Lyon v. Jones

23CA2059 Lyon v Jones 11-20-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA2059
San Miguel County District Court No. 22CV30001
Honorable Keri A. Yoder, Judge

Lois Duncan Lyon,

Plaintiff-Appellee and Cross-Appellant,

v.

Cameron L. Jones, Leland M. Jones, and Tegan H. Jones,

Defendants-Appellants and Cross-Appellees.

JUDGMENT AFFIRMED IN PART AND REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS

Division VI
Opinion by JUDGE WELLING
Martinez* and Bernard*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 20, 2025

Anderson Notarianni McMahon LLC, Geoffrey P. Anderson, Joshua D.
McMahon, Denver, Colorado; Tueller Gibbs Dye, LLP, Douglas R. Tueller,
Andrew J. Gibbs, Telluride, Colorado, for Plaintiff-Appellee and Cross-Appellant

Goodspeed Merrill, Miro Kovacevic, Richard L. Merpi II, Robert S. Hunger,
Englewood, Colorado, for Defendants-Appellants and Cross-Appellees

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2025.
¶1 This appeal centers around an easement over property owned

by defendants Cameron L. Jones, Leland M. Jones, and Tegan H,

Jones (the Jones Defendants). The district court found that

plaintiff, Lois Duncan Lyon, had acquired an express and

prescriptive easement over land owned by the Jones Defendants

and defendants Placerville, LLC, and Christopher and Susan Stone.

The Jones Defendants appeal the district court’s finding that Lyon

acquired an easement, the district court’s findings as to the scope

of that easement, and its award of costs associated with the

litigation. Lyon cross-appeals the district court’s findings regarding

the easement and requests her costs on appeal. We affirm in part,

reverse in part, and remand to the district court for further

findings.

I. Background

¶2 When Lyon first brought this case, she split the easement she

asserted into five segments (Segments 1, 2, 3, 4, and 5), as shown

on the map below.

1
¶3 In this opinion, we will refer to portions of the easement by

these five segments.1 We detail the ownership of the properties

1 The Jones Defendants conceded during oral argument that they

aren’t challenging the district court’s order as it relates to Segments
1 and 2.

2
relevant to this appeal and how they relate to each easement

segment below.

A. Ownership of the Lyon Property and the Property Servient to
Segments 3, 4, and 5

¶4 Before 1971, William Edwin Jacobs owned both the property

that is currently owned by the Jones Defendants and the property

that is currently owned by Lyon. In 1971, Jacobs conveyed a

portion of his property to Michael and Mary Stranahan and

Kathleen Jones and, as part of the conveyance, created and

retained an easement (1971 Easement). Jacobs also retained a

portion of his property to the southwest of this parcel and leased

back the land he sold to the Stranahans and Kathleen Jones until

sometime in the mid-1970s.

¶5 In 1986, Jacobs conveyed the remainder of his property to his

children and their spouses with Barbara and Lance Earley owning

an undivided one-third interest, Joanne and Robert Showman

owning an undivided one-third interest, and Beverly Jacobs

(referred to in this opinion as Beverly Tennant), owning an

undivided one-third interest. Jacobs made the conveyance “subject

to easements or rights-of-way of record or as existing on or across

3
said property.” Approximately one year later, in 1987, Jacobs’s

children conveyed two-thirds of their property to the Stranahans

and Kathleen Jones but retained a forty-acre parcel to the

southwest. The 1987 deed to the Stranahans and Kathleen Jones

contained a provision granting Jacobs’s children an easement over

the conveyed land (1987 Easement). The Earleys and the

Showmans conveyed their remaining interest in the forty-acre

parcel to Beverly Tennant in 1987.

¶6 From what we can discern from the record, Kathleen Jones

granted her interest in the property to the Jones Trust in 1989 and

remained as a trustee of the trust along with Henson Jones

(referred to as Hans Jones in this opinion). Later, Kathleen and

Hans Jones, as trustees, conveyed the property in the trust to the

Jones Defendants. Many years later, the Stranahans interest in the

property was conveyed to the Leland Jones through a series of

transactions. Segments 3, 4, and 5 run across this property.

¶7 In late 1989, Beverly Tennant entered into an option contract

with Lyon for the forty-acre parcel. Three years later, Lyon

exercised her option and purchased the forty-acre parcel (the Lyon

Property).

4
B. Procedure

¶8 Lyon brought suit in 2022 to quiet title under C.R.C.P. 105(a).

Lyon named the Jones Defendants, the Stones, and Placerville as

defendants. In her complaint, Lyon alleged ten claims for relief.

First, she sought a declaratory judgment that she had acquired an

easement appurtenant over Segments 1 through 5 for residential

use, including “for vehicular access . . . and for utility lines” and

entitling her successors and assigns to such use. Second, she

requested the court find that she had an express easement over the

Jones Defendants’ property for ingress and egress to her property

for vehicular use and the placement of utility lines for residential

and other uses. Third, she asked the court to find that she

acquired an express easement over Segments 1 and 2 for vehicular

ingress and egress and for utility placement. Fourth, she sought a

declaration that she had acquired an easement by implication on

the road over the Jones Defendants’ property. Fifth, she requested

the court find that she had acquired an easement by prescription

over Segments 1 through 5. Sixth, she sought a permanent

injunction enjoining defendants or their successors form interfering

with her use of the road. Seventh, she asserted that the Jones

5
Defendants breached the implied covenant of good faith and fair

dealing. Eighth, she requested a permanent injunction enjoining

the Jones Defendants from interfering with her development permit

application for improvements to Segments 2 through 5. Ninth, she

sought a declaration as to the location of her deeded access rights.

And tenth, she requested that a provision in the 1971 Easement

allowing for termination of the easement be found void.

¶9 A few months after filing suit, Lyon filed a motion for partial

summary judgment for her claims of an express easement over

Segments 1 through 5. The Jones Defendants filed a cross-motion

for summary judgment requesting the court grant them partial

summary judgment on all claims except the prescriptive easement

claim. The district court granted Lyon’s motion for partial summary

in part, finding that she had an express easement over Segments 1,

3, and 4 and a portion of Segment 2. The court denied summary

judgment on the remaining issues, including whether the scope of

the easement included utilities.

¶ 10 The case then proceeded to trial on the remaining claims. At

trial, the district court permitted Lyon to present evidence that she

had acquired a prescriptive easement over Segments 1 through 5

6
even though it had entered summary judgment in favor of Lyon as

to an express easement over Segments 1, 3, 4, and 5 and a portion

of Segment 2.

¶ 11 Following the trial, the district court clarified that Lyon had a

prescriptive easement over Segments 1 and 2, found that Lyon had

a prescriptive easement over Segments 3 through 5, ordered

Segment 5 to be relocated, allowed the installation of utilities over

the entire length of the road, and granted injunctive relief enjoining

defendants from interfering with Lyon’s use of the road. The court

dismissed with prejudice Lyon’s easement by implication claim, the

breach of implied covenant of good faith and fair dealing claim, the

permanent injunction claim regarding Lyon’s development permit

application, and Lyon’s request that a termination provision in the

1971 Easement be declared void.

¶ 12 Lyon then submitted a bill of costs pursuant to C.R.C.P. 54(d),

requesting $100,141.92. The Jones Defendants objected arguing,

in part, that Lyon couldn’t recover $23,253.92 because they were

prelitigation costs. The district court disagreed and entered an

order against the Jones Defendants for $99,784.82.

7
II. Analysis

¶ 13 To succinctly analyze the issues presented by the Jones

Defendants in their appeal and by Lyon in her cross-appeal, we

address the issues in the following order. First, we address the

Jones Defendants’ contention that the district court erred by

finding that an express easement existed at Segments 3 and 4

through the 1971 and 1987 deeds, respectively. In our express

easement analysis, we also address Lyon’s contention that the

district court erred by declining to find that the 1971 termination

provision related to Segment 3 was void. Second, we address the

Jones Defendants’ contention that the district court erred by

making express and prescriptive easement findings related to

Segment 5. Third, we address the Jones Defendants’ contention

that the district court erred by awarding prelitigation costs to Lyon.

Fourth, we address the Jones Defendants’ remaining claims related

to the district court’s allowance of utility installation and its grant of

a permanent injunction. And fifth, we address Lyon’s request for

costs on appeal. Because we conclude that an express easement

existed, we decline to address Lyon’s contention that we should find

the district court’s alternate findings that a prescriptive easement

8
existed appropriate. We similarly decline to address the Jones

Defendants’ contention that the district court erred by making

express and prescriptive easement findings related to Segments 3

and 4.

A. Segments 3 and 4

¶ 14 We first address the Jones Defendants’ contention that the

district court erred by finding the existence of an express easement

at Segments 3 and 4.

1. Preservation

¶ 15 As an initial matter, Lyon contends that the Jones Defendants

failed to preserve their argument that the district court erred by

granting her motion for partial summary judgment. According to

Lyon, the Jones Defendants’ response to the motion for summary

judgment was deficient because they “asserted no contract law

argument, failed to admit or deny any facts, included no affidavit,

exhibit, or substantive legal argument” and, instead, “incorporated

another motion into their response, violating C.R.C.P. 121(c), § 1-

15(1)(d).” We disagree.

¶ 16 While some of the Jones Defendants’ legal arguments,

including their contract law argument, weren’t set forth in their

9
response to Lyon’s motion for partial summary judgment, they were

brought before the court in the cross-motion for partial summary

judgment, which the Jones Defendants incorporated into their

response to Lyon’s motion for partial summary judgment. Because

all relevant arguments were presented to the district court before it

made its ruling on the issue, these arguments are preserved for our

review. See In re Estate of Owens, 2017 COA 53, ¶ 21 (“Where an

issue was brought to the district court’s attention and the court

ruled on it, it is preserved for appellate review . . . .”).

2. Legal Principles

¶ 17 “An easement is a right conferred by grant, prescription or

necessity authorizing one to do or maintain something on the land

of another.” Kroesen v. Shenandoah Homeowners Ass’n, 2020 COA

31, ¶ 32 (quoting Lazy Dog Ranch v. Telluray Ranch Corp., 965 P.2d

1229, 1234 (Colo. 1998)). To create an express easement, the

servient estate owner, in compliance with the statute of frauds,

either makes a conveyance or enters into a contract intending to

create a servitude. Gold Hill Dev. Co., L.P. v. TSG Ski & Golf, LLC,

2015 COA 177, ¶ 47. A “reservation in a deed conveying the

servient or burdened property to another” may create an easement.

10
Id. at ¶ 48. “Words which clearly show the intention to give an

easement are adequate to demonstrate its creation, provided the

language in the instrument is sufficiently definite and certain in its

terms.” Id. (quoting Hornsilver Circle, Ltd. v. Trope, 904 P.2d 1353,

1356 (Colo. App. 1995)).

¶ 18 We review a district court’s interpretation of recorded

instruments de novo. Kroesen, ¶ 31. Similarly, we review a district

court’s grant of summary judgment de novo and apply the same

standard as the district court. S. Cross Ranches, LLC v. JBC Agric.

Mgmt., LLC, 2019 COA 58, ¶ 11. Summary judgment is only

appropriate “when no genuine issue of material fact exists and the

moving party is entitled to judgment as a matter of law.” Id. at

¶ 12.

3. The 1971 Easement

¶ 19 In the 1971 conveyance, Jacobs reserved an easement over the

Jones Defendants’ property “for ingress and egress for road

purposes and [l]ivestock drive[s].” The 1971 conveyance further

provided that the easement was “to be appurtenant to the said

property being retained by First Party and which easement shall be

extinguished after five or more years of nonuse by First Party.”

11
(Emphasis added.) While the deed itself doesn’t name the “First

Party,” the real estate contract provides that the “First Party” is

Jacobs.

¶ 20 The parties agree that an easement was created and that the

1971 easement dealt solely with Segment 3. The parties disagree,

however, as to whether the termination provision (five-year use

provision) — the italicized language above — was complied with.

¶ 21 The Jones Defendants contend (1) that the easement created

by the 1971 deed required Jacobs specifically to comply with the

five-year use provision to maintain the easement and (2) that

whether Jacobs complied with the five-year use provision is a

question of material fact that should have precluded the court from

granting summary judgment.

a. The 1971 Deed Created an Easement Appurtenant

¶ 22 The Jones Defendants dispute whether Jacobs himself had to

comply with the five-year use provision or whether his guests and

successors could prevent its termination through their use of the

property. Because it’s pertinent to our analysis of the five-year use

provision, we first determine what type of easement the 1971 deed

created.

12
¶ 23 A party can acquire either an easement in gross or an

easement appurtenant. Lobato v. Taylor, 71 P.3d 938, 945 (Colo.

2002). Easements in gross don’t “belong to an individual by virtue

of her ownership of land, but rather [are] a personal right to use

another’s property.” Id. Conversely, easements appurtenant “run[]

with the land” and are “meant to benefit the property, or an owner

by virtue of her property ownership.” Id. There is a presumption

that an easement is appurtenant, not in gross. Id.

¶ 24 Here, the 1971 deed contained explicit language stating that

“said easement [is] to be appurtenant to the said property being

retained by First Party.” This language shows that the intent of the

parties in reserving an easement in the 1971 deed was to benefit

the land retained by Jacobs, not just Jacobs personally. This

conclusion is bolstered by the presumption that an easement is

appurtenant. See id.

¶ 25 Accordingly, we agree with the district court that an easement

appurtenant over Segment 3 was created by the 1971 deed.

b. The Five-Year Use Provision

¶ 26 The Jones Defendants argue that, regardless of whether the

1971 Easement was appurtenant, the easement would still be

13
terminated if Jacobs himself didn’t comply with the five-year use

provision — that is if he ceased using the easement for five years.

We aren’t persuaded.

¶ 27 When easements are created by reservation, we determine the

extent of the easement by analyzing the conveyance instrument for

the parties’ intent. Gold Hill, ¶ 48. Here, the express language

stated that the parties intended to create an easement appurtenant

that would run with the land and benefit the land. There is also

evidence that the parties intended for the easement to terminate

upon nonuse of the easement.

¶ 28 The Jones Defendants rely on language in the 1971 Easement

stating that the “easement shall be extinguished after five or more

years of nonuse by First Party.” According to the Jones Defendants,

“First Party” refers to Jacobs himself and doesn’t include his guests,

successors, or assigns. From this, they argue that nonuse of the

easement by him for five or more years terminates the easement

and, it’s immaterial that his guests or his successors used the

easement even though the 1971 Easement is expressly

appurtenant. We disagree with the Jones Defendants’ narrow

reading of the term “First Party” in the conveyance document.

14
¶ 29 The easement reservation paragraph of the 1971 deed refers to

the “First Party” six times:

Subject to and excepting a private right of way
and easement across the above described real
property to properly being retained by First
Party, for ingress and egress for road purposes
and [l]ivestock drive, said easement to be
appurtenant to the said property being
retained by First Party and which easement
shall be extinguished after five or more years
of nonuse by First Party. The easement shall
be along the existing road, as used and now in
place, from the County Road to the land
reserved by the First Party; provided, however,
said easement for ingress and egress and
livestock drive may be relocated as to minor
changes so as not to interfere with First
[P]arty’s use thereof, but any major change in
said right of way or easement or major
relocation thereof shall be subject to approval
by written consent of First Party first had and
received.

(Emphasis added.)

¶ 30 Two of these references — the first and fifth — only make

sense if “First Party” is understood to include at least the guests

and invitees of Jacobs, as both refer to the use of the easement by

the “First Party” for ingress and egress and livestock drives,

activities that couldn’t be reasonably understood to be performed

only by Jacobs himself. The other four references to “First Party”

15
are ambiguous as to whether they could mean either Jacobs

personally, on the one hand, or Jacobs and his guest, successors,

and assigns, on the other hand. That is, when read in isolation, the

use of the term “First Party” could be read rationally with either

meaning.

¶ 31 But interpreting the third use of “First Party” to be limited to

Jacobs personally — and not also his successors or assigns —

would, as a practical matter, directly conflict with the express

provision that the easement is “appurtenant to the said property.”

After all, the defining characteristic of an “easement in gross” — the

antithesis of an appurtenant easement — is that it is “a mere

personal interest in, or right to use, the land of another.” WRWC,

LLC v. City of Arvada, 107 P.3d 1002, 1004 (Colo. App. 2004); see

also Sinclair Transp. Co. v. Sandberg, 2014 COA 76M, ¶ 35 (“At

common law in both England and the United States, ‘easements in

gross, having no dominant estate to which to be attached, were

considered personal to their holder and, as such, non-assignable.’”

(quoting Box L Corp. v. Teton County, 2004 WY 75, ¶ 12)).

Accordingly, the only interpretation of “First Party” that is

consistent with the easement being appurtenant is that “First

16
Party” includes Jacobs’ successors and assigns. See, e.g., Copper

Mountain, Inc. v. Indus. Sys., Inc., 208 P.3d 692, 700 n.14 (Colo.

2009) (“Faced with two readings of a contract, we choose the one

that harmonizes interrelated contract provisions.”); Bledsoe Land

Co. LLLP v. Forest Oil Corp., 277 P.3d 838, 846 (Colo. App. 2011) (“It

is paramount in contract interpretation that we read a contract’s

terms in harmony and give effect to all the contract’s provisions.”).

¶ 32 The Jones Defendants’ reliance on Brown v. McDavid, 676

P.2d 714 (Colo. App. 1983), doesn’t persuade us otherwise. In

Brown, a division of this court concluded that a covenant document

creating easements could be terminated even though the covenant

document provided that the covenants “run with the land.” Id. at

717-18. The covenant document in question had a clause that

allowed for termination with “the written consent of the owners of

sixty-six per cent . . . of the parcels.” Id. at 717. The division held

that when “the covenant document containing the termination

clauses in question[] was admittedly relied upon and accepted by all

parties, all parties knew the covenants could be terminated and this

knowledge became part of the basis of their bargain.” Id. at 718.

We agree with the Jones Defendants that under Brown, a

17
conveyance creating an easement appurtenant may also provide for

the termination such easement upon the occurrence of an agreed

upon event. Indeed, there is no dispute that the 1971 deed

contains such a provision — that is, it terminates upon the nonuse

of the easement for five years or more. Brown merely stands for the

proposition that such a provision is enforceable, even for an

appurtenant easement. But Brown doesn’t shed any light on the

question of whose nonuse triggers the easement’s termination.

And, as we discussed at length above, the only way to harmonize

the terms used in the 1971 deed is to interpret “First Party” to

include the successors, assigns, and guests of Jacobs.

¶ 33 Simply put, because the express intent of the parties was to

create an easement appurtenant that would benefit the land and its

future owners, we reject the contention that the five-year use

provision was specific to Jacobs himself. Rather we conclude that

the “First Party” referenced in the easement conveyance includes

not only Jacobs, but also Jacobs’s guests, successors, and assigns

such that use of the easement by Jacobs’s guest, successors, or

assigns constitutes continued use under the five-year use provision.

18
c. Evidence of Continuous Use

¶ 34 Because the five-year use provision wasn’t solely applicable to

Jacobs, the district court didn’t err by finding that it wasn’t

triggered. The district court relied on affidavits of continual use

from Lyon, as the current owner; previous owners; and guests of

the previous and current owners confirming their use of the road

starting in 1971. The district court accepted these affidavits of

continual use as true, citing section 38-35-107, C.R.S. 2025, which

states that

[a]ll recitals contained in deeds, powers of
attorney, agreements, or other instruments in
writing conveying, encumbering, or affecting
title to real property that have remained of
record in the office of the county clerk and
recorder of the county where the real property
affected is situated for a period of twenty years
shall be accepted and received as prima facie
evidence of the facts recited therein.

¶ 35 Because many of the continuous use affidavits described

encumbrances to property and because they were recorded more

than twenty years ago in the county where the property is located,

the district court was correct in accepting them as prima facia

evidence of the use recited by each affiant. See id. Lyon’s affidavits

were recorded many years later and therefore don’t fall under

19
section 38-35-107, but the district court was still entitled to accept

them as credible evidence of use. See Kincaid v. W. Operating Co.,

890 P.2d 249, 253 (Colo. App. 1994) (“Credibility of witnesses,

sufficiency, probative effect, and weight of the evidence, and

inferences and conclusions to be drawn from the evidence are all

within the province of the trial court as trier of fact”). Furthermore,

the Jones Defendants don’t point to evidence that the affidavits of

continuous use are incorrect or cite case law stating that the

district court erred in relying on them. Rather, the Jones

Defendants primarily rely on the fact that Jacobs himself didn’t use

the easement beyond 1983 and possibly not for five years prior.

Because, however, Jacobs’s guest, successors, and assigns could

comply with the five-year use provision, it’s immaterial whether

Jacobs personally used the easement continuously.

¶ 36 Thus, the district court didn’t err by concluding that an

express appurtenant easement existed and that the five-year use

provision hadn’t been triggered.

4. The 1987 Easement

¶ 37 In the 1987 conveyance, Jacobs’s children reserved an

easement over the Jones Defendants’ property by stating as follows:

20
Reserving, however, a private right of way and
easement across the above described real
property to the SW1/4 SE1/4 Section 10,
Township 42, Range 10, for ingress and egress
for road purposes and livestock drive, said
easement to be appurtenant to the SW1/4
SE1/4 Section 10, Township 42, Range 10.
The location of the private right of way and
easement shall be mutually agreed upon by
the parties and so located as to not unduly
burden the property conveyed to grantees.

¶ 38 The parties agree that the 1987 Easement dealt solely with

Segments 4 and 5. While the parties agree that Segment 5 was

included in the 1987 Easement, we address the district court’s

findings regarding Segment 5 infra Part II.B. In this section, we

address only the 1987 Easement as it relates to Segment 4.

¶ 39 The Jones Defendants contend (1) that the easement created

by the 1987 deed isn’t valid because it was an agreement to agree;

and (2) that, even if it was valid, the district court erroneously

granted summary judgment when an issue of material fact existed

that should have precluded the court from granting summary

judgment.

a. The 1987 Easement Wasn’t an Agreement to Agree

¶ 40 We first address the Jones Defendants’ contention that the

1987 Easement isn’t valid because it was an agreement to agree.

21
We conclude that the provision requiring the parties to “mutually

agree[]” upon the location of the easement doesn’t invalidate the

easement.

¶ 41 Conveying an easement through an instrument is “rooted in

contract law.” Ute Water Conservancy Dist. v. Fontanari, 2022 COA

125M, ¶ 35 (quoting McMahon v. Hines, 697 N.E.2d 1199, 1205 (Ill.

App. Ct. 1998)). When parties attempt to contract, there isn’t a

“binding contract if it appears that further negotiations are required

to work out important and essential terms.” DiFrancesco v. Particle

Interconnect Corp., 39 P.3d 1243, 1248 (Colo. App. 2001). And

“[a]greements to agree in the future are generally unenforceable

because the court cannot force parties to come to an agreement.”

Id.

¶ 42 While the parties in this case neglected to locate the 1987

Easement at the time of the conveyance, the provision allowing for

agreement in the future isn’t a traditional agree-to-agree situation

that would render the agreement void. Typically, in a situation

when parties have an agreement to agree, the entire agreement isn’t

binding, and the contract is found to be unenforceable. See id.

(holding that the settlement agreement between the parties wasn’t

22
binding when the “parties would have to agree to final written terms

before being bound”). But here, the easement itself, not the

location, was the consideration for the conveyance and was agreed

upon in the conveyance. And, if the location of the easement was

an essential term of conveyance, then the entire conveyance, not

just the easement provision, would be void because the parties

failed to agree.

¶ 43 Thus, the parties created a valid easement with an agreement

to determine the location of the easement following the conveyance

of the property.

b. The Jones Defendants Failed to Present a Disputed Issue of
Material Fact

¶ 44 The Jones Defendants also argue that, because the parties

never came to an agreement as to the location of the easement, the

easement didn’t exist, or alternatively, the location of the easement

was a question of material fact. Notwithstanding that the location

of the easement was never fixed by agreement of the parties, the

district court correctly found that the easement existed and that

there wasn’t a question of material fact as the location of the

easement at Segment 4.

23
¶ 45 While an instrument granting an easement need not use

particular words or talismanic language, it must identify “with

‘reasonable certainty’ the easement created and the dominant and

servient tenements.” Kroesen, ¶ 32 (quoting Hornsilver, 904 P.2d at

1356). But “lack of specific description does not affect the validity

of [an] easement[], particularly where the conduct of parties has

over a period of time located it.” Isenberg v. Woitchek, 356 P.2d

904, 907 (Colo. 1960).

¶ 46 The Jones Defendants take issue with the district court’s

summary judgment determination as to the location of the

easement. According to the Jones Defendants, there was an issue

of material fact as to the location of the easement that should have

precluded summary judgment. But the Jones Defendants don’t

point us to any evidence in the record showing an issue of material

fact. Indeed, the Jones Defendants state in their briefs that

evidence before the court showed that the parties never mutually

agreed and cite a note summarizing a conversation between Rexford

Lyon and Hans Jones in which Hans Jones acknowledges that he

hasn’t come to an agreement with Beverly Tennant about the

easement location but that an agreement is necessary. The Jones

24
Defendants argue that “this created a question of fact on whether

the parties had agreed on the easement’s location,” but instead, the

evidence shows that it’s undisputed that the parties never agreed

on a location, and therefore, there isn’t a disputed question of fact.

¶ 47 Because it’s undisputed that the parties never agreed on the

location of the easement, the district court properly used its

authority under Isenberg to determine the location of the easement

based on the undisputed evidence regarding the parties’ conduct.

We recognize that, in Isenberg, the parties hadn’t agreed that they

would mutually determine the location of the easement. But, given

that the gravamen of the Jones Defendants argument is the

nonexistence of the easement due to a failure to mutually agree,

once the district court rejected this contention it was proper for the

court to step in and determine the location by using the subsequent

conduct method in Isenberg. See Isenberg, 356 P.2d at 905, 907.

And because the facts the court relied on in doing so were

undisputed, it was proper for the court to do so on summary

judgment. Indeed, the evidence presented to the court on the

motion for summary judgment established that, subsequent to the

creation of the 1987 Easement, owners and guests of the Lyon

25
Parcel used the established road on Segment 4. We therefore

conclude that the district court didn’t err by granting summary

judgment as to the easement location at Segment 4.

B. Segment 5

¶ 48 The Jones Defendants next contend that the district court

erred by finding that Lyon acquired a prescriptive easement over

Segments 3 through 5. But because we affirm the district court’s

finding that Lyon possesses an express easement over Segments 3

and 4, supra Part II.A.3, II.A.4, we decline to address whether the

district court erred by finding that Lyon had acquired a prescriptive

easement over those segments, but we must address the court’s

decision to make both findings as it relates to Segment 5.

¶ 49 For both Segments 3 and 4, the district court found that an

express and prescriptive easement existed and, in both orders,

found that the location of the easement was the same regardless of

the easement type. While the district court similarly found that

Lyon acquired both an express and prescriptive easement for

Segment 5, the district court’s findings as to the location of each

easement are inconsistent. Specifically, in its order finding the

express easement, the district court found that the easement was

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located “over the Road that ha[d] existed for decades as depicted in

Exhibit[] 5.” In a footnote to this finding, the court acknowledged

Lyon’s proposal to move Segment 5 from this “historical location”

but then stated, “This Order grants her the right to the easement on

the old access road as depicted in Exhibit 5.” Exhibit 5 is a map of

a survey done by surveyor David Foley in 1989. As is relevant here,

Foley performed a second survey in 2021.

¶ 50 In contrast, in its order following trial, the district court found

that Lyon acquired a prescriptive easement over Segment 5 but

then stated that “[d]ue to the practical difficulties/ impossibility of

locating Segment 5 as described in Foley’s 1989 survey, the Court

will order it be located as described in Foley’s 2021 survey.”

¶ 51 By finding an express easement at Segment 5 based on Foley’s

1989 survey and a prescriptive easement at Segment 5 based on

Foley’s 2021 survey, the district court has, in essence, created two

different easements. We aren’t saying that the district court doesn’t

have authority to move an easement but rather that the district

court must make one consistent finding as to the location of

Segment 5, and, if the court does find that Segment 5 exists by

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express easement, it must follow existing case law to determine the

location of the easement.

¶ 52 Because of the district court’s inconsistent findings, we must

reverse the court’s ruling as to the existence and location of an

easement over Segment 5 and remand for further findings.

C. Prelitigation Costs

¶ 53 The Jones Defendants contend that the district court erred by

awarding “pre-litigation costs” to Lyon. Because district courts

have “considerable discretion” in awarding costs, we review this

contention for an abuse of discretion. Tisch v. Tisch, 2019 COA 41,

¶ 77 (quoting Valentine v. Mountain States Mut. Cas. Co., 252 P.3d

1182, 1187 (Colo. App. 2011)). We therefore disturb the award of

costs only if it’s “manifestly arbitrary, unreasonable, or unfair,”

Gallegos Fam. Props., LLC v. Colo. Groundwater Comm’n, 2017 CO

73, ¶ 37, or if the district court “misconstrues or misapplies the

law,” Rinker v. Colina-Lee, 2019 COA 45, ¶ 29. A district court’s

interpretation of a rule of civil procedure, however, is subject to de

novo review. Gallegos, ¶ 37.

¶ 54 Pursuant to C.R.C.P. 54(d), absent an express provision in

either statute or the Colorado Rules of Civil Procedure, “reasonable

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costs shall be allowed as of course to the prevailing party

considering any relevant factors which may include the needs and

complexity of the case and the amount in controversy.” For the

court to award a prevailing party costs, the costs must be

“reasonable” and “necessary for the development of the case.”

Gallegos, ¶ 41 (first quoting C.R.C.P. 54(d); and then quoting Cherry

Creek Sch. Dist. No. 5 v. Voelker, 859 P.2d 805, 812-14 (Colo.

1993)). Nowhere in C.R.C.P. 54(d), however, does it explicitly state

that prelitigation costs aren’t awardable to the prevailing party.

¶ 55 Before awarding prelitigation costs to Lyon, the district court

made specific findings that the prelitigation costs for documents

requested in “anticipation of litigation” were reasonable and

necessary because they were “required to support her claims.” And

that the preparation of applications for county approval was

reasonable and necessary because the court “relied heavily on the

[application documents] in rendering its ultimate decision.”

¶ 56 The Jones Defendants cite Tisch, ¶ 78, for the assertion that

costs may generally be awarded to the prevailing party when they

“are necessarily incurred by reason of the litigation and for the

proper preparation for trial.” Id. (quoting Mackall v. Jalisco Int’l,

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Inc., 28 P.3d 975, 977 (Colo. App. 2001)). But they don’t cite any

authority supporting the proposition that prelitigation costs aren’t

awardable to the prevailing party. Accordingly, the district court

didn’t per se err by awarding Lyon prelitigation costs. But because

we are remanding the case to the district court for further findings

on the Segment 5 easement type and location, the court must

reconsider its costs award on remand.

D. The Jones Defendants’ Remaining Claims

¶ 57 In their briefing, the Jones Defendants also contend that we

should reverse the district court’s judgment granting Lyon a

permanent injunction and a utility easement. The Jones

Defendants relegate these arguments to a footnote in their opening

brief, and the arguments they advance are conclusory at best. We

therefore decline to address this contention. See Prospect 34, LLC v.

Gunnison Cnty. Bd. of Cnty. Comm’rs, 2015 COA 160, ¶ 28 (“When

an appellant ‘makes [an] argument in a conclusory manner, and it

does not cite any authority supporting its position,’ we may ‘decline

to address it.’” (quoting S. Colo. Orthopaedic Clinic Sports Med. &

Arthritis Surgeons, P.C. v Weinstein, 2014 COA 171, ¶ 35)).

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E. Appellate Costs

¶ 58 Lyon asserts that the Jones Defendants’ appeal is frivolous

and request reasonable attorney fees and double costs pursuant to

section 13-17-102(2), C.R.S. 2025, and C.A.R. 38(b). We decline to

award Lyon attorney fees or costs under section 13-17-102 or

C.A.R. 38(b) because the Jones Defendants’ appeal isn’t groundless

or frivolous, as evidenced by our decision to partially reverse the

district court’s rulings. See In re Marriage of Martin, 2021 COA 101,

¶ 42.

III. Disposition

¶ 59 The judgment is affirmed in part and reversed in part, and the

case is remanded for proceedings consistent with this opinion. In

particular, on remand, the district court should determine whether

Lyon acquired an express or prescriptive easement as to Segment 5

and the location of the easement. Depending upon its findings as

to Segment 5, the district court should also determine whether it

must reconsider its award of costs.

JUSTICE MARTINEZ and JUDGE BERNARD concur.

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