ c'A `Y w c 1.J),.:-, `1 SC . -- A p Z t c 4 Q S c..SL,, GYN. L<�n S1n< hCu.,ox y W & 9518 151c 03k \ 6-0 (Sly . (3,4 C-.._.C� 14 v (�) COO h U``r\\--Lc tXbLL�f �1� �'� i STha-1/41\-1•. W.C LA t,\&1c�' lS� e Lei� R LA2 _ilk,-�'��.. � S,21 Aka,: • June 16, 1995 ,•a r:'s • Weld County Board of Commissioners F. O. Box 758 Greeley, CO 80632 Attention: Re: Board Members TJSR-1082 (Sekich Equipment Company) Dear Weld County Board of Commissioners: This letter is to advise you of concerns the four Fiechtner families who live within 500 feet of the proposed beet dump have regarding relocation of the Sekich beet dump and combining of Buda beet dump by Western Sugar. The first issue of concern is with our rights to the Fiechtner Lateral. We are not trying to stop Sekichs from using their property but to protect our ditch and water rights. We lost one ditch right and learned the hard way and we will not stand by and have are ditch and water rights disturbed or the flow of water stopped and have crop damage. At the Weld County Planning Commission held Tuesday, May 16, 1995 the members made recommendations to the Board of Commissioners and we feel that numbers 3, 1, 5, and 7.a. are good recommendations. Two more questions need to he addressed they are as follows: 1. Will Sekich Equipment/Western Sugar be held -responsible for any accidents involving beet operations and the Fiechtner Lateral? 2. If approved and culverts being placed in the ditch while we are irrigating and the flow of water is stopped damages to our crops may occur. Who's responsible? Other concerns with the proposed beet dump site adjacent to WCR 13 and adjacent to the Fiechtner Farm are the following: 1. Facts that we received from Larry Haas, Department of Transportation, State of Colorado, state that there are an average of three accidents per year at the intersection of Highway 66 and Weld County Road 13. The traffic predictions for 1995 will be 6,000 vehicles per day and this does not reflect new housing developments or new businesses that will create traffic. We were told that this intersection is one of the most dangerous intersections in Weld County. Red flashing lights have been installed to alert motorists of this hazardous intersection. The proposed beet dump will increase the number of truck traffic at this already dangerous intersection. Trucks turning off of Highway 66 onto Weld County 13 will enter onto a road that has 12 foot lanes and 2 foot shoulders and vehicles stopped at that intersection have to back up so that trucks can turn onto fx/) i b f 1 et; ,4:3Gl G ) C_r9 ) (fie-) f°L. 951899 WCR 13. What kind of impact will the combining of Buda and Sekich beet dump traffic have on this already perilous intersection? 2. We received traffic studies from Drew Scheltdinga, Weld County Public Works, for Weld County Road 13 between Highway 60 and Highway 66. Weld County Road 13 is classified as an arterial road which means that it has the highest traffic volume on Weld County Roads. There is an average of four accidents a year on this stretch of road. Fifty-five percent of the vehicles traveling on this road are exceeding the speed limit. 3. With the added traffic by the proposed beet dump (truck traffic from September 10 -- January 15) and the completion of Grand View the traffic volume will increase drastically. The school children are picked up by school buses at the entrances of Grand View located on Weld County Road 13. We have enclosed a letter from the St. Drain Valley School District with regards to the safety of the children at Grand View and the potential for a serious truck/school bus accident. Again, the road has 12 foot lanes with 2 foot shoulders and the speed limit is 45 m.p.h. and increases at the crest of an incline to 55 m.p.h. just past Grand View. Please note that trucks will be running the first semester of school - five months is not seasonal. 4. Traffic coming north off of Highway 66 onto WCR 13 will encounter 16 access within the first half mile and by adding two accesses required for the proposed beet dump the total will rise to twenty within the mile between Highway 66 and WCR 32 most of these accesses do not have stop signs. We were almost involved in two accidents recently by vehicles pulling out of Grand View. Speed limit 45 m.p.h. - 55 m.p.h. The speed limit at the proposed beet dump is 55 m.p.h. Safety concern! 5. If you look at Sekich Equipment/Western Sugar application they state that there are 65 growers - each are allotted 3 trucks and times that number by the trips each grower makes to the beet dump a day and that number could be ten trips per grower more or less a day. Keep in mind that the applicants never mention anywhere in their application that they were closing Buda beet dump and combining it with the Sekich beet dump at the proposed site. Weld County figures trip rates as one coming and one going. The applicants state thatthere will be 300 trucks per day and at the Weld County Planning Hearing they raised that number to 400 - 500 trucks per day. If you calculate the figures above we're wondering if the applicant is still giving the correct figures for trips per day. Looks like the number of trucks -2- 951899 per day could be easily over 1000. The applicants state that this is merely a minor relocation and that when comparing the existing operation to this proposed operation they will remain the same and the use of WCR 13 will also remain the same. The applicants also state that the growers delivering to the proposed site are from the immediate vicinity. Sue, Agriculturalist, with Western Sugar, stated at the Weld County Planning Hearing the growers will be coming from as far as Niwot and Berthoud. This proposed site is strategically located? Merely a minor impacted? Looks more like a major impact! 6. Arvid talked to one of the biggest beet growers who will be using this proposed site and he said this beet site was ridiculous and they should have small dumps at more locations. He was concerned that with so many trucks coming to one location that there will be an accident. 7. Sekich Equipment/Western Sugar state that Mead had no objection to the proposed beet dump. Arvid and Barbara attended the Town of Mead - Special Meeting on January 23, 1995 regarding Sekichs annexation and proposed beet site and the general consensus of the Board was to deny the request for annexation. Mead didn't ask their residence from Grand View how they felt about the proposed beet site. We saw numerous letters from Grand View residents and a petition signed by them in opposition to the proposed beet dump. Remember when reading those letters that they have had first hand experience living by the Sekich beet dump. 8. Weld County Public Works did a 24 hour traffic count at Grand View on April 25, 1995 approximately 1000 vehicles traveled north on WCR 13 from Highway 66. That number will increase daily with all of the building in Grand View, Johnstown and Milliken area. We can't believe that Tate and Lyle out of London England owners of Western Sugar would even consider a beet dump location next to a housing development. Kent Wimmer, states that safety is very important. Also, they state they will provide adequate protection for health, safety and welfare of the neighborhood and county. How? Harvey Fiechtner has worked at both the Sekich beet dump and Buda beet dump. His daughter-in-law also was the scale person at the Buda beet dump. They know from experience what goes on at the beet dumps. We are opposed to the proposed beet dump at this location and feel that there has to be a safer and more convenient location for the beet growers. The mud on the road from the beet trucks last year was terrible. (more trucks, more mud) The road damage -3- 951.899 to WCR 13 caused by the heavy trucks will be costly to maintain. Who pays for damages to the road? Weld County Road 13 has no base under pavement other than original soil. Weld County had a strength test done on WCR 13 and Dean Dreher will send me the results in three weeks. If approval is granted please make it livable. Listed are problems that we see and feel must be addressed. 1. Liability on ditch in case of accident involving beet. operation? 2. Who pays damages if the flow of water is stopped? 3. Noise pollution from trucks and loader 24 hours a day. Need sound barrier placed around beet dump. 4. Dust pollution - truck traffic inside beet dump and dust on WCR 32. Concerns about dust pneumonia in our livestock. Applicants need to control the dust pollution. 5. Mud on WCR 13. 6. Deceleration and acceleration lanes on Highway 66 and WCR 13. We are asking that you comply with Zoning Ordinance 24.4.2.7 - That there is adequate provision for the protection of the health, safety and welfare of the inhabitants of the NEIGHBORHOOD and the COUNTY. Also. Zoning Ordinance 24.5.1.8 - The access shall be located and designed to be safe; ingress and egress shall not present a safety hazard to the traveling public or to the vehicle accessing the property. For USES generating high traffic volumes and large number of large, slow accelerating vehicles, acceleration and deceleration lanes may be required to mitigate a potential hazard. 7. Reduced speed zones. 8. Truck lights at night are a nuisance. 9. Weld County Road 13 has two foot shoulders and the Weld County Comprehensive Plan states that arterial roads are 12 foot lanes and 4 foot wide shoulders. Bean and corn harvest along with other farming activities are going on at the same time as beet harvest. This could make a hazardous situation for us to getour crops to market. Please take our concerns into consideration when making your decision on this Special Use Permit. Thank you. Yours truly, 2 Arvid Fiechtner Fiechtner Farms CC -4_ 951899 Staff Traffic & Safety Projects Branch Summary of Traffic Accident Experience 1/1/91 through 9/30/94 Larry Haas Highway 66 & Weld County Road 13 1991 3 accidents 1-14-91 8-27-91 12-26-91 1992 no accidents listed 1993 3 accidents 2-10-93 6-24-93 11-01-93 1994 3 accidents 5-26-94 6-11-94 injury (1) injury (2) injury (2) NOTE: 12-00-94 INJURY (1) THIS ACCIDENT HAPPENED AFTER REPORT DATE OF SEPT. 30. 1994 This accident involved a young girl who lives at Grandview Estates. There is a possibility that there were other accidents after 09/30/94 -which were not accessible to Larry Haas when he sent report to me. AVERAGE ACCIDENTS PER YEAR: 3 ACCIDENTS Traffic count 1992 Highway 66 - 4500 per day Predictions until end of 1995 - 6000 per day This traffic count does not reflect new housing developments. 951899 vu -I-45 CCulQn1 STAFF TRAFFIC & SAFETY PROJECTS BRANCH SUMMARY OF TRAFFIC ACCIDENT EXPERIENCE 1/ 1/91 through 12/31/93 r� le 4o.5t STATE HIGHWAY 66 B M.P. 44.50 TO 45.10 I. Fatal Accidents Injury Accidents Property Damage Only Total Accidents On Roadway Overturning Other Non -Collision Pedestrian Broadside Head -On Rear -End Sideswipe -Same Dir. Sideswipe -Opp. Dir. Approach Turn V. LIGHT CONDITIONS Daylight park Not Lighted Dark Lighted Total NUMBER OF ACCIDENTS REPORTED One -Car Accidents Two -Car Accidents Three Or More Cars Total 0 2 4 6 II. SEVERITY * * * * * III. LOCATION 2 Total 6 3 2 1 r- ly r9/ 8- 21-9/ / t •J6-9/ Nod) /95�- .�-/4.93 6- ay -93 II- 1-53 Persons Killed Persons Injured Off Roadway IV. TYPES OF ACCIDENTS 0 0 0 1 0 1 0 0 0 * * * * * * * Total 6 5 1 0 6 Overtaking Turn Parked Car Train Bicycle Motorized Bicycle Domestic Animal Wild Animal Fixed Object Other Object 0 3 4 VI. ADVERSE CONDITIONS Raining Snowing Road Wet Road Snowy Road Icy 0 0 0 0 0 0 0 4 0 0 0 0 1 0 951899 HIGHWAY - 66 /STATE K ILATVT I NOCYEY L J C CP HP 41 EN L U A IE IE A T E RTDC L D EIE Ll DONE N T SECTION DO VM VT IF EO EY R HV HP EV IE IE CE C C TH L1 L2 I E E 01 N - B DO VM L RC C IF EO I 00 0 R HV G AN N EV IE H DD T CE C T I 0 TH L2 T U I E I R 02 0 N N 15963 44.90 0 1 L CV CAR/VN E STRT 6768 44.92 0 0 R RE CAR/VN E STRT H & R E 57496 44.92 0 0 91567 44.92 0 0 R SI CAR/VN E STRT 82399 44.92 0 0 L 49168 44.92 0 2 BS PKP/UV N STRT CAR/VN W STOP DA SN STOP DU LTRN DA STOP DA STRT DA STRT DA D T A T H E E SL 2/10/93 11350 SL 1/14/91 1730 SL 8/27/91 1750 SL 12/26/91 1130 SL 11/ 1/93 12150 SL 6/24/93 1840 951899 ised December 23, 1992 CATION Ran off left side R - Ran off right side r - Ran off T intersection VEHICLE TYPE CAR - Passenger car CAR&TR - Car with trailer PICKUP - Pickup truck VAN&TR - Pickup/Van &trail. TRUCK - SelfContainedTruck TANKER - Tanker truck SEMI - Semi truck &trail. M HOME - Motorhome COMBO - Truck&trailers BUS - Non -school bus CAR/VN - Car/Passenger van M.C. C/V&TR - with trailer BICYCL PKP/UV - Pickup/Utility van M BICY p/V&TR - with trailer FARM E OTHER BIGTRK - Big truck H & R SMLTRK - Small truck SMLSCL - Small school bus SMLBUS - Small bus SCHOOL - School bus VEHICLE MOVEMENT STRT - Going straight WWAY - BACK - Backing REDT - LTRN - Turning left DBLT - RTRN - Turning right DBRT - ACCIDENT TYPE OV - Overturning accident ON - Other Non -Collision PD - Child to/from school PD - All other pedestrians BS - Broadside HO - Head -On RE - Rear -End SS - Sideswipe -same dir. SO - opposite dir. AT - Approach turn OT - Overtaking turn PC - Parked motor vehicle TN - Railway vehicle BK - Bicycle LIGHT DU - Dark, unlighted DA - Daylight TW - Twi-light(Dawn/dusk) DL - Dark, lighted Wrong way Turning on red light Double turn to left Double turn to right BK - Motorized bicycle AN - Domestic animal AN - Wild animal INVOLVING FIXED OBJECT LP - Light pole TS - Traffic signal SI - Sign BR - Bridge rail GR - Guard rail MB - Median barrier BA - Bridge abutment CP - Column or pier CV - Culvert or headwall EM - Embankment - Motorcycle - Bicycle Mot.bicycle - Farm equip. - Other - Hit&Run veh. TRACT - TruckTractor STOP - CHLN - AOBJ - PASN - ROAD CONDITION WT - Wet MU - Muddy SN - Snowy IC - Icy Stopped Change lanes Avoid object Passing another veh CU - Curb DP - Delineator post FE - Fence TR - Tree LB - Large boulder RO - Rocks in roadway BC - Barricade WA - Wall CC - Crash cushion OF - Other fixed object OO - Involves other object PB - Postal Box (Mail) ME - Maint.Equipment CONTOUR SL - Staight, on-level SG - Straight, on -grade CL - Curve, on -level CG - Curve, on -grade HL - Hillcrest 951899 Da4'S cf Act 1de4Es S,--26 •9./ STATE STAFF TRAFFIC & SAFETY PROJECTS BRANCH SUMMARY OF TRAFFIC ACCIDENT EXPERIENCE 10/ 1/92 through 9/30/94 (rvt:le Ash) HIGHWAY 66 B M.P. 44.50e TO' 45.10 I. Fatal Accidents Injury Accidents Property Damage Only Total Accidents On Roadway Overturning Other Non -Collision Pedestrian Broadside Head -On Rear -End Sideswipe -Same Dir. Sideswipe -Opp. Dir. Approach Turn V. LIGHT CONDITIONS Daylight Dark Not Lighted Dark Lighted Total NUMBER OF ACCIDENTS REPORTED One -Car Accidents Two -Car Accidents Three Or More Cars Total 0 3 2 5 3 II. SEVERITY * * * * III. LOCATION Total * 5 IV. TYPES OF ACCIDENTS 0 0 0 2 0 1 0 0 0 Total 5 0 0 5 5 1 3 1 5 6-ii-sy nla i Lts4ed -9y Persons Killed Persons Injured Off Roadway 0 5 2 Overtaking Turn 0 Parked Car 0 Train 0 Bicycle 0 Motorized Bicycle 0 Domestic Animal 0 Wild Animal 0 Fixed Object 2 Other Object 0 VI. ADVERSE CONDITIONS Raining Snowing Road Wet Road Snowy Road Icy Any intentional or inadvertent release of this data or any data derived from its use shall not constitute a waiver of privilege pursuant to 23 USC 409. 0 0 0 1 0 951899 Revised December 23, 1992 LOCATION L.- Ranoff left side R -.Ran. off right side T.._ Ran Off T intersection VEHICLE TYPE CAR - Passenger car CAR&TR - Car with trailer PICKUP -. Pickup truck VAN&TR. - Pickup/Van &trail. TRUCK . - SelfConta4.nedtrack TANNER - Tanker. truck SEMI - Seaii ..truck &trail. M HOME gotorhome . • COMBO — Thick&trailers BUS . .. Non -school. bus VEHICLE MOVE T ' STRT - Going straight WAY BACK - Backing REDTLTRH left . RTRN -.Turning right DBRT • CAR/VN - Car/Passenger ailer M.C.YCL c/v&TR - PKP/UV - Pickup/Utility van M BICY P/V&TR - with trailer FARM BIGTRK - Big truck • OTHER SMIR'RIc - Small: truck & R SMLSCL - Small school bus SALMIS - Small bus SCHOOL - School bus --Wrong way STOP Turning on red light CHLN --Double turn to left AOBJ turn to right PASN -Double ACCIDENT TYPE OV - Overturning accident INC - Motorized bicycle CU ON - Other Non -Collision AN - Domestic animal DP DP PD. aChad-to/a om cchool---ANA^-Wild-animal-- PD - All other pedestrians INVOLVING FIXED OBJECT TR BS - Broadside LP - Light pole LO HO - Head -On TS - Traffic signal BC RE - Rear -End . SI -'Sign .WA SS- - Sideswipe -same :din. -BR ..1Bridge rail SO - Opposite dir. GR - Guardrail CC OF AT - Approaih turn. MB - Median barrier OT - Overtaking turn BA - Bridge abutment 00 PC - Parked motor vehicle CP = Columnor pier TN .r. Railway. vehicle - CV.- Culvert or headwall ME BK - Bicycle. EH - Embanlatent LIGHT ROAD CONDITION DU - Dark,Daylight WT - Wet • DA - TW - Twi-linght(Dawn/dusk) SN - Snowy DL - Dark, lighted IC - Icy - Motorcycle - Bicycle - Mot.bicycle Farm equip. Other - Hit&Run vela. TRACT-.TruckTractor - Stopped - Change lanes- - Avoid object -.Passing another vela - Curb. - Delineator post - Tree, Large boulder --Rocks in roadway - Barricade • • - Crash cushion - .Other fixed.object - Involves other objec - .Postal Box (Mail) - Maint.Ecjuipment CONTOUR SL - Staight,•on-level, SG - Straight,. on -grade CL - Curve,'on-level CG - Curve, on -grade HL - Hillcrest 951899 (74425 of Acc'dents STATE STAFF TRAFFIC & SAFETY PROJECTS BRANCH SUMMARY OF TRAFFIC ACCIDENT EXPERIENCE 10/ 1/92 HIGHWAY 66 B M.P. I. Fatal Accidents Injury Accidents Property Damage Only Total Accidents On Roadway Overturning Other Non -Collision Pedestrian Broadside Head -On Rear -End Sideswipe -Same Dir. Sideswipe -Opp. Dir. Approach Turn V. LIGHT CONDITIONS Daylight Dark Not Lighted Dark Lighted Total through 9/30/94 (M;le 44.50*' TO`945.10 NUMBER OF ACCIDENTS REPORTED One -Car Accidents Two -Car Accidents Three Or More Cars Total 0 3 2 5 3 II. SEVERITY * * * * III. LOCATION Total * IV. TYPES OF 0 0 * 0 2 0 1 o 0 o Total 5 0 0 5 * * * * * 5 ACCIDENTS 5 1 3 1 5 5-2126 •q, 6 - "-S9/ L1SAPd a. -9' Persons Killed Persons Injured Off Roadway Overtaking Turn Parked Car Train Bicycle Motorized Bicycle Domestic Animal Wild Animal Fixed Object Other Object VI. ADVERSE CONDITIONS Raining Snowing Road Wet Road Snowy Road Icy Any intentional or inadvertent release of this data or any data derived from its use shall not constitute a waiver of privilege pursuant to 23 USC 409. 0 5 2 0 0 0 0 0 0 0 2 0 0 0 0 1 0 951899 WELD COUNTY ROAD 13 HIGHWAY 60 TO HIGHWAY 66 Drew 356-4000 Ext.3750 Classification - - - Arterial Road Road Functions: 1. Arterial - highest traffic 2. 'Collector 3. Local Arterial - longest distance across county runs north and south Johnstown to Tri-Area 1992 (old) Traffic counts - 789 If traffic counts done today 453 would be higher. Drew said that if Weld County would do traffic count between Grandview and Highway 66 traffic count will ZOOM. DAILY AVERAGE: 600 - 800 vehicles per day 365 days in year x 600 219,000 traffic for 1 year 219,000 x 6 years 1,314,000 traffic for 6 years Institute of Traffic Engineers Trip Generation Data Single detached house - Statistic show that per house there are 9.55 trips made on roads and highways daily. Which means average house has approximately 10 vehicles on roads and highways daily. Trip rate will include going as one (1) trip and coming back as one (1) trip. Vehicles could mean same vehicle several trips a day. Example: 50 houses take times 10 trips daily 50 x10 500 cars on roads and highways daily 951899 ACCIDENT REPORT WELD COUNTY ROAD 13 BETWEEN HWY. 60 & HWY. 66 1988 13 ACCIDENTS 1 - ALCOHOL 6 - RX MEDICATION 3 - ILLEGAL DRUGS 3 - NO IMPAIRMENT 1 vehicle accident 2 vehicle accidents 1 vehicle 1 vehicle 1 vehicle 1989 1 ACCIDENT 1 - RX MEDICATION 4 - 55 mph to 65 mph 6 - under 55 mph - 3 total accidents going going going 5 mph - other vehicle 65 mph 0 mph - other vehicle 55 mph 40 mph - other vehicle 50 mph 1 vehicle going 50 mph - other vehicle 74 mph 1990 2 ACCIDENTS 2 - NO IMPAIRMENTS 1 vehicle going 40 mph - other 1 vehicle 35 mph 1991 NO ACCIDENTS LISTED 1992 1 ACCIDENT 1 - NO IMPAIRMENT 1 vehicle 55 mph 1993 5 ACCIDENTS 5 - NO IMPAIRMENT 1 vehicle 1 vehicle 1 vehicle 1 vehicle 1 vehicle vehicle 10 mph 50 mph 50 mph - other vehicle 45 mph mph not listed 45 mph - other vehicle 55 mph 40 mph 951899 1994 NOT LISTED ON PRINT OUT I'm assuming the 6 accidents not listed on the Road 13 Accident Summary are for 1994. (I called Drew regarding 1994 and has not returned my call as of January 19, 1995. 1 - accident was on the hill by Harvey Fiechtner's house 1 - truck and farm tractor with baler - accident at WCR 13 and WCR 34 NOTE: There are also accidents that are not reported to authorities. example: son runs in ditch and dad pulls him out 951899 a a O r O r re RD 13 ACCIDENT SUMMARY a IX r r G Na y m Q K N N r 1 ,w v O m ffYt O r 0 r K m m m tr IR I RD 32 r r r m h m m a ar c J = 0 J jJ D 7 C C li Z n y Z Z Z Z 0 L Z SiO3 Z n Z 3 Q 951899 Town of Mead P.O. Box 626 Mead, Colorado ..805 T2C a And (303) 535-4477 wr-•Ami. ... PMA4Mme June 19, 1995 Weld County Board of Commissioners 915 10 Street Greeley, CO 80632 RE: Sekich Equipment Company - Site Specific Development Plan and Special Use Permit - Beet Receiving Station, WCR 13 and 32. Dear Commissioners: I have been directed by Board of Trustees of the Town of Mead to advise you of the following in regard to the above captioned matter. The Board of Trustees conducted a public hearing January 23, 1995 on an annexation proposal titled Grand View Estates III. The original master plan for the development provided for a large lot residential subdivision (234 + acres per lot) and the above referenced sugar beet receiving station. Opposition to the annexation was expressed by several area residents, some within the Town and some within the County. Favorable comments were received from representatives of the Western Sugar Beet Association. After closure of the public hearing, the board members present commented on the proposal. (At the risk of editorializing, a majority of the Board appeared to oppose the annexation as proposed for a variety of reasons.) However, no formal action was taken by the Board because the proponent withdrew his application before a motion was introduced to approve or deny the annexation. Please consider this letter at your hearing of June 21. If there are any questions, I may be contacted at 532-3248. Since G est C. ./ Rider City Manager cc: Mead Board of Trustees Lisa Brown, Mayor Pro-Tem Sekich Equipment Co. Western Sugar Beet Association JUN 19 '95 17:26 WLMCRP 970-532-3249 1:4-obiG cc 61. CH /lc� PL PAGE .002 951899 1,. e C / D e) GQ l -e— � L 6r��v 1u�xe4_ /2 /Yte-12e2 QJ-e_pG“-C2-m / J {12.k.}0-71 ja UIG / AvA-4 e_A-d hayvot A /2_e //4tne c a it -Li eau -t y /rsa - Atli. "Let r -)9(//vteA/ 4 40t162/2_ 951899 PETITION FOR RELOCATION TO ALL PERSONS CONCERNED: THIS IS A PETITION TO RELOCATE THE WESTERN SUGAR BEET RECEIVING STATION. TI CURRENT LOCATION REMAINS IN THE; THE GRAND VIEW RESIDENTIAL AREA LEGAL DESCRIPTION OF RELOCATION BEING; THE NORTHWEST QUARTER OF SECTION 19. TOWNSHIP THREE, NORTH RANGE SIXTY-SEVEN WEST OF THE SIXTH PRINCIPAL MERIDIAN COUNTY OF WELD STATE OF COLORADO. THIS LOCATION IS APPROXIMATELY; AT WELD COUNTY ROAD #13, AND WELD COUNTY ROAD #32. ANY PERSONS IN AGREEMENT WITH THIS RELOCATION PLEASE STATE YOUR NAME BELOW. 7. t 10. 11. 12. &;u3vcw'ezo /26- 13 53'3/ bur 32. 14. //rAV/A # /yo%/ Gc1c/1 S� 16. /(oGgW W -CI) C p/a ia04 17. /cicoo a i3 18. (StO tuck 3� 19.076 / wcR 31, 20. 21. 22. 951899. PETITION FOR RELOCATION TO ALL PERSONS CONCERNED: THIS IS A PETITION TO RELOCATE THE WESTERN SUGAR BEET RECEIVING STATION. THE CURRENT LOCATION REMAINS IN THE; THE GRAND VIEW RESIDENTIAL AREA LEGAL DESCRIPTION OF RELOCATION BEING; THE NORTHWEST QUARTER OF SECTION 19. TOWNSHIP THREE, NORTH RANGE SIXTY-SEVEN WEST OF THE SIXTH PRINCIPAL MERIDIAN COUNTY OF WELD STATE OF COLORADO. THIS LOCATION IS APPROXIMATELY; AT WELD COUNTY ROAD #13, AND WELD COUNTY ROAD #32. ANY PERSONS IN AGREEMENT WITH THIS RELOCATION PLEASE STATE YOUR NAME BELOW. 2. 1 .kL c,v ., 3. c 7 Pti ///�',4vYr rix 4. C{ , �� ) �!l 77O1. f,1, nk AA a)9SR/ Lc, 0. /a/ k/eyw. Go�Y� a O I U .17- In) C 0 U,(RT 16. / 04 (1G'ri.'D 17. /CS L?/4N17,ift Di7_. 18. Z -19O/ -/,%d/�>w 19 S 6rA4/1ccc-' ,j- 20./07 Ct dt'ic J 74 21. 22. 951899 PETITION FOR RELOCATION TO ALL PERSONS CONCERNED: THIS IS A PETITION TO RELOCATE THE WESTERN SUGAR BEET RECEIVING STATION. THE CURRENT LOCATION REMAINS IN THE; THE GRAND VIEW RESIDENTIAL AREA LEGAL DESCRIPTION OF RELOCATION BEING; THE NORTHWEST QUARTER OF SECTION 19. TOWNSHIP THREE, NORTH RANGE SIXTY-SEVEN WEST OF THE SIXTH PRINCIPAL MERIDIAN COUNTY OF WELD STATE OF COLORADO. THIS LOCATION IS APPROXIMATELY; AT WELD COUNTY ROAD #I3, AND WELD COUNTY ROAD #32. ANY PERSONS IN AGREEMENT WITH THIS RELOCATION PLEASE STATE YOUR NAME BELOW. 8. Lib ?)d `3QLI s. 4597 /-,y // • 113 C(NnVle�7 Cifely /0L l CL/ L:C&1/4L)/. 0. A/7vY 0114 /3 •(CI -kw) (4w • It *67O w c ,C 3 L • 951899 Board Of County Commissioners Weld County Centennial Center 915 10th Street, First Floor Greeley, Colo., 19 June 1995 Dear Commissioners, I am writing this letter in response to the sugar beet rec- eiving station. My name is Dianne Ward. I own and reside on Grandview Estates outlots B and C. I am possibly the person closest to the proposed sugar beet receiving station. I am not opposed to, in fact, I am strongly in favor of said station. I -would like to remind everyone concerned of a few details. Weld County is a farming community. Many people, as well as the Sekichs'-.make their living by farming. I do not feel we should take away their right to make a living. Most of the people who reside in Grandview Estates moved from the city to be "in the country". Yet as soon as they get "in the country", they want to start changing things. May I remind them the farms were here long before they were. I personally enjoy the entire harvest season. I enjoy everything from the first hay cutting to the silage of the field corn. I also have always enjoyed watching the trucks come and to to build the sugar beet mountains. To me it means many farmers had a good crop, and that is good. THE FARMS WERE HERE FIRST!!! Thank You Dianne Ward 951899 J CO 0 F, InZ L (n! C CO I I DR , N 1 O Ir, Z � � T 1 1 r IA O I I ;off • I cn jb -,o- ZYZ0Y N a ▪ ▪ � GE N011035 ill MS 3NIl 1S3M ,L17•9Zc 1 3 „ 1,00.00 S .66.6GC 3 SL.00.00 S 00•001. „cZ,00.00 S I GE NOI103S ill MS 3N1l 1SY3 VS' tfZ LT UI Z n JZC rl Cn 2nr C_ r �zr Z O -4 x Z r cn CDR U, C • m n z O to a (JJ m W o O w tn 23 z c) to m o • Z C u� v nz= �oP O, A J z U P1§51899 L CONCEPT P]aP U [] L1 U UU �' tai Mel N :J.2131 M d II1 1 2°.[92 1) re 0 z 23500 UNLESS NOTED OTHERWISE. iS9NINOI Al ;Wen 1.4 0.004 _ 20420 Z N 0 ;-M W2 �ff�g mCg Q n � n r. idizEQ 3.4°.m -an W n �L P i2 ra “� IW 61 U i „29 n) F o dy 9-- a X u �- 5 a h� --fir _...„2„-- _..,- x _ o a # d �50° i ,�I' ?•-�- J1 w 1119; L9 �4 = W Tsai.' lb a s co -wort c 'maw i I . I _____1___L ____..CCU--__—__ — — - Ax Wkf,fi VI -04 1' tiWWtifl /VIII lye d :Ld.m:m W W S 00'00'15' f EXHIBIT "A" 951899 W an.inOiaod 'ONI SWLI`di HOIN3S 3NIl 2I31VM ..9 Mll z £ L ?!3M 3anjlno Dv ANWINO0 3'111V0 S 01ONA321 951899 'N V `d Co u-YN-.-Li L a m. l vti 1 s C r C 1 V t /1-f JD K).. 1-7+h c\ 0 e, . Gc-a\e..y C_Az3/O . Ito 3 i GG.r\A Q.:a PcoPer/karyowr,e.rs O P Q o.s eeo the b e AA- CS... Int fNa Q\ 3a . 1TE7 c sse / !/C5 &r-r,tJ c-' k ,©n G� tif. dr,4 , gooOy �lrj 8 CDs rRbo5 62 to (or1 Di) C. /30m5 LA-)RO Cxr'e.- O ed. 13 951899 &esai9 ,Gcile 11 dua a/oreid U��FOS0 '& v /N /0 9 6)/1 Da e /&7 (rfe/% . spier /70 k' tvo V/64✓ De -LotkitezioAfr-r co gin q- Oukr, 0 6—e(ucQ;w Cent. C� &osoc/ X3;11 i teciaL._ 66 10sU;ect) C,4. (_o n svn,a n , �OS�f A.)("LIS-o4L 951899 4 (Z7LA %r1449 lag, Grea-.1 (1- 44-1 Din CO 6ocoY litre- SD° Cleo r9 k Ten H.Q u 4 rvw l t l Grand \Rem Or. L ons mon*, CO 80 so 4- w Jo I h t 5fe,AcQ /ft_ e� 1 / ? 6r � � (/ ,c w j9 o fly 6 n_4 Co . ray -0 V kaJ4I. �' �O •c- /: 2 u y• go say 951899 4 "( i57 Nt ^ L' -i,2-nLe'-D2c'-��-i-� 7, } 1 `.e�� Zt2.. L�4'tG'l��`v ��c�{ c,J -L(� jiti j t L t L lu ) Z"1 l�� 2 X1,t ps M.1\ -62i >to 2 L L° O&- 62muc{ Urtti,t) t'/Z /44_974-7 Co/. .9 ovoy, `61 951899 A6 DAILY TIMES -CA THURSDAY, MAY 18, 1995 Weld board OKs beet dump By KRIS HUDSON Times -Call Staff Writer GREELEY — Plans for a beet dump at the south- eastern corner of Weld County roads 32 and 13 won approval from the Weld County Planning Commis- sion. Four months ago the Town of Mead rejected the same proposal. The Planning Commission voted 6-1 on Tuesday to approve Fred and Nick Sekich's plans to install a 24 - acre sugar beet receiving station on land directly north of the brothers' Grand View Estates sub- division. The plans now go to the county commissioners for review. In a referral notice to the county, the town of Mead did not object to plans for the beet dump at the pro - Easton told the commission she had heard numerous concerns from neighbors of the site, including Harvey and Barbara Fiechtner, who own an interest in the Highland Ditch that runs along the proposed beet dump site. According to Easton, neighbors are concerned about traffic, noise, dust, a possible decline in prop- erty values and a drop in quality of "quiet country living." The Sekich brothers withdrew their dump applica- tion in Mead when the board indicated it would not approve the plan. The application was scrutinized by those opposed to the town's growth. Planning Commission member Judy Yamaguchi was the lone dissenting vote Tuesday, explaining she had concerns about the health and safety of children nosed location. However, County Planner Shaney in the area. 951899 copalcis- -To k Q down. cAcc to ou,A , Ro4 co . aAeal c&- Ho o &-Lo/ncLumio turAzzlfi‘cfsct `�- - 1996 . b3 �duiltimin onto( any C 4t t4t4 mA `fi p iii � Arto (tea cow( unk0 &oak /o (9KQite At -cam a/o l U ��;.-Q-�`�n adacc ne ,Q C6% cAlgt wee (k co rne ,be. yAtopu2aotiActe an& az). a EXHIBIT titainit rX01 COT- , l.�lu►� i � /' T 970- Q713 951899 June 18, 1995 To the Board of County Commissioners Weld County, Colorado RE: A Site Specific Development Plan and Sepcial Review Permit for an agricultural and sugar beet receiving station. Dear Sirs, We herewith voice our objections and concerns regarding the present location or relocation of the sugar beet receiving station close and ajacent to Grand View Estates. When we moved into our home September of 1994 we were told about the presence of the beet receiving station, and specifically promised that this was the last year it would be in its present location. Some months later we find out that a request has been submitted to move it just to the north, within 500 feet of our property. On one side, or the other, of our property is the same to us: - Very heavy traffic, day and night, for a lot longer than the three weeks that is being claimed. Two months is probably more like it! Last fall we have at times counted up to 17 trucks waiting in line to dump their loads. With that kind of heavy traffic comes danger and a lot of noise! - If we had children our objections to having this heavy traffic, even if only for eight to ten weeks a year, would be even much stronger. We would be terrified to have our child or children play on the play -ground right next to one of the two service roads, or wait at the bus stop i.e. with these monster -trucks zooming by ... a trajedy waiting to happen! - Last but not least. We have heard the remark: "You have moved into farm country, now you want to move the farmers out!" Our contention is that we did not buy a farm, or a house in the middle of farm country. We purchased a home in a development, in a subdivision controlled by strict covenants, which we like so we would not be subject to a "dump" next to us. The homes in Grand View Estates are certainly valued between two and three hundred thousand dollars, and plus! and we feel a sugar beet receiving station would threaten the value of these properties. We hope you will respect our objections and concerns and agree with us, and our neighbors, that the beet receiving station be moved to a very different location. Sincerely, Hans J. Kissner 110 Grandview Drive, Longmont, CO 80504-9699 PENGAD-Bayonne, N.J. EXHIBIT 1 Murielle C. Kissner /mss 7e 951899 ladte-N, r1/4C 4- y,Vd4at) zaa Aelfi-eritAd--n-t-)Slastfftr-nt- Ait✓ . l�r%Qi.�r -sue L� oar %rer ai , arLLLI }-z tr pittot zzio st-j-,-frery& ' - w 0-1 VC+) Jteet-a_eer-irvid; . ,DAPlist 7:aterad<zinno--ia> AgeetLe-hz_e__ Baali2aloo � a 951899 4/ May 10, 1995 Weld County Department of Planning Services 1400 N. 17th Ave. Greeley, CO 80631 RE: Case Number USR-1082 Sekich Equipment Co. This letter is in response to your letter sent to property owners within 500 feet of Sekich proposed Beet Dump Site. I am opposed to this request for the following reasons: . Safety .Increased Traffic . Hours of Operation (at times 24 hours a day) . Noise Level . Possible devaluation of residential property . Overall reduction in quality of life for residences and surrounding neighbors of Grandview Estates; Town of Mead Please take our concerns into consideration when reviewing the above proposal. Respectfully submitted, vvw en ell J. Founta 109 Grandview Dr. Longmont, CO 80504 EXHIBIT 1 951899 Comments Comments regarding a letter from Teresa Jones, a letter from the St. Vrain Valley School District and the Fiechtner Family letter. 1. Letter from Teresa Jones, State of Colorado, Department of Transportation she states: A. Traffic impact - 700 - 800 vehicles per day. B. Narrow paved Need adequate vehicles which roadway turning frequent C. Culverts end very near line is approximately 4 on WCR 13 and minimal radius. radius for large agricultural intersection. the edge of shoulder and flow feet below pavement grade. D. Single house on corner - surrounded by trees - property bordered by fence. Note: Weld County also stated that this same house creates a visibility hazard. E. Sign also exists at the corner. F. Large vehicles turning at intersection require waiting vehicles on WCR 13 to back away from the intersection in order to allow the large vehicles to make their turn. This is due to culverts, narrowness of shoulders and lack of adequate radius. G. Turning maneuvers at the intersection to be made at very slow speed disrupting high speed traffic on State Highway 66. H. If proposed beet dump traffic increases at this intersection by 20% the Department strongly encourages improvements. Conditions at the intersection are currently not standard for the vehicle type traffic. I. Please read State Highway Access Code Section 2.10.4 mentioned in Teresa Joneses letter page two. J. 1990 - 1994 accident report states that a total of 10 accidents occurred at the intersection. Eleven people injured - accidents are a combination of broad -side, rear -end and approach turn accidents. Majority occurred during daylight hours. K. Flashing beacon exist for stopping traffic on WCR 13 indicating that this location has been recognized a potential hazard. 951899 L. Backing maneuvers for use on the intersection by large vehicles presents a hazard and unsafe condition for both the intersection traffic and the through traffic on State Highway 66. 2. Letter from St. Vrain Valley School District: A. Concern with children being school buses. There is a the morning and 2 buses in stops to pick children up and Secondary students) B. picked up at Grand View by possibility that 2 buses in the afternoon will make 6 at Grand View. (Elementary With increased truck traffic the serious truck -school bus accident well. potential for a will increase as C. Grand View housing area being developed in same area as proposed beet dump site, it is likely school bus traffic may increase as well. D. Perhaps a location could be found that is less populated and that beet truck traffic would have lesser impact on residents and students. E. Beet trucks run for one semester of school. First semester starts with the first day of school in August until the middle of January. Beet truck traffic runs from September 15 - January 15. 3. Report from Larry Haas Department of Transportation, State of Colorado: (State Highway 66) A. Traffic predictions for 1995 will be 6,000 vehicles per day and this does not reflect new housing developments or new businesses that will increase traffic. 4. Report from Drew Scheltdinga, Weld County Public Works: A. Weld County Road 13 between Highway 60 and Highway 66 is classified as and arterial road. Which means that it has the highest traffic volume on Weld County roads. B. Average of 4 accidents a year on this stretch of road. 5. Fifty-five percent of vehicles traveling on WCR 13 are exceeding the speed limit. 6. Weld County Road 13: A. Has 12 foot lanes and 2 foot shoulders and no base only original soil under pavement. -2- 951899 B. Speed limit is 45 mph at Grand View and 55 mph at the proposed beet dump site. C. Accesses accesses accesses - 16 accesses in a half mile - with proposed for beet dump the total will rise to 20 within a mile between Hwy 66 and WCR 32. D. WCR 13 and WCR 32 is narrow and there is a potential hazard at this intersection. 7. Weld County Public Works 24 hour traffic count at Grand View, April 25, 1995 - approximately 1000 vehicles traveled north on WCR 13. That number will increase daily with developing in Grand View, Johnstown and Milliken area. 8. Weld County Road 13 - Mud on WCR 13 from beet trucks. More trucks - a lot more mud. At the present beet dump, beet trucks have 1/3 mile to travel before accessing WCR 13. The proposed beet dump location is adjacent to WCR 13. 9. Will A. B. C. D. E. F. be referring to our letter dated June 16, 1995. Liability on ditch in case of accident involving beet operation? Who pays damages if the flow of water is stopped? Noise pollution from trucks and loader 24 hours a day. Need sound barrier placed around beet dump. Dust pollution - truck dust on WCR 32. Concerns livestock. Applicants pollution. traffic inside beet dump and about dust pneumonia in our need to control the dust Mud on WCR 13. Deceleration and acceleration lanes on Highway 66 and WCR 13. We are asking that you comply with Zoning Ordinance 24.4.2.7 - That there is adequate provision for the protection of the health, safety and welfare of the inhabitants of the NEIGHBORHOOD and the COUNTY. Also, Zoning Ordinance 24.5.1.8 - The access shall be located and designed to be safe; ingress and egress shall not present a safety hazard to the traveling public or to the vehicle accessing the property. For USES generating high traffic volumes and large number of large, slow accelerating vehicles, acceleration and deceleration lanes may be required to mitigate a potential hazard. -3- 951899 G. Reduced speed zones. H. Truck lights at night are a nuisance. I. Weld County Road 13 has two foot shoulders and the Weld County Comprehensive Plan states that arterial roads are 12 foot lanes and 4 foot shoulders. -4- 951899 PL0998 951899 PHOTOS MARKED EXHIBIT "T" ARE IN THE ORIGINAL FILE 1-i Board Of County Commissioners Weld County Centennial Center, 915 10th Street, First Floor Greeley, Colo., , 19 June 1995 Dear Commissioners, I am writing this letter in response to the sugar beet rec- eiving station. My name is Dianne Ward. I own and reside on Grandview Estates outlots B and C. I am possibly the person closest to the proposed sugar beet receiving station. I am not opposed to, in fact, I am strongly in favor of said station. I would like to remind everyone concerned of a few details. Weld County is a farming community. Many people, as well as the Sekichs'. make their living by farming. I do not feel we should take away their right to make a living. Most of the people who reside in Grandview Estates moved from the city to be "in the country". Yet as soon as they get "in the country", they want to start changing things. May I remind them the farms were here long before they were. I personally enjoy the entire harvest season. I enjoy everything from the first hay cutting to the silage of the field corn. I also have always enjoyed watching the trucks come and to to build the sugar beet mountains. To me it means many farmers had a good crop, and that is good. THE FARMS WERE HERE FIRST!!! Thank You [Ka 77 - ulf x.44 Dianne Ward ce&c; c/f fit` /PL 951899 52 ALR3d meat is or will alit of way. 10 necessity where le by navigable ermissible vana- nptive easements aableness of use rcise of easement terms. 3 ALR3d of servient tene- it of way to dedi- R2d 1236. as prohibiting or ges, or the like. 66 nortgage or trust easement claimed nation or exception, tenant, in addition to a discussion of the ts, generally, by ex - .m Jur 2d, Easements or a discussion of the s, generally, by reser- and by agreement or in Jur 2d. Easements reservation or excep- ament and covenant). nt of the creation of y, by prescnption, see sements and Licenses ecifically, see 25 Am and Licenses H 4`}-16, the acquisition of pn- y prescription. ecessity, an easement plied grant or implied fed and discussed in 25 ernents and Licenses I '5 Am Jur 2d, Ease- s 47, for a discussion etween a way of neces- f way acquired by pre- sion of the creation of dlv, by implication, see ,ements §§224-33• in, overor under AL.22d '1,97. kci O151tO11 by user )r prescrip non of right of way over uninclosed land. 46 ALR2i 1140. Conveyance of (and as bounded by road, street. or other way as -giving grantee rights in or to such way. 46 ALR2d 461. Right to park vehicles on private way. 37 ALR2d 944. Necessary parties defendant to suit to prevent or remove obstruction or interference with easement of way. 28 ALR2d 409. Width of way created by express grant. reservation, or exception not specifying width. 28 ALR2d 253. Effect of provisions designating or referring to persons entitled to use right of way created by express grant. 20 ALR2d 796. Right of owner of easement of way to make improvements or repairs thereon. 112 ALR 1303. Proper remedy for interference with right of way. 47 ALR 552. § 2. Summary and comment [a] Generally A servient estate owner generally has all rights and benefits of owner- ship consistent with an easement, and the right co use the land remains in him. without any express reservation to that effect, so far as such right does not conflict with the purpose and character of the easement.10 Thus, the owner of land subject to a right of way may himself use the way for any purpose, provided he does FENCE OR CAFE \caoss RIGHT or Way I5 52 VLaid 3 § 2(a) property_ 46 not interfere with the right of passage resting in the owner of the easement; ordinarily, what may be considered a proper use by the servient owner is a question of fact." The first step in analyzing the sub- ject of this annotation is to recognize that rights of way are acquired by different means and that the differen- ces are often legally significant. The annotation, therefore, is divided into cases where the right of way was acquired by grant,'2 by necessity or otherwise by implication," or by pre- scription." Turning first to gates across a right of way acquired by grant, the general rule is that the grant of a way without reservation of the right to maintain gates does not necessarily preclude the servient estate owner from having such gates, and unless it is expressly stipulated in the grant that the way shall he an open one, or unless a prohibition of gates is implied from the circumstances, the servient owner may maintain a gate across the way if necessary for the use of the servient estate and if the gate does not unrea- sonably interfere with the right of passage.'s Several cases support the proposition that a servient owner may maintain gates at the ends of the right of way, unless such gates are expressly prohibited by the grant, or prohibited by implication from the surrounding circumstances.ts A Few cases support the rule that a way acquired by grant for agricultural pur- poses may properly be subject to a reasonably established gate.t1 The 10. See 25 Am Jur 2d. Easements and Licenses § 39. See also Restatement, Property § 481 Iprescription) and 3 486 (grant). 14. H 30-41, 45, infra. 15. § 3, infra. See also 25 Am Jur 2d. Easements and 11- See 25 Am Jur 2d, Easements and Licenses § 91. Licenses § 39. 12. §§ 3-24, 43, infra. 13. H 25-29, 44, infra. 16. § 4, infra. 17.3 5, infra. 951899 25 Am Jur 2d EASEMENTS AND prescription carriesif`such incidents as are necessary to its reasonable enjoyment. - C. MAINTENANCE AND REPAIRS 85. Generally. It is not only the right but the duty of the owner of an easement to keep it in repair:3 the owner of the servient tenement is under no duty to maintain or repair it,' in the absence of an agreement therefor.' The easement owner is not bound, however, to repair and maintain the easement for the benefit of the servient owner,' but he may make it as usable as possible for the purpose of the right owned, so long as he does not increase the burden on the servient estate or unreasonably interfere with the rights of the owner thereof' P2d 10; Crotty v New River Sc P. Consol. Coal Co. 72 W Va 58,78 SE 233. A fight of way by prescription is to be bounded by a line of reasonable enjoyment. Northwest Cities Gas Co. v Western Fuel Co. 17 Wash 2d +82, 135 P2d 367. 2. Drieth v Dormer, 148 Neb +22, 27 NW2d 943. 3. Rose v Peters, 39 Cal App 2d 333, 139 P2d 983; Holt v Wissinger, 145 Conn 106, 139 A2d 353: Hogan v Cowart, 182 Ga 145, 184 SE 384; Bellevue v Daly, 14 Idaho 345, 94 P 1036: Dudgeon v Bronson, 159 Ind 362, 54 NE 910, 55 NE 752; Spalding v Louisville .k N. R. Co. 281 Ky 357, 136 NW2d I; Guil- let v Livernois. 297 Mass 337, 3 NE2d 921, 112 ALR 1300: Moore v White, 159 Mich +60, 124 NW 52; Sinker v Board of County Comrs. ' Ney) 396 92d 737; Hyland v Fonda, k4 NJ Super 180, 129 A2d 899: Craft v John L. Roper Lumber Co. 181 NC 29, 106 SE ;38; Hammond v Hammond. 258 Pa 31, 101 A 355; Cathy v Armstrong (Tex Civ App) 205 SW2d +03, error ref a r e. Annotation: 169 ALR 1148 (water ease- ment). The owner of an easement in an artificial drainage ditch across the land of another for :he discharge of surface waters from his dominent land, if the only party benefited thereby, has :he duty of keeping the easement in repair and must -bear the entire cost of cleaning out and reopening the ditch when it becomes tilled by natural causes. Nixon v Welch, 238 Iowa 34, 24 NW2d 476, 169 ALR 1141. 4. Bellevue v Daly, 14 Idaho 545, 94 P 1036; Harvey v Crane, 85 Mich 316. 48 NW 382: Stotzenberger v Perkins, 332 Mo 391, 38 SW2d 983; Ricenbaw v Kraus, 157 Neb 723. 51 NW2d 350; Sinkey v Board of County Comm. (Nevi 396 P2d 737; Mad- dock v Chase. 94 NH 241, 31 A2d 145; Herman v Roberts, 119 NY 37. 23 NE 442; Richardson v Iennings, 184 NC 559, 114 SE 321 : Onev v West Buena Vista Land Co. 104 Va 580, 32 SE 343: Canon v Jackson Land 1 Min. Co. 90 W Va 781, 111 SE 846. Annotation: 169 ALR 1152 (water ease- ment). 5. Buckley v Maxson, 120 Conn 311. 181 A 922; Bina v Bina, 213 Iowa 432, 239 NW 58, 78 ALR 1216; Spalding v Louisville § N. R. Co. 281 Ky 357, 136 SW2d I: Dyer v Compere, 41 NM 716, 73 P2d 1356. The parties may alter their legal obliga- tions by contract, and the owner of the servi- ent tenement may by agreement obligate Him- self to make repairs or loin in keeping the easement in repair. Rose v Peters, 39 Cal App 2d 833. 139 P2d 983: Greeniarb v R. S. K. Realty Corp. 256 NY 130. 175 NE 649, rearg den 256 NY 678, 177 NE 190. It is competent to show by oral evidence that the owner of the servient tenement promised to grade and work a right of way acquired by :he dominant owner so that it would be it for travel. Cole v Hadley, 162 Mass 379, 39 NE 279. Practice .Aida. —Agreement for joint main- tenance of easement of way in common. 5 .AN ,ITtiR LEGAL FORMS 5:638-3:660. 6. Schuricht v Hammen, 221 Nfo App 389. 277 SW 944; Craft v john L. Roper Lumber Co. 181 NC 29, 106 SE 138. The duty of a railroad to maintain a farm crossing, under an express reservation in a deed of a right of way to it, does not include any duty to maintain a conduit constructed underneath the right of way for the purpose of carrying electricity to farm buildings, this being the duty of the owner of the land, since the conduit is not a part of the crossing but more in the nature of a vehicle using the crossing. New York C. R. Co. v Yarian. 219 Ind 477, 39 NE2d 604, 139 ALR 455. 7. Dudgeon v Bronson, 159 Ind 562. 64 NE 910, 65 NE 752: Bina v Bina, 213 Iowa 432. 239 NW 68. 78 ALR 1216; Elam v Elam (Ky) 322 SW2d 703: Moore v White, 159 Mich 460. 124 NW 62: Stotzenberger v Per- kins. 332 Mo 391. 58 SW2d 983: Hammond v Hammond. 258 Pa 51. 101 A 355; Knuth v Vogels. 265 Wis 341, 61 NW2d 301. Annotation: 112 .ALR 1303. The right of the owner of an easement 951899 tLemer,,:_ ;uci vS 1 vrtcri .o :1 ;Lllr'dJu5ls : rye- -- -:mmon cross vhlc❑ suc mail -nns and )v 1 'Jerson woo 'nas the 'll:0en )f 'cascnaoie 'epain, mist oe 115- ....-. !n JirOi;r't0n IS 10:1:1. 15 00551012 TO :hear relative 3ti Right ,t access to make repairs or improvements: secondary easements. arcer 5wner of an easement may perform :he Mr; Jf keeping -t1 "spa:r.'° le ow, :he right TO enter _he ,erment estate at 111 :easonaole -.sues To elect me necessary repairs and maintenance.' n even to make orig- .nai onstruc one necessary for eniovment 31 she easement.' Such right is va'.. :o make_ repairs -assts without :sues- 13. Knuth v Vogeis, 265 Wu 341, 51 NW2d _on•vnere 'ae vav s Impassabie and useless 30:. vithout repairs_ Garnet r Cbcernois, 197 Mass 33" ♦r.S1 )21, 12 ALR 1300: Bors t:Cowan 59 Nth 790. 68 NW^ -3.596. 3. Goan Allgood. 3U ❑I 381, 141 'NE (79: Huitzen Witham, '46 Me 118, 78 A2d� Curlier v L vemois. 297 Mass 337. 3 NE 'd 321. :12 .kLR ',300. 9. Dean Allgood. 310 Ill 381, 141 NE 10. i'foit v Wissinger. :45 Conn :06, 139 Y2d 353: Bellevue v Daly, 14 Idaho 545. 94 P :036: Garnet > Livernois, 297 Mass 337. 3 NE'2d 921. 112 _ALR 1300: Moore v White. 159 Mich 460. :24 NW 52: Thompson Y Wil- liams Tex Cis/ _{pp) 249 SW2d 238, affd :52 Tex -'70. 256 SW2d 399: Oney v West Buena Vista Land Co. 104 Va 580, 52 SE 343. A way may be regraded without consent of ;ervient owner. Hughes v Boyer, 5 Wash 22d 31. 104 P222d 760. The iwner of an easement of way may de- press the grade of the way so as to make :t accessible to a public highway with which :t connects. Mercurio v Hall, 31 Ind ADO 554. 144 NE 248: Bors v McGowan, 159 ?Leh 790. 58 NW2d 596. 11. 3ors v McGowan, supra: Herman v Roberts, 119 NY 37. 23 NE 442: Thompson v Williams :Tex Civ .kop) 449 SW2d 238. atria 152 Tex 270. 256 SW2d 399. Annotation: 112 ALR 1308. 12. Guillet v Livernois, 297 Mass 337, 3 NE2d 921. 112 ALR 1300. 492 14. Scnuricht v Hammen, 321 Mo .App 389. 7 SW '144: Mehene v Bali. 12 Misc Id 577. 194 NYS2d 28: Cain v A.spmwail-Deiatieid Co 139 Pa 535. 137 A 510; Snfei v Hannan, 95 W Va 617. 123 SE 371 15. 3:na v Bina, 213 Iowa 432, 239 NW d8: ; 8 ALR 1216. 16..35, supra. 17. Lamb v Dade County (Fla App) 159 So 25 477: Central Kentucky Natural Gas Co. v Huis iRty! 141 SW2d 386, -'8 ALR2d 621: Tong v Feldman. 152 Md 398, 136 A 822, 31 ALR 12_91: Prescott v Williams, 46 Mass 15 Met) 429: Dyer v Compere, 41 NM 716. 73 P25 1356; Otter Tail Power Co. v Maime ;NI)) 92 NW2t1 514. Annotation: 169 ALR 1148 (water ease- ments); 28 ALR2d 530, , 4 (pipeline -2,-- merits). A person having an easement in a ditch running through the land of another may go on .he servient :and and use so mach thereof as may be required to make all necessary re - pain and to clean out the ditch at' all rea- sonable times. Canon v Gentner, 33 Or 512. 52 P 506; Holm v Davis, +1 Utah 200, 125 P 403. The owner of the servient estate, over whose land an easement exists in a watercourse in favor of the owner of the dominant estate, must Jermit the cleaning out of the water- course across his land. Nixon v Welch, 238 Iowa 34, 24 NW2d 476, 169 AIR 1141. 18. United States v 3.08 Acres of Land 951899 :lc lute :o nand r r.r:r .r 1n ::asetnent, 2 out tie ...,red frr: :nte er1nc -.vice or nostructing it." HH: aas. how .ter, Resents It >wnersnio consistent with the-asement::a toe :igct remains n tits. .*ithout Inv express 7eseni_e',n >_ :ha ...c_.1° no .e'-'., gh allerenv leur:vmg i I..lehr enan: us a ngnt Jo- a rgn. ne ni.,,n•.ant Pnant rna 'e'er -o -sire -he :iectrc ,gets. Mt. nKe Rea10/ 33ra • 3oiwKe .3..cait0 _,0r]. - _ Mass '_ 98 NE'2c ' _ r lLR 289. cnos '-cx. Conn -'t '9 3033 :has ' M tomes �1?7 Minn -N1 -8 Y'•V 'Ro: Sicott Thompson. 9 NH 154. ' r nardson Cements. 39 Pa 1)3' Big Cot - on torn Tanner Ditcn Co. r Movie. '09 Utah _._ 73 3.203 'l8. 172 \Lai :caner 1 i content tenement stay -nodiry :tie nstrumentaiities Jf 'ne easement .v icing in le ices not macenaily affect .nc -cars a he owner -a me laminant tene- ;(ii'son v Laughlin. Md 576. _ ;_d 110, 30 dLR^_d '31. 3. _Salines v Garner. 165 Cal 'pp 2d 182, -22 020 436. 10. Menene v Bail. 22 Misr 26 377. 194 NYS2d :9: Big Cottonwood Tanner Ditch Co. Movie, 109 Utah 213, 174 926 :48. :72 ALR : -5: Stifel v Hannan, 35 W Va 3517. 123 SE a. I 11. Evicn v Kovacevich. 33 Wash 2d 151, 224- ?2n 339. 12. j 35. supra. 13. Danielson v Sykes, 157 Cal 586. 109 P 37`. Carrig v -Andrews, 127 Conn +03, 17 \_d 220, 132 .ALR '393: Tomchak v Harris. i Idaho 448. 32 -?2d 1025: Tehan v Security Nat. Bank. .340 Mass 176. 163 NE2d 646; , .nasev v Thaw. 210 Miss 333. b9 So 26 380: Barr v Lamaster, +8 Nth 114. 'i6 NW 1110: Weiv Atlantic Beach Holding Corp. 1 NY 494 '0 I N37. 92o n 5 itnc-s- ana Shea 261 NC 32 3- Jett Van Conn- Tex 2 '6 it 3,3 U5' Plane ..e:n., g, ,d '.V L a 109 -.. • SE 157. The ;enrage if tats used 0r -n0 iep0s¢ )t lanes and -noise :n I :rive:vas, Nnica L'1 Lolom ing hvaer Ras lie right :o :se n 1n taming access :o us ]remises :0nsututes i violation H the rights ri such owner. Fried- man 0 Kcal, :13 NJ ISq 3. 166 s 194. 16 ALR 995. 14. Paine v Chandler. :34 NY 38. ,2_ NE :8. Practice Aids. -Agreement as to right to 'ase driveway subject -o equal rights if ;rant - or. 5 Aa JUR LEGAL FORMS 5:626. 15- Drainage Dist. of Mississippi County v Holly, 213 Ark 389. 214 SW2d 224: Pasa- dena v California -Michigan Land 4 Water Co. 17 Cal 2d 576, 110 P2d 383, 133 ALR 1186: Reynolds Irv. Distv Sproat. 59 Idaho 715. 206 P^_d 774: Shedd v Northern Indiana Public Serv. Co. 206 Ind 35, 188 NE 322, 90 ALR 1020; Horky v Kentucky Utilities Co- 'Ky1 336 SW2d 588: Hasseibring v Koepke, 263 Mich x66. 248 NW 369. 93 ALR :170; Stotzenberger v Perkins, 332 Mo 391. 58 SW2d 983: Otter Tail Power Co_ v Von Bank. 72 ND 497, d NW2d 599, 145 ALR :343; Luster v 'Garner, 128 Tenn 160, 159 SW 604; Dulin v Ohio River R. Co. 73 W Va 166, 30 SE 145. A landowner may to some extent conduct reasonable mining operations in the vicinity of a pipeline under his and. East Ohio Gas Co. v James Bros. Coal Co. ''3CP' 40 Ohio Ops +40. 53 Ohio L Abs +38„35 NE2d 816. 951899 .a,arnat m 110: or :re -,u,^, a,.:., 104. hater, st 'tie r•qr :o onsrnrct :mss:cn : ine- manner .vni. for ucn in, Bowman, __. 'd :94. The iwner :udv excavar nr )Cher -as, nrerterenre Walker. __ 17. 13oilins 643. 108 io California -At - Cal _6 376. Fork Meve- Ga '48. 2 - Idaho 545, mnnn, :302 K- Whire. 159 �! .i, N1/2I .!c. ') ]: a r- -, -sp +Lil _i `Disc::'''tt t n ;unn romanon sucp -ase- oh t 9 pe:.er is -o Ilion se,— :eye 0.e] le 'Or- -Osiris ,,1na )r ''ice n r9Co _cc 'L >mnz^_ o .7D,o 8'.72 1Ar uqumh_OP )v l numc:Cda :inc. n in easement :n l v}v or - CJn9CPlC- ion O l rarer ::anoint. lane .'set he -u race. 'o le ompose❑ n rte most Sur - tole materai, Does lot iepnve 'he fee lwner he igat 'o :onsLNc: l .ewer Inoue !t. t'•'.cv Camondge, 220 `.[ass i 08 `!E '.e swner Dt and -u'eject '.o s right to onstruca and maintain electrical Dower mns- missmn .'rtes has the right to use it .n Inv manner wnicn does not .nterfere vith ❑ ase for such lines. Carolina Power i L. Co.vBowman, 229 NC 382, 51 SE2d 9l, 3 ALR _d '.94. The owner of a sentient '.enement may iaw- :uily excavate nder :he surface of in silts,/ Dr ether easement of passage If 'here ':e to .nterference vrth :he passageway. Mershon "Vaiker, 215 Pa H, 614 A 403. 17. 2oiiins v Alabama Power Co. 214 Ala 043. '.J8 So 368, 46 AL3 1459; Pasadena California -Michigan Land & Water Co.17 Cal 161 576. 510 22d 383, :33 ALP. 1186: 7o;k z Meverhardt Lodge. F ?c k. M. 218 Ga 238. :17 SE2d 298: Bellevue 3 Jail, 14 [lane 345, 94 P 1036: Holbrook v Ham- mond, 302 Ky 10, 192 3Wn_d 746: Moore v White, :59 Mich 460, 124 NW 52. 'te, i', 1:Q '.v ,. tenea tc andis i.stinguisn'_1 rnT :ties .,,Seed n user ngm: in is zanais s ^.ltcnes, -he .anc- :se lne i urac- Dyer 1 pipeline :or ignnlaural ouposes. 3aomr . Shell ?ice 1..rte Corp. CC 'do 23F Supp .P- Indus- tnat On _.e 'ones, 9' :Disk)'pp.. 5.55. 3 3hnr Jcs D25, 24 N'E25 310. rider L grant Dt 1 right Dr -.vav to D lower :nmpany for I -mnsmisston line with .he tight -o remove :ices, endergrowth, inc Defter tostruc ions. the ;cantor :nay cultivate 'he ;trip, ;bass i:ong Ind across .t, and gen- anilv use .t '.n any vay vhich does not affect he fights Df he ;rantee. Collins v Alabama Power Co. 214 Ala 543, :08 So 368, 46 AL3 1459. 19. Collins Y :Atacama Power Co., supra; Holbrook v Hammond, 302 Ky 10. 192 SW2d 746: McTavish v Carroll, 7 Md 252. 20. 3itello v Lipson. 10 Coon 497, 39 a Cusic o Givens. -0 Idaho 229, 215 92d 297; 3ina v 3ina, 213 Iowa 432, 239 NW 58, 78 AL2 :216; Williamstown v Ruby ;Ky: 336 SW2d 544: Greenwalt v McCardell, 178 Md 132. 12 A2d 522; Moore v White, 159 Mich 460, 124 NW 52; Lott v Payne, 32 Miss 218, 33 So 948; Grafton v Moir, 130 NY 465, 29 NE 974: Gibbons v Ebding, 70 Ohio St 298, 71 NE 720; Hartman v Fick, :67 Pa 18, 31 A 342; Flaherty v Fleming, 58 W Va 6169, 32 SE 357; Sizer v Quinlan, 32 Wis 590, 52 NW 590. I. That an easement to lay underground pipes :o serve the surrounding property with water for domestic purposes is of defined .width and location does not render use Df the ;trip (or a :Ike purpose Sy the sentient owner or Mt one acting within his authori- zation an unreasonable interference as matter if law. Pasadena v California -Michi- gan Land s Power Co. 17 Cal 2d 576, 110 P2d 983. :33 ALP. 1186. 495 951899 ilooctod. '59 oamcr 1-'3 111 -/ca Sorowar. C Myna 3or? '.:i5 ?a -. Once: :u:n,an 32 N's 190. :SO -3ventr36 u i'8. '.6 Cd .annotation: 37 .VL22d )43, ; 'rcj .. Is-vtdcnt Oat me owner ,t property . vntcn moaner Jerson ]as In tasement over r a invewav or `or .ngiess and :grim :nay tot onrealorlaoiy .nte-^iere vim -mac Jerson s :x of one irnoerty for Purposes of the sase- nenc ]v oarking ]u tehides in one right of .Nay. Missionary Soc. of JaiGtan Congrega- -ton v Zvroas,256 NY 36, :75 NE 523: 3aker / Kosiovesici, 117 Vt .24, 35 A2d 300. 5. loo --tong Thee v Young `sung, 36 Hawaii .32: Suiics , Hamilton, 293 ill .26, NE :82, 3 .1L2 1629; Sutton o Cniil. -2 NJ Su 213.5 A JUL 4nnotationr 3 ALR 1634. A ;rant it an easement over 1 driveway :or ngress and egress doe, not prevent the gran- -or imm .ouiiding over he way above :he int story c not appearing mac MCI molding would deprive :he grantee if sufficient light and air 'P Ise me way as a way. Grinnell 3ros. 3rown, 305 Mich 134. 171 NW 399. T e owner or tne fee viii not Be enjoined from extenaing a Jro;ection from So amid - 496 a 1:1 :CCT'. .00tl ,:7.(3. 't y..- DniCe,' ]r 1e-nay .c e_'.,T.n.. _L'rrt r,2 li )e: arc or7CCdrt' Jana. acwe'er. -IICu`a -acre S ng iarnaily across -ne va•, n vaIC.e. a -ale- M 31 -ncn: 'CSU _ v.., nor a(er:e`e vim .n" ise :deacon 'mica ne swoon- is nc -.1se- :nent :an ream:mo t to _Cpected -o 13•/e occasion :o make_ 3ite:lc /-Peon. 30 Cann -97. 17 a 31 - 7Se owner ti sne fee n '.II alleyway an - not me en:omea -rom owidng u'e-scapea over me way iv :he miner if an easement ii pas - :age tnrougn ' ne ulev wnea -ne ire escapes .i no way nterere '.vim Sniovment of nee easement National \cci. i Health his. Co. Workmen's Circle, -89 ?a 1664, 1_7 k 1184, 35 AL.R 308. A Building may Se constructed over a Train w:rere :his :an se done without ntercnng with '.0 teasonaoie ise. 3ucchenSlaughter- tng k `denting Also. 7 Commonwealth, 169 Mass 103, -7 `IE 399. Practice dads--Compiamt for interference with easement in-recnng iutiding over Pipe - Pule. 7 AM lux ?t I ?Irt FORMS 7:1235. 7. 3iteilo r Lipson. 30 Conn 497. 59 A 111; 3aker •/ Willard, :71 Mass _2_0, 50 NE -320; Grinnell '/ 3rown. 205 Mich 124. 171 NW 399: Grafton v - Moir, 130 NY s65, n-9 NE 974; Raseign Sava 3ank Sc T. Co. v 'lass, 184 NC '95. :14 SE 309:Illinois C. R. Co. v Centerville Ted. C3, :35 Tenn 198.:86 SW 90: Flaherty v Flaming. 38 W Va 569, 52 SE 357. \ 3- Goo Leong Shoe vJ'oung Hung, 36 Hawaii 132; ?attenon v Phliadeiphia k 3.- R. Co.3 Pa Co :86. 9. Goo Leong Slice Y YounX Slung, 36 Hawaii '.32: Atkins v 3oraman. 43 Maas . 2 Met) -57. 951899 olaws tae ;r •.]'.l 3adooko dice: 3uoier .a. _ Shia Cot _25. i nrtota tro n: oaruea ,n tannin noiaron it treated iv '- -miring over transmission lint -o me :ignt of 'ant and ]0ence owner :o tse .7 Juraose grantee plated ouiicing agrees to -teva:. nspecaon or x_ lint Owner. Co. v :-fuss C. 581. 12. Swift k ?ie:a t 3a: T ne :ervient stmt; moldings grant mow it ,uC. 'ascot _35 Am; . 10,A, 1":: t - t.,P?I%. a :Ian .:en:'_ e-LI 1.1.1a Tale, n ices JLI;C(iSC LacT laOLS. 30wt'VeT. - SCI n see -c -. 3oro,.tr: '6 Pa timer 3S_. ._3 i,ver um:an 'Nis 390. Larne Imentrm :6 RI 3713, 76 A✓i :1,7 tanotation: 37 sLR2a %48, 3 _ Ic -vident hat -he owner of property :er...mica mother person bas an easement :or a driveway a for .ogress and egress may -oat unreasonably interfere with that person's ue at 'ne property :Or purposes of the ease- :nent DV parking his vehicles on :he right of vay. Missionary Soc. Jf Salesian Congreza- ::on v 3vrotas,256 NY 36. 175 NE 323: 3aker v Kosiowski, 11_ Vt 12_4, 85 A2d 00. 6. Goo Leong Shee Young Hung, 36 Hawaii ',3'2: Gulick 7 Hamilton. 293 111 126, .' NE 183, 3 ALR 1629; Sutton v Grail, C7 NJ Fa ]13, 5 A 901. Annotation: 9 ALR 1634. A ;rant of an easement over a driveway for ngress and egress does pot prevent the gran - or from nuiiding aver the way above :he first sorry, a not appearing that such building .vouid teprive the grantee of sufficient :ight and air 'o use the way as a way. Grinned Bros. v Brown, :05 Mich 134. 171 NW 399. The owner of the fee will not be enjoined from extending a projection from his build - 496 n' mir•la,•v u'loss 'nc .:1'. C - ruCn in '1le- T.e':L [.513:1 'iii :Jt rte- err n C � vrl mie :nereOi an:cn [he ow=let >t :nr 1Zse' cnenC an seasonably se _sheeted :O lave ;erasion '0 maze_ 3itetlb t Lipson, 30 Conn 35 a I.. The awner n' :he Me i a an tiileywav :lot 'Se enjoined :torn building he escapes over :ne 'a by me bolder n in easement st pas - :age lrougn :he alley :vnrn :he ire scapes '.n no '.vas Inter ere with enjoyment of :he casement. National ace:. i. Health fns. Co. Workmen; Circle, '89 Pa 154, 137 A 184. 53 ALR 908. A building may be constructed over a dram -,where his :an fie done without Inren:ering .vith is reasonable use. Butchers' Slaugnter- '.ng ?t Melting Asso. v Commonwealth. 169 Mass 103, 47 NE 399. Practice .lids.—Compiaint for interference with easement in erecting building over pipe - :me. 7 Am Jan Pt .k Ps FORMS 7:1235. 7. 3iteilo v Lipson, 30 Conn 497. 69 A 21; Baker v Willard, 171 Mass 220, 50 NE 620; Grinned ., Brown. 205 Mich 134, 171 NW 399; Grafton v Moir, 130 NY 463, 29 NE 974; Raleigh Say. Bank 3r T. Co. v Vass, 184 NC -95, 114 SE 309: Illinois C. R. Co. v Centerville Tel. Co. 135 Tenn 198, 186 SW 90: Flaherty v Fleming, 38 W Va 669. 52 SE 357. 3. Goo Leong She Hawaii 132: Patterson R. Co. :3 Pa Co '1186. 9. Goo Leong She Hawaii 132: Atkins ;- Met) 457. ✓ Young Hung, 36 ✓ Philadelphia 4 R. ✓ Young Hung, 36 Bordman, 43 Mass '2 951899 :na: 3h.n, 'a, ,.2-i. Annotation: { 'lumen tr. :antnd -: roiatty. be treated Sv Sunning wet :ransmission it: [O :ne right of tam and opera: swner 'o use purpose _Trance placed mudding agrees to aieva Inspection 1r Or rant owner. Co. Huts K' 381. 12. Swift 4 _. Fie!d 3r The lenient ;eruct suddings :he grant :mpi- af men oostr 35 .Am _rue iuc c r.:' ca .antcer male -ree cri t - .ar _,.. s .e -ironer £ -ana —mr<. 11-'.�ams. Mass `°i ne .g V'L' ater :pp .class :.. . 1 ... 156 III .APP --r1]- P [PT "'I : 15 innt er pipe _ .. , .11.3 m recrect owe- ' ra. do .irP bras, im' right m e rm.nant ten: -emov,. urn =tructutes. rins ��ide t vore5 Co. .Zian uce Class] . Rome- she_ pipe ane 'Corp. DC 37 ;imp \rsansas Louisiana Gas 1.rtrer La App. 10 io 2d 364: Indus - :as La. ;ones. b2 Ohio .App 353, 16 )luo ?ps _ti 11- NE2a 330. innotatton: 23 kLa2a 430-032. 3 4. k Burden in die easement and an unwar- inred -msauon it rights :hereunder would it reared -iv tae=onstruetton of a restaurant ismuing iver a pign-pressure natural-gas 'nnsmission line :aid :n :he ground subject tae :urns of me dominant owner to main- -am and ipetate :he line and of the servient ^` ner 'o ase he premises 'Lilly accept for iuronse ;ranted. even hougn the concern - mated :wilding :5 small and -he servient owner ierees -o elevate Jr move :he building for nsoerton 3r repair in request of the dand- aant Owner. Central Kentucky Natural Gas Co Huts Ky) 241 SW2d 386, 28 ALR2d 12. Swift 3c Co. v Coker. 33 Ga '89, 10 SE 9ieid 3ariing, 149 ❑1 556, 37 NE 850. The servient owner has no right ro con- druct ou5idings on the Nay if the terms of lie {:'.[rat !mow that a Is -o he free and clear ,i men instructions. Collins v Alabama :25 :km Jur 2d)-32 13 a ;ran: in ..eery rempant- >[ rtgnt d ray or i - ransmsssion :ne vita _. 'in: a lon5Risx tae necessary rnpnartc"e '-ogerner vies -.. tie -ngnts ind env'ieees necessary 1011 movement -o ne 'us) -nis: then: rr Ise her -oz.' anu also he c:git 'Keep :sear asl -rees, snaergrowth. ane surer o nstrucnons )n l.ne Ito7. 9Xc:noes 'onsrric :ion iv :he ;mntor and his successor n !rule if rusldings so -he rght it ray henearn � transmission ,Ines. ::dins C:aoama ?owes ,Co. 2j_4 Ala 643. 108 io 368, 36 ALP.. 1459 1 •14. Hockersmith - Giideweil Ark) -53 SW 2_92'. former -v E doraao Springs Resort Co. 76 Colo .06 230 P 386: Peck v Mackowsks, 35 Conn 190, 32 A _99: Kinkade t Loons. 235 Ky 226. 10 SW28 363. 73 ALR 775: 3ishieRis v Campbell. 200 Md 922, 91 d2d 322_; Clay v Hasa, 126 Miss 323, 39 So 665; Gi6hons v Eliding, 70 Ohio St 298, 71 NE 72_0;\ Luster v Garner, 128 Tenn :60. 159 SW o94: Willing v Rooker. 160 Va 461. 168 SE 415; Wille v Bartz, 38 Wis 424, 80 NW 789. Annotation \; 3 - L.R. 779. Whether :he stan[ee has a rignt to a way free from _rates and bars depends on he terms of the grant, Ns purpose. :he nature and situation of :he property, and she manner in which it is seed. okras v McDaniel Tex Civ App) 158 SW2d 32$s The owner of an estateAservient to a right of way, if necessary for hib',own protection, the pasturage if -:sis 'rattle, ipd :he rase and enjoyment of his property, may\erect gates or bars across the way at the termini, provided they ire so located and mainrarned as not unreasonably to interfere with the privilege 497 9SS.9J9 380 cob °. 673 PACIFfr ,tf : district court, this court is In :he :,.T,, position as the district court, roncernmc ci review of the county court proceeding County Court v. Ruth, 194 Colo. 352 P.2d 1 (1978), appeal alter re.manu :9 Colo. 6, 595 P.2d °.337 (1979). Therefore. because the issue concerning the :punt'- court's ruling as to probable cause ; not subject to review by the district court. '.t s likewise not subject to review by :his . -curt. [5] Defendants also argue in the mot:on to dismiss that the district court did not have any jurisdiction, under CRC.?_ 106, to determine whether the county court moused its discretion by refusing to allow the recall of a witness at the preliminary hearing We disagree. [6,7] Although a district court cannot review the county court's factual findings of probable cause, the recalling of a witness does not involve this factual determination, but involves the procedural aspects of the preliminary hearing. Where, as here, a lower court has allegedly abused its discre- tion by failing to follow the necessary pro- cedures in conducting a preliminary hear- ing, a writ of prohibition may issue. See Kuypers v. District Court, 188 Colo. 322• .334 92d 1204 (1975). C.RC.P. 106 states that if an inferior tribunal exercising judicial func- tions has exceeded its jurisdiction or abused its discretion and there is no plain, speedy, and adequate remedy, relief may be obtain- ed in the district court. Whether the coun- ty court abused its discretion in failing to allow plaintiff to recall witnesses at the preliminary hearing was therefore property before the district court and is also properly presented here on appeal. See Thomas v: County Court, supra. The motion to dismiss is granted with respect to review of the county court's fac- tual finding of probable cause, but denied with respect to the county court's refusal to allow recall of witnesses at the preliminary hearing. Thus, the appeal is properly be- fore this court on the issue of alleged abuse of discretion by the county court for re- fusing to allow plaintiff to recall witnesses at the preliminary hearing. :Ispos:;o rt ;!ii�ertoy xlrs:e :ns T. -G prorceee n 'orma l,.'-c.^'d '°nlad this cause :o :he •❑str .)+:-" •ne pose of : onruct.ng sucn ircrie*cissi7s u Court nl1 leen; present financlai Con( '.r n :1 waintiff , to enter an inter Jcccrng-: :coy of the listrcr. town' !roes ;nail transmitted to tins court. in - .a order pas not been .'lied acthin i0 jays ,I :he date of this order, 2ialnuf_ snail -lie 1. written status report, :Inc snail iu >u ?: •n 30 ,iays :hereafter until :he l rue• PIERCE and METZGER. nncur. 0 4 fETNUMBEQ 5YSiEY) OSBORN & CAYWOOD DITCH CO.. Plaintiff -Appellee, v. Gerald GREEN and Kay Green, Defendants -Appellants. No. 32CA0028. Colorado Court of Appeals, Div. _I. Nov. 17, 1983. Landowners appealed from an injunc- tion issued by the District Court, Larimer 951899 rv1nu, 'Inc titen 70n. .mess b;'I tam the nun 'lecessar',' 1 Easements in Iction albtt :andowne- meat, -reicher d of dimensions sion of '.njunctir of easement be stricken fror 3. Easements A parry by prescription land over which meat should pot landowner. 4. Easements "whenever ty subject to an omy of :nteres s en:≥ .s i i) 3s "'Kul. ^.nrntafr ) alors. ccg L' he:. n Easement, —�nr ..._r >,osniu ' oromLrr.. :a _.:.:race an( ers ^nm is mo,uia.:. I. Waters and Water Courses = i,1S .' .1 Hun 'aaement arses ay arescrip- -ion. dimension of the access right to main- tain ne Hum , that V'llrn s reasonably necessary. J. Fasements in action for njunction seeking tto pro- hibit .andowners from ,crossing a ditch ease- ment, neither party sought a determination of dimensions of easement, and :hus provi- non of injunction specifying the dimensions of easement was not warranted and would he stricken from the injunction. 3. Easements X41 A party who has obtained an easement by prescription has not acquired title to the land over which it flows, and thus the ease- ment should not work a dispossession of the landowner. 4. Easements S Whenever :here Iis ownership of proper- ty subject to an easement, there is a dichot- omy of Interests, both of which must be )0Ject ,. .... .st lr ie5Cr )tW 1 dl..n, lr :cross Went ao,aer ; iutcn vas '.00 .road Intl re- .trCtive Inc youib ne :nodifieL to ,permit eses :hat sic not nterfere witheasement :order's Ise ind maintenance of ditch. 7. Waters and Water Courses :3=1541fl 'Landowners had a 1uaiified runt to cross. and take equipment across easement holder's iitcn to reach their property which :ay on the other side, and to irrigate their ,and by sprinkling so long as they did not unreasonably inhibit casement holder's ,ty to traverse access road, maintain ditch. spray and burn weeds, and so long as they did not damage :ditch stricture. Chilson & Stanton. P.C., John H. Chilson. Loveland, for piamdff-appellee. R.3. nickel, Berthoud, for defendants -ap- pellants. SMITH. Judge. This is an appeal from an injunction is- sued by the trial court wnich prohibited the defendants Green from irrigating across the plaintiff's canal. We modify the injunction, and, as modified affirm. 951899 r _ar e:.._ nil": reasonaoi tecessur .icc ^Sing.•., cc In ,tii.t. .na:. _e t00%, motel :)aritrscn nr- ae❑ r inl the rat :ours imer. ae iikrat:On anti nainienance it :"cam cater -tom :^u ;onns.cr reatc. -nut: onnit,on in ae iccess 'nfi�; neon an niiranis n he Linn. o tt_ ineu the tanks if :he titcn a) :hat .ne -ai:roan :at :::Ossirlirs .tut jouges a :he diitcn tanrcs vnen the tonnicter t.vneets .rossed )ver r, ion early .ncreaseii -he , veeii rowth :in toe banks of :he-iitca. Audi- :ionaiiv, because :he sprinkler kept the yanks wet, the company was manic to spray and burn the _veeds st appropriate times luring the 1978 irrigation season. 3ecause )f these and Dther difficulties the company encountered In maintaining the ditch, the company notified Green that per- mission to cross the ditch would be termi- nated at the end of the 1979 rrigation season. Green. however. continued to oper- ate :he sprinkler across the ditch through- out 1980. As a result, the company filed this action seeking damages and injunctive relief. On supporting evidence, the trial court found the defendant's operation of !ts sprin- kler system substantially interfered with the plaintiff's use and enjoyment of its ditch easement. In its decree, the trial court, feeling a need specifically to define .\/ r; 1 C .!"77Lr;LLP$ Noll 1 ,'Olt- �=� oio. 3`. 24:: ?. P302 • 1326?: see .also oilruil r. 3cva.sarii. T., ;oio.Aon. I -y, 'CC Paragraon !- ii the courts tecree states: - 'The defendants Ind tne'.r semi's. succes- sors coo assigns )e tom land hereoc en- joined and prohibited from committing any of :he following acts_ .�_ P!actng any Object if any nature ar description on, in. or across plaintiff's ditch. B. Causing or permitting any irrigation, sprinkler system to cross plaintiffs ditch or to sprinkle irrigation water on plain- tiffs ditch banks or access road. C. Interfering with or '.n any manner obstructing or preventing plaintiff's full use and enjoyment of its easement for the operation, maintenance of its irriga- tion ditch." [3] In considering the validity of the above paragraph. we start with the proposi- tion that while plaintiff had obtained an easement by prescription. it had not ac- quired title to the '.and over which it flows. The easement, therefore, should not work a n:i rOno111 to smiting nature atf's lit, restrictiv 7i - part of rig defer. ::on sort ditch Dan here, has .r BUIt� do CAYW0OD DITCH CO. v. GREEN Colo. 383 cite as 573 P.2d 380 i Colo.App. 98 3) -onsse,s ,. n:ou ber. carnani ,. comer. too '.nr. UN.?. Pit P'd 773 19611. it W'u.ene=4-- 'nerP s )wnership of r Ater', uniect 'o .asement, :here '.s 1 ncnotomy It ❑ter “..s. norm of which must oe respected, in't which, must be kept, as dearly is :)ossibie, :n balance. See North :'pion Lanai G; Vewell. 550 P.2d 178 ;;ran 19"til. In ittemot:ng to achieve this `)aiance me tral court must -ie mindful that in the me hand, the owner of the land nuniened, by in easement ha' a qualified rght to out his property 'o any lawful use for whicn .t may be adapted, including - farming, nut that .n exercising this right, must not unreasonably interfere with the superior right-of-way if :he person possess- ing the easement. Harding v. Pineilo, 518 P 'd 846 Colo.3op.1973) not selected for affictai publication) [5] Conversely, the owner of the ease- ment, or tominant estate, may do whatever Is reasonably necessary to permit full use and enjoyment of the easement including the exercise of rights of ingress and egress for maintenance. operation, and repair. The exercise of these appurtenant rights, however. may not expand the scope or ex- tent of the easement. Shrull v. Rapasardi, upra. [6] Applying these principles here, we conclude that this injunction absolutely pro- hibiting the placing of any object of any nature or description on, in, or across plain- tiff's ditch, is too broad; its terms are more restrictive than as required by the facts. [7] This is true as well with the second part of the trial court's injunction prohibit- ing defendants from permitting any irriga- tion sprinkler system to cross the plaintiffs ditch banks or access road. The landowner, here, has a qualified right to cross, and to take -equipment across plaintiff's ditch to reacn his property which lies on the other side. and to irrigate his land by sprinkling so long as he foes not unreasonably inhibit company's ability to traverse the access road, maintain the ditch. ;pray and burn weeds, and so long as he does not damage the ditch stricture. Harding v. Pineilo, supra. We agree with the trial court that Green's sprinkling operation, as conducted, violated company's rights. Nonetheless, the trial court's injunction must be modified to bring it into compliance with these legal principles. We therefore modify Paragraph 14 of the decree to read as follows: 14. The defendants and their heirs, suc- cessors and assigns he and are hereby enjoined and prohibited from committing any acts which shall unreasonably inter- fere with, or in any manner obstruct or prevent plaintiffs full use and enjoyment of its easement for the operation, and maintenance of its irrigation ditch, such as, but not limited to, making the access road muddy at times when company re- quires its use, damaging ditch banks, in- creasing ..veedgrowth or making spray- ing orburning more difficult. The appellants' other contention that Mrs. Green was not properly made a party is without merit. The judgment is modified as specified herein and as modified is affirmed. VAN CISE and KELLY, •JJ., concur. 951899 ,i d. 6 i BARNARD U. GAUMER 409 No. 19,164. R. .k. £.ARNA3D, ET AL D. W. B. GAUilMER, ET AL., AND CITY AND COUNTY OF DENVER. 3G t P. f 72.51 Decided May 8, 1951. lion for injunction and damages relating to use of neite road. Front the judgment and decree entered the intendants bring error. Affirmed in Part, Reversed in Part. .; SENIENT5---Vacure. An easement is a right conferred by grant x acciwredi by prescription authorizing one to do or maintain something on the land of another which, although a benefit to the !and of the former, may be a burden on the land of the atter. Rights —ascent —Title of Owner. The rights of one holding :in easement in !and of another are measured by the nature and purpose of the easement; it does not carry title to the land .ioon-which it is exercised and does not work a dispossession >f the landowner. Grantor;—R,gat to Use. The several grantors of easements for a private road which constitute the whole easement, to - .,ether with their assigns, licensees and invitees, have the right 3.o use such road in common with the grantee. + JUDGMENT—Default—Relies=Rules. Underr-Rule 54 (cr. P..C.P. (Into., the relief granted where a default judgment is entered shall not be different in kind from that prayed for in the demand for judgment. 5. EAsSaMENTs—Road—Upkeep. Absent any agreement on the main- tenance of a private way, the burden of upkeep should be distributed between dominant and servient tenements in -pro- portion to their relative use of the road as nearly as can be ascertained. MUNICIPAL CORPORATIONS --Proprietary P2tnctione—Liability. In 951899 orot reta:— I- t u t tu_ c: oaws' .: ;ovncted e -need t t t swt t he ;am, forms >i conduct as ribrs 'or the ?rvtte ntizen. o tae Di,trc ;,,;ur or Ct'er;onHCounty, on Came-- Z Stnith. .i udge. � . ARTHUR �I. MoRRa, for plaintiffs in error. IT: . DONALD E. L r L- s , Mr_ J iiiirs H. SNYDER. for de- ndent in error City and County of Denver. No appearance for defendants in tr error W. 3. Gaume and Burton S. Morwood. Fri Bane_ ?[R. d UsT'c3 1 RANTZ delivered the opinion of the Court: "HIs writ of concerned ^#g error s t.rc ea win two civil actions the trial court. that in which defendant in error or N. B G aurner was plaintiff. and plaintiff in error R A. Ban-t; nerd and others were defendants: the other in which de- fendant in error Burton S. Morwood was plaintiff, and plaintiffs in error were the defendants. The two actions were consolidated for trial and are presented here for review as one action. The only par- ties appearing here are plaintiffs in error R. A. Barnard and Lulu Barnard: and n . e City and County of Den- r,a ter. one of the defendants in error The objects of the first action were to obtain a deer--, in the trial court establishing as a public road a strip of land 40 feet in width extending 1.56 miles northwesterly from U. S. highway 40 in sections 9, 15 and 16, Township 4 South. Range 71 West of the 6th Principal Meridian, in the Genesee Park area of the Denver Mountain Parks System in Jefferson County; and to enjoin the defend- ants therein from "interfering with or obstructing said road or the use thereof." ieien!ar.s n ier ;dole--; Or r,oen ;fusions If Decree :Ions if aou :^e I':varc. tf Is 3Y separ- To amend t_ The rnocor, gas rraP ec and Conch:: 9 These Fir ;roVE7Sy is :onstr'icte 1928 The .vhere an a the fee t_tic '.evances th become ow - road passes inimical to part of .he belonging tt By its ;u,. the owners may use si road over G51899 e a :er :Turt- C .UCS T+. 3ar- oh le- rai d rear i pen- ecree 1p of ter v 7S l:1D n. in. 'arks end - said 1 2 ?r :ut::r ieterminat_on mat pub e'T:aer_c ._ n pose -issues r of ..e Dar.a:ie ;c Veer ; to .. ns :1.A Imiard inci Denver , mot!ed the ings inc Decree en -he imam .ssues ,. .. ): ..�. r er 4P, .ende .vhLe :e _atte: n and 3 Trrec eY Hindi 7' F'c7 Jana - "l59. tn-:. s:ons r_ ante t ay :he tr.a_ four. "hose Tad ,, . suostance. are that the road in con - a private and not oubiic road. .vhicn was _ asteacted 't,.; ''e-iefendant R. A. Barnard n :he year ., The ac :cum further found that -in ail instances -.v:xre .r. easement was granted "to the Barnaris! " ` the fee title remained in the owner and by mesne con- .veyances :he present landowners and their grantees have tecome owners of the fee :n the land aver which the road passes." A finding was also made that no title inimical to the r:gnts of Denver had been shown :o that car: of the road known as the `old blacktop' upon lands belonging to Denver. By its sudgment. the trial court ordered :hat `each of the owners of :ands over which an easement was granted may use said road and may permit others to use the road over their lands. but in so doing each such land 951899 j �. h, for a Its o. � Vner :_ inr: der -a d theonstain al err m -r) - _e - no l .erne a tii led a c: e „e_ ov Len '_.)r radm.t. cars. !a os : .vill alas aser:s )f eSe :Mee . ]Iles LlO nj :n )7 ler 3794. TLe firs oroo:e_m areser.e.-: s no- ; :i- eS ;,u o wee -ye ;n s:ier '' ,_ acute of :he >er* e.n We ?hire held :pat an casement :s a right oy on- "'lr.� Jr;r acquired or presc-_peen. authorizing me a do on r a Main something on'Inc rid if another o uc_ ) though. a sene :.o :he land of e former, may - l)e a a raen )n The :and of the latter_ L;e '4S 3zus ,) - eck_ � :4 Colo. 107. 1312 Pac. 2d 404. The rigiats )f one aoid- ing an easement in :he and of another a_e measured by :he nature and purpose of the easement. cn easemente .does not carry any title :o the land aver which it is exer- cised and the easement does not work a dispossession of :he landowner. 23 C.J.S., sec. 73, p. 751. The owner of the serpent estate continues to enjoy all the rights and benefits of proprietorship consistent with the burden of the easement. Going a step further, it is also the rule that the grantor of an easement, and his assign s, have a right of user in common with the grantee. There ;s nothing in :he record before us which 1.!N99 ph :ayes 9D) ac t.ec. us ,)) l i'.c raalta ona _LeuiinL-]=e Di Ccss:h:e - among :he resce' ant tenements. - r e vtew.v. 33esdes use by :he sever :curt bases for any agreement rate way-, the _e::veep doming their :matar 4. r 'tidy naant. _Le tan 'Tien: :nail :ini iert.an ei 3C _ __.-, he road -aortae:: a n ita taco .vino _ilea .- __ - f " cn _^.C_ ce n Decause aiscaat. ecu,:aofe + s c- u:ior if :he 'esocnszniiitt ntcn! :he :esoec:: e iw-nets of tine dominant and serm- tenements. could not be litigated in the cases tinder 5 3estcies oroof shouic. ae required of :he extent of ise ov the several tenements in order to afford :he :vial :curt Oases for assessing um een against them. Absent my iuzroemenc :he question of maintenance of a or:- :a.te va;. :he 'bur en of :tnkeep nouia be distributed iet—Azeen '_ominanc and serv_ent tenements in proportion `heir -e!at:c'e use of the toad, as nearly as such may 951899 14 .,e asc rained. 1 t i,na U. 3:v.:, 2 : 1216, !rcb rr- ) 1 i N.C.. -atta i 50l Vys, _G3 3 P l.' was ad, d ., rat;�-: - he parties r trial titat :he pr)t;er: • - &br", rsy :Las. is . ; ou n the. t pats, d �as at.d an i_uzo ?:trt )° been tar ral � a 'ar;�� Denverarea of Ji tarough t;4C':'7C9e for a publ:c :his area was upon accu;sit;on, dedicate: as a public park and s:nce -.hen ;,as bet: _public for park { 7 apart found that_d recreational :opal purpc, _ z ''K 3arna constructed e oed in controversy a n e across city -owned or e the knowledge or , onse t he city,.. prescriptive nor adverse �r ewc, : c the portion of h rights 'existed will.. ___. roe :c> the road icing or, city -owned arr,��< L43] This ruling was correct. although tair. the trial court soieiy on the basis you=_ xis lack of a factual foi hero was .rdat:on for :he establis ;ent :it tre- scriutive or adverse r:ghcs. We would o .:rases the trial :curt did in holding also that under ao ::r.::m- stances may the doctrines of prescriptive Ind adverse possession be applied against a municipality. MIindfui- that cities operate public parks :n a proprietary capacity, TNaliams v. Longmont, 109 Cot Denver u. °� 56'. 129 P � ud 0 Spenc Spencer, 34 Caio 270. 32 Pac. 590; and that in respect to proprietary functions, a municipality is gov- erned by the same rules and is held to the same norms of conduct that the law prescribes for the private citizen; Denver v. Publix Cab Co., 135 Colo. 132, 303 p (3d) 1016, we deem it inadvisable to go further than neces- sary in sustaining the trial court. The judgments are affirmed, except that portion with reference to upkeep and maintenance of the road in con- troversy which is reversed and remanded for further proceedings consistent with the views above expressed - '951 S99 PLAIN- Pendant iefecdan ciainciff America- BERGEN DITCH & RESERVOIR Cite as 683 Pfd 365 IColo.App. [51 Diminishment or disestablishment will not be lightly inferred. Congress must "clearly evince an 'intent to change bound- aries' before diminishment will be found." Solem, supra; Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 97 S.Ct. 1361, 51 L.Ed.2d 660 (1977). "When both an act and its legislative history fail to provide sub- stantial and compelling evidence of a con- gressional intention to diminish Indian lands, we are bound by our traditional soli- citude for the Indian tribes to rule that diminishment did not take place and that the old reservation boundaries survived the opening." Solem, supra,- .Halt: a Arnett, 412 U.S. 481, 93 S.Ct. 2245, 37 L.Ed.2d 91 (1973). (6, 71 Here, there is nothing in the con- gressional enactments pertaining to this reservation or in their legislative history which "evince an -intent to change bound- aries" of this reservation. Allotting reser- vation land to Indians or allowing convey- ances by allottee Indians to non -Indians, as here, does not disestablish land from the reservation. Seymour v. Superintendent, supra; Beardsley v. United States. 541 F.2d 705 (8th Cir.1976); Beardslee it Unit- ed States, 387 F.2d 280 (8th Cir.1967); United States ex rel. Condon it Erickson, 344 F.Supp. 777 (S.D.1972), affil 478 F.2d 684 (8th Cir.1973). And "Indian country" status survives even the opening of a reser- vation to sell and dispose off -surplus and unallotted lands for homestead settlement. Solem, supra' Beardsley (1976), supra; Erickson, supra. (81 We therefore conclude that the sub- ject property has never been disestablished from the Southern Ute Reservation. It is in "Indian country." The state, therefore, lacks jurisdiction to prosecute these Indian defendants. Because of our disposition of the jurisdic- tion issue, we do not -address Herrera's speedy trial contention. The judgments of conviction are reversed as to both defendants, and the cause is remanded for dismissal of the information. SMITH and KELLY, JJ., concur. CO. v. BARNES 9841 The BERGEN DITCH & RESERVOIR COMPANY, a Colorado corporation. Plaintiff -Appellant, v. Robert C. BARNES, sometimes referred to as Robert Charles Barnes. both indi- vidually and as a partner of Robert Charles Barnes & Co., and Shirley Eve- lyn Barnes & Co.. both partnerships. Shirley E. Barnes. sometimes referred to as Shirley Evelyn Barnes. both indi- vidually and as partners of Shirley Eve- lyn Barnes & Co., and Robert Charles Barnes & Co.. both partnerships, Rob- ert Charles Barnes & Co.. a partner- ship, Shirley Evelyn Barnes, a partner- ship, and Paul K. Kruse, Defendants - Appellees. No. 33CA0518. Colorado Court of Appeals, Div. I. May L0, 1984. Holder of easement for overflow and use of reservoir as part of take brought action for trespass and injunctive reiief against owner of portion of reservoir bed which was subject to the easement. The District Court, Jefferson County. Gaspar F. Perricone, J., awarded easement holder compensatory damages, but denied its re- quest for -injunctive relief, and easement -holder appealed. The Court of Appeals, Pierce, J., held that owner of portion of reservoir bed which was subject to ease- ment for overflow and use as part of lake held nonexclusive right to -use surface of the reservoir waters which overflowed owners property from time to time, where deed conveying the easement did not con- tain words of exclusivity or sole use in describing the use granted. Affirmed. 1. Property 7 He who owns surface of ground has exclusive right to everything which is above it. C.R.S. 41-L-107. 951899 13%., Rj'.: '')RRi'' r_.rsements i to "easement,, by fns nature..titnoue sit ct from Jwnersniu s an nterest nd See punlicatton Words and Phrases r miser judicial constructions Ind :fi notions. Easements .38..32 Jniess grant conveying an easement iectfically characterizes the easement as rxcusive," grantor of the easement re - lens right to use the property in common -with the grantee. • Waters and Water Courses t 153 owner of portion of reservoir bed shicn was subject to easement for sver- -. ow and use as part of lake held nonexciu- sve right to use surface of the reservoir -caters which overflowed owners property -tor time to time, where deed conveying -re-'asement did not contain words of ax- -.usivity or sole use in describing the use granted. C.R.S. 11-1-107. Grant. McHendrie. Haines & Crouse, P 0.. J. Albert Sebaid, Denver, for plaintiff- tnoeilant- No appearance for defendants-appeilees. PIERCE, Judge. in this action for trespass, the trial court twarded plaintiff, the Bergen Ditch and Reservoir Company (Bergen), compensato- ry damages, but denied its request for in- junctive relief. Bergen appeals that por- tion of the trial court's judgment which found that defendants, Robert C. Barnes, Robert C. Barnes 3c Co., Shirley E. Barnes, Shirley Evelyn Barnes & Co.. and Paul K. Kruse (Barnes), have a non-exclusive right to use a portion of the surface of a reser- voir for boating, water skiing, and other activities. We affirm. 3ergen constructed the Bergen No. '- Reservoir prior to 1900, and it remains the owner of the water stored there. The res- ervoir is filled from a natural stream by diversion works and ditches constructed by Bergen. . ,;coat - icon is the oa:,.... Brook. -e s g :he ,...-.. r. lints l wine. .,he rig_ :he lake in ;uric Lion if the r.aeC,o¢ ;r. ,. . by Brno KS. subject Bergen and Barnes entre reservoir Epic This appear arose :.i i..eer cons that Barnes 'iaa lmmlee by anauthorze'i se ,f :tie boating, water s<.. gt snorter .r--c_s. Bergen requester' nlunct;ve re!e:. :ufngen- satory ,damages, anu a ieterm,nacon w the trial -our. :hat 3arne_ had Tetnor rights. title, and interest -. - ,. Tie reservoir, nor any right )r prvt_ege se the reservoir, any portion thereof ir any waters therein. The trial court found 11 that Barnes - property :s overflowed with haters from :he reservoir :pursuant to :tie _392 -case- ment granted to Bergen by Brooks: -2) that waters from the reservoir lverfiow a maximum of `. . acre IC Barnes- property: and (3) that Barnes hold a non-exclusive right to use that portion If :he surface of reservoir waters which overflow into their property. The trial court further held that Bergen also holds a right reasonably to use the surface of the reservoir which over- flows Barnes' property. Bergen challenges the propriety of the trial court's judgment that Barnes holds a non-exclusive right to use the portion of the surface of the reservoir which over- flows Barnes' property. Bergen then as- serts the trial court should have concluded chat the 1892 easement granted Bergen the right to control the surface of the reservoir overflowing Barnes' property. We disa- gree. ill Bergen correctly states that Colora- do has recognized the common law doctrine i o FOP -Lexareite" 599 ':)K tom -eves. ee•ta for -ne foie t -c !I Bens _Ise _. easement ,_-_.o swity or :die is, - granted -o Berger. err wnen .t risen exclusive :^grit -.o reservoir waters property from am with its hooding th right co me the the reservoir wnicr eery. The judgment s BERLIN and - 383P 23— 0 9:. "F tr n LAFOND w. cite .0 M13 P 3d 387 :ace of the ^.ght to every- emonasis added) .)ii). '.37, 597 ?-'d '3.3. This rule ommon law exclu- tified by the 1392 '.r•,eKs wanted Bergen. ',toe ,n sooeai, therefore, Issement Is exclusive torture. Peopie u. Sm- w as nature. al - ,he r•m o nersnio, Is an inter- est, ,,, :r;n.irz P. Williamson. 35 Cr,, :; ' Si 69, ,1975). Unless the in easement specifical- 9. he easement as "exelu- sv wr if 'ne easement retains tht c ise -he property 'n common mintee. Barnard o. Gaurner, _stn, t5l ?id 773 11961); see :P197S0n, tine.. V. Fling, 155 ;9h ? Si 599 X1964) :easement BASHAM Coio.Ayy. 19841 aoectncai-Y set forth that it was for h., �,e lnc exciusive use .. "1. -'1 Because :he iced conveying the eaaen ect toes lot tontam words of exclu- ;l.;,tc ease ;se :n describing the use r-.ured� ,o Bergen. :he trial court did not -- vnen '.t ruiei :hat Barnes held a -non- .-_elusive right .o use the surface of the r"ser'olr waters which overflow Barnes' property from time to time in conjunction w::th is noiding that Bergen also holds the rtgnt to use the surface of the waters of the reservoir which overflow Barnes' property - Colo. 367 Rene E. LAFOND and Gloria J. LaFond, Plaintiffs -Appellees, v. Charles BASHAM, Defendant -Appellant. No. S1CA0908. Colorado Court of Appeals, Div. I. May 24. 1984. The ;udgment is affirmed. BERMAN anti METZGER. •JJ.. concur. sea P co — Homeowners brought action against corporate construction contractors and their president and his son, individually, for damages for breach of contract. The Dis- trict Court. Arapahoe County, M.O. Shiv- ers, Jr.. J.. entered judgment against corpo- rate contractors and president, individually, and president appealed. The Court of Ap- peals, Metzger, J, held that (1) pleadings gave president adequate notice of claim against him for personal liability based on equitable principles; (2) findings supported imposition of liability on president based on common-law theory; and (3) prejudgment interest was properly awarded. Affirmed. 1. Corporations x1.7(1) In homeowners' action against corpo- rate -remodeling contractors and their presi- dent, homeowners' allegations that adher- ence to separate existence of corporate de- fendants and individual defendant would sanction fraud or promote injustice against homeowners and that president -was "alter ego" of corporations provided sufficient facts and theories to put president on no- tice that homeowners sought to hold him personally liable based on equitable princi- ples for corporations' breach of contract Rules Civ.Proc., Rule 8. 2. Pleading 0=48. 395 Pleading in Coloradoo-need only serve notice of claim asserted, since substance of claim rather than appellation applied to pleading by litigant controls, and thus, if under facts, substantive law provides relief 951899 Hello