L and M v. Proctor

25CA1087 L and M v Proctor 04-23-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 25CA1087
Delta County District Court No. 23CV30017
Honorable Mary E. Deganhart, Judge

L and M Fuller Family Partnership, LLLP, a Colorado limited liability limited
partnership, and L and M Fuller, LLC, a Colorado limited liability corporation,

Plaintiffs-Appellees,

and

Dakota Darnall,

Third Party Defendant-Appellee,

v.

Kathrine Sue Proctor, Acacia Ator, Orin Proctor, and Nadia Van Haele,

Defendants-Appellants.

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

Division VII
Opinion by JUDGE PAWAR
Johnson and Gomez, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced April 23, 2026

Brian Kidnay, P.C., Brian Kidnay, Montrose, Colorado, for Plaintiffs-Appellees
and Third Party Defendant-Appellee

Conerly & Callahan, LLC, Mindi L. Conerly Millican, Ryan F. Callahan,
Montrose, Colorado, for Defendants-Appellants
¶1 In this easement dispute, defendants, Kathrine Sue Proctor,

Acacia Ator, Orin Proctor, and Nadia Van Haele (collectively, the

Proctor parties), appeal the district court’s judgment granting a

prescriptive easement across their property to plaintiffs, L and M

Fuller Family Partnership, LLLP, and L and M Fuller, LLC

(collectively, the Fuller parties). We affirm in part, reverse in part,

and remand with directions.

I. Background

¶2 The Proctor and Fuller parties own real property near one

another. Part of the Fuller parties’ property (the Fuller property),

called the Upper Deeded, is separated from the Proctor parties’

property (the Proctor property) by Bureau of Land Management

(BLM) land. To the other side of the Upper Deeded is National

Forest Service (NFS) land, where the Fuller parties exercise federal

grazing permits. The Fuller parties also have rights in the Eagle

Ditch, which traverses the Proctor property and has a headgate on

the adjacent BLM land. This case concerns an easement across the

Proctor property, which the Fuller parties and their predecessors

have historically used to access the Upper Deeded and the NFS land

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beyond, as well as to access the headgate on the Eagle Ditch and to

maintain the Eagle Ditch.

¶3 In 2002, the Proctor parties executed a settlement agreement

with the Fuller parties’ predecessor in interest, Connie Green,

relocating the easement to its current location.1 The settlement

agreement also provided that the Proctor parties would install gates

along the easement at locations they deemed appropriate.

¶4 The Proctor parties also executed an easement deed,

quitclaiming the access easement to Green and her successors and

assigns. The parties dispute whether the access easement is an

easement appurtenant (that runs with the land) or an easement in

gross (that does not).

¶5 In 2022, the Proctor parties prohibited the Fuller parties from

further use of the access easement. The Fuller parties brought a

claim for adverse possession, seeking a prescriptive easement based

1 The parties and the district court refer to the easement differently

— as the Green Easement, the Access Easement, and the Current
Easement. Because the original location of the easement is not at
issue in this appeal, we refer to the easement in its current location
as “the access easement.” As discussed further below, we refer to
the additional prescriptive easement located along the Eagle Ditch
as “the ditch easement.”

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on their historical use of the access easement for hunting,

recreational, and agricultural purposes, as well as the ability to

access the headgate of the Eagle Ditch and conduct maintenance

on the ditch.

¶6 The Proctor parties brought counterclaims against the Fuller

parties for trespass and to quiet title pursuant to C.R.C.P. 105.2

¶7 The district court held a bench trial and received written

closing arguments. In a written order, it concluded that the Fuller

parties established a prescriptive easement across the Proctor

property for all historical uses (the access easement), including

exercising grazing permits on adjacent NFS land, hunting, and

operating motorized vehicles and equipment. For purposes of this

prescriptive easement, the court relied on the Fuller parties’ and

their predecessors’ use of the access easement from 2002 to 2022,

not the easement deed. The court further concluded that the Fuller

parties proved a prescriptive easement along the Eagle Ditch for

access to the headgate and maintenance of the ditch (the ditch

easement). Based on its conclusion that five gates the Proctor

2 The Proctor parties also brought trespass claims against a third-

party defendant who is not a party to this appeal.

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parties had installed along the ditch easement unreasonably

interfered with the Fuller parties’ rights, the court ordered the

Proctor parties to remove those gates.

¶8 The court denied the Proctor parties’ counterclaims.

¶9 The Proctor parties appeal, arguing that the district court

erred by imposing the ditch easement and ordering removal of the

five gates. They further challenge the court’s determinations that

the Fuller parties established the right to use the access easement

for grazing cattle on NFS land, hunting, and operating motorized

vehicles and equipment. We agree with the Proctor parties’ hunting

argument but disagree with their other arguments. We therefore

affirm in part, reverse in part, and remand for further proceedings.

II. Legal Principles and Standard of Review

¶ 10 A prescriptive easement is a right to use another’s land for a

specified purpose. LR Smith Invs., LLC v. Butler, 2014 COA 170,

¶ 14. It is established when the prescriptive use is (1) open or

notorious; (2) continued without effective interruption for at least

eighteen years; and (3) as relevant here, adverse. Lo Viento Blanco,

LLC v. Woodbridge Condo. Ass’n, 2021 CO 56, ¶ 20. A prescriptive

easement claimant that shows they have possessed the easement

4
for more than the statutory period is entitled to a presumption of

adverse use. Id. at ¶ 24. This presumption can be rebutted,

however, if the landowner shows that the claimant’s use was

permissive at any time during the statutory period. Id.

¶ 11 The scope or extent of an easement is determined based on the

use through which it was created. Wright v. Horse Creek Ranches,

697 P.2d 384, 388 (Colo.1985) (adopting Restatement (First) of

Prop. § 477 (A.L.I. 1944)). To ascertain whether a particular use is

permissible under a prescriptive easement, “a comparison must be

made between such use and the use by which the easement was

created with respect to (a) their physical character, (b) their

purpose, [and] (c) the relative burden” they cause on the property

burdened by the easement. Id. (quoting Restatement (First of Prop.

§ 478). While the beneficiary of a prescriptive easement is

permitted “to vary the use of the easement to a reasonable extent,”

this flexibility of use is limited by a concern for the degree to which

the variance increases the burden caused by the easement. Id. at

388-39; see also Lazy Dog Ranch v. Telluray Ranch Corp., 923 P.2d

313, 316 (Colo. App. 1996) (while an easement owner may do what

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is reasonably necessary to permit full use of the easement, they

cannot expand its extent).

¶ 12 The district court’s finding of a prescriptive easement presents

a mixed question of fact and law. See Lo Viento, ¶ 16. While we

review the court’s legal conclusions de novo, we review its factual

findings for clear error. Id. at ¶¶ 16-17. We defer to the court’s

decisions on the credibility of witnesses; sufficiency, probative

effect, and weight of the evidence; and inferences and conclusions

drawn from conflicting evidence. Weisiger v. Harbour, 62 P.3d

1069, 1071 (Colo. App. 2002). When the court bases its factual

findings on competent evidence in the record, we will not disturb

them. Lo Viento, ¶ 24.

III. Ditch Easement

¶ 13 The Proctor parties first argue that the court erred by

imposing the ditch easement because the Fuller parties’ access to

the Eagle Ditch was not adverse. They point to Kathrine Proctor’s

testimony that she permitted third-party water users to access the

Eagle Ditch and that she understood that water users are legally

authorized to access ditches. They further argue that they could

not have sustained a trespass claim against the Fuller parties based

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on use of the Eagle Ditch and the only reasonable explanation for

the Proctor parties’ installation of gates along the ditch was to

permit ditch users’ right of access. We are not persuaded.

¶ 14 As an initial matter, whether the Proctor parties would

succeed on a trespass claim based on the Fuller parties’ use of the

ditch easement is not dispositive of the issue of adverse use.

Instead, whether use is adverse is a factual question that requires

the court to evaluate witness credibility and weigh the evidence

before it.

¶ 15 The district court determined that the Proctor parties

presented no credible evidence to rebut the presumption of adverse

use. It found Kathrine Proctor’s testimony unreliable, noting that it

lacked detail, was made only in response to leading questions, and

was not substantiated by any other testimony. Regarding the gates,

the court noted that numerous witnesses testified they were used to

constrain cattle (not to provide or prohibit ditch access), and

because they were consistently left open or unlocked, they were

ineffective at serving this purpose. Because there is evidence in the

record to support the court’s determination that the Fuller parties

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established adverse use of the ditch easement, we may not disturb

it.

¶ 16 Next, the Proctor parties argue that the district court had no

procedural avenue to impose the ditch easement or to order gate

removal because the Fuller parties stipulated to seeking only one

prescriptive easement. We disagree.

¶ 17 True, the parties stipulated that the Fuller parties were “only

seeking a single prescriptive easement in the area of the [access

easement], and in no other location on the Proctor Property.” But

as discussed, the Fuller parties’ claim to the access easement was

based in part on their need to access the Eagle Ditch headgate and

conduct maintenance on the Eagle Ditch. The primary manager of

L and M Fuller, LLC’s operations testified that the five gates along

the Eagle Ditch made it significantly more difficult to maintain the

ditch and that the Fuller parties specifically asked the court to

order their removal. The Proctor parties also brought a

counterclaim to quiet title under C.R.C.P. 105, requesting that the

court order the Fuller parties “to cease damaging gates and fences

protecting the Proctor Property.”

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¶ 18 Thus, the issue of the Fuller parties’ right to move along the

Eagle Ditch, and whether the gates interfered with that right, was

plainly before the court. In fact, the Proctor parties’ counterclaim to

quiet title required the court “to provide a complete adjudication of

the rights of all parties” and to grant “full and adequate relief so as

to completely determine the controversy.” Argus Real Est., Inc. v. E-

470 Pub. Highway Auth., 109 P.3d 604, 612 (first quoting Hopkins

v. Bd. of Cnty. Comm’rs, 564 P.2d 415, 420 (Colo. 1977); and then

quoting C.R.C.P. 105(a)). This is the “manifest intent” of a quiet

title action under C.R.C.P. 105. Id. (quoting Hopkins, 564 P.2d at

420)); see also Hinojos v. Lohmann, 182 P.3d 692, 702 (Colo. App.

2008) (the court “should resolve all issues apparent from the

evidence” (citing Keith v. Kinney, 961 P.2d 516, 519 (Colo. App.

1997))).

¶ 19 The Proctor parties do not otherwise challenge the court’s

finding of a prescriptive easement along the Eagle Ditch or its

determination that the gates constituted an unreasonable

9
interference with the ditch easement. Accordingly, they are not

entitled to relief.3

IV. Access Easement

A. The Fuller Parties’ Exercise of NFS Grazing Permits

¶ 20 The Proctor parties next argue the district court erred by

determining that the Fuller parties could use the access easement

to graze cattle on NFS land located beyond the Upper Deeded. We

disagree.

¶ 21 The district court determined that the Fuller parties’ open,

continuous, and adverse use of the access easement included their

historical use to exercise grazing permits on adjacent government

property. The court further concluded that such use did not create

an additional burden on the access easement, noting that the Fuller

parties were not offering third parties the right to use it.

¶ 22 The Proctor parties do not challenge the court’s factual

determination that the Fuller parties and their predecessors

3 Because it is raised for the first time in their reply brief, we do not

consider the Proctor parties’ argument that the district court erred
because the Fuller parties failed to name the Eagle Ditch Company
as an indispensable party in their complaint. See S. Conejos Sch.
Dist. RE-10 v. Wold Architects Inc., 2023 COA 85, ¶ 34 n.4.

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historically used the access easement to exercise federal grazing

permits. Instead, they assert that the court erred as a matter of law

because it effectively created a separate property interest in the

Fuller parties’ grazing permits and established a prescriptive

easement to benefit the government. They further argue the court’s

ruling will allow the Fuller parties to overburden the access

easement by bringing more cattle over it, for longer stretches of

time, than they would have been entitled to otherwise.

¶ 23 To support their argument, the Proctor parties point to the

well-established principle that an easement holder may not use the

easement to benefit property other than the dominant estate. See

Lazy Dog Ranch v. Telluray Ranch Corp., 965 P.2d 1229, 1234 (Colo.

1998) (the property that benefits from an easement is generally

called the dominant estate). “This rule reflects the likely intent of

the parties by setting an outer limit on the potential increase in use

of the easement brought about by normal development of the

dominant estate.” Id. at 1238 (quoting Restatement (Third) of Prop.:

Servitudes § 4.11 cmt. b (A.L.I., Tentative Draft No. 4, 1994)); see

also Riddell v. Ewell, 929 P.2d 30, 32 (Colo. App. 1996) (citing the

same “general rule”). The Proctor parties further rely on out-of-

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state authority holding that the “expanded use” of an easement to

benefit another property constitutes an impermissible

overburdening of the easement as a matter of law. Il Giardino, LLC

v. Belle Haven Land Co., 757 A.2d 1103, 1113 (Conn. 2000).

¶ 24 But, as discussed, the Fuller parties’ use of the easement to

graze cattle on NFS land is not an expanded use. Nor does the use

benefit the NFS or any other owners of adjacent property. Instead,

the district court determined that the ability to move cattle into

grazing areas adjacent to the Upper Deeded was among the

historical benefits to the Fuller property afforded by the access

easement.4 The record again supports the court’s determination

that there is no increase or added burden to the Proctor property

resulting from the Fuller parties’ continuation of that historical use.

We therefore defer to it.5

4 For this reason, the Proctor parties’ concern that a subsequent

purchaser of the Fuller parties’ federal grazing permits, but not
their property, would be entitled to use the access easement is
misplaced.
5 The Proctor parties also suggest that the district court

overreached because the United States government was an
indispensable party not included in the action. Again, because this
argument was raised for the first time in their reply brief, we do not
address it. See S. Conejos Sch. Dist. RE-10, ¶ 34 n.4.

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B. Continuity of Hunting Use

¶ 25 The Proctor parties also assert that the district court failed to

properly determine whether the Fuller parties’ use of the access

easement for hunting was continuous and adverse. On this point,

we agree.

1. Additional Facts

¶ 26 When the Proctor parties quitclaimed the access easement to

Green, these parties agreed that it could “be used only for cattle

ranching and occasional recreational use,” not including “use by

hunters or for hunting related purposes.”

¶ 27 The Proctor parties submitted deposition testimony from

Steven Coury, one of the Fuller parties’ predecessors, into evidence.

Coury owned the Fuller property from 2006 to 2017. In his

deposition, Coury stated that he was “a stickler” for the easement

deed restrictions and that, while he hunted on the Upper Deeded,

he used another means of access (called Pipeline Road) to access

the Upper Deeded for that purpose. Coury specifically stated that

he did not use the access easement to access the Upper Deeded for

hunting purposes, and he prohibited his ranch hand, Fred

13
Ferganchick, from the same, communicating that all hunters had to

use Pipeline Road.

¶ 28 At trial, Ferganchick testified that he hunted on the Upper

Deeded and leased it out to commercial hunters. He testified that

he used Pipeline Road to get to the Upper Deeded for hunting

purposes but that it’s “almost impossible to take that in wintertime

and go anywhere on that road.” He also indicated that he did not

fully understand the easement deed restrictions.

¶ 29 In written closing arguments, the Proctor parties argued that

the Fuller parties could not establish a prescriptive easement in the

access easement for hunting because such use would be in direct

violation of the easement deed. Based on the easement deed, they

argued that any use of the access easement was “subordinated” or

inferior to the Proctor parties’ hunting restrictions. They further

argued that any use of the access easement for hunting “by rogue

ranch hands,” made without the easement holder’s approval, could

not establish continuous use.

¶ 30 The district court rejected the Proctor parties’ argument

because it was not supported by authority and because “[t]o require

that any evidence of adverse use must only be through the actual

14
owner of the property [wa]s not practical nor grounded in reality.”

The court noted that the Fuller parties’ predecessors were largely

“absentee owners,” and that their ranch managers and ranch hands

offered credible and compelling testimony regarding how the access

easement was used. It also rejected any suggestion by the Proctor

parties that these individuals’ testimony should be discredited

because they were “merely ranch hands.”

2. Discussion

¶ 31 At the outset, we reject the Proctor parties’ argument that the

principle of subordination defeats the Fuller parties’ prescriptive

easement claim. “At its core, subordination ‘is essentially a matter

of status between parties’ and ‘establishes priorities between those

parties by some means other than the automatic or statutory

scheme.’” City of Englewood v. Burlington Ditch, Reservoir & Land

Co., 235 P.3d 1061, 1068 (Colo. 2010) (citation omitted). The

Proctor parties base their subordination argument on the hunting

restrictions in the easement deed. But the district court concluded

the easement deed conveyed an easement in gross and therefore did

not run with the property. See Lewitz v. Porath Fam. Tr., 36 P.3d

120, 122 (Colo. App. 2001). The court based its finding of a

15
prescriptive easement on the uses that occurred after 2002,

unencumbered by the easement deed. The Proctor parties do not

develop an argument that the court erred in this regard, so we do

not consider it further. See Woodbridge Condo. Ass’n v. Lo Viento

Blanco, LLC, 2020 COA 34, ¶ 41 n.12 (we do not consider

undeveloped arguments), aff’d, 2021 CO 56.

¶ 32 As they did before the district court, the Proctor parties also

argue that the Fuller parties should not have been permitted to

count Ferganchick’s or other agents’ use of the access easement for

hunting because those uses were performed without permission

from the easement holder with whom the Fuller parties share

privity. The Proctor parties assert that the court misapprehended

their argument on this issue, believing it to be about how much

weight to give a ranch hand’s testimony as opposed to whether, as a

legal matter, the Fuller parties were entitled to count activities

performed by an unauthorized agent as part of historical use. We

agree that the district court did not address the argument before it.

¶ 33 The district court properly concluded that an easement holder

may rely on their predecessors’ agents to establish prior use. See

Restatement (Third) of Prop: Servitudes § 2.16 cmt. e (A.L.I. 2000)

16
(“Prescriptive uses need not be made personally by the owner of the

claimed prescriptive servitude, but may be made by tenants,

customers, guests, and visitors of the claimant.”). But the court did

not resolve the legal question of whether such reliance is

appropriate if the agents were acting outside the scope of their

employment or without the consent of the prior easement holders.

Reviewing this question de novo, we agree with the Proctor parties

that adverse use based on an agent’s use of an easement must be

within the terms of his agency with the easement holder. See id.

(“[U]se by strangers and members of the general public does not

qualify as prescriptive use to establish servitude rights in an

individual.”); see also Ammer v. Ariz. Water Co., 818 P.2d 190, 195

(Ariz. Ct. App. 1991) (to inure to the property owner’s benefit, a

tenant’s adverse use must be “within the terms of his tenancy”).

¶ 34 Importantly, however, the court also left unanswered the

factual questions of whether Ferganchick or other agents used the

access easement to hunt on the Upper Deeded, and whether they

did so with permission from Coury or any other easement holders.

Indeed, the court did not address Coury’s deposition testimony at

all. While Coury stated that he allowed Ferganchick to conduct

17
commercial hunting on the Upper Deeded, he was also unequivocal

that hunters accessed the Upper Deeded “[t]hrough the other way”

and that Ferganchick was not authorized to use the access

easement for hunting purposes. Whether the Fuller parties

established continuous adverse use of the access easement for

hunting purposes turns on the factual question of whether privity

existed between the Fuller parties and their predecessors’ agents.

We cannot resolve that factual question in the first instance. See

Kruse v. Town of Castle Rock, 192 P.3d 591, 601 (Colo. App. 2008)

(appellate courts are not the fact finder).

¶ 35 Because the district court did not address the legal question

before it, we conclude its finding of continuous adverse use for

hunting purposes was improper. We therefore reverse this portion

of the court’s judgment and remand for further factfinding. On

remand, the court should address the effect, if any, of Coury’s

deposition testimony and determine whether Ferganchick’s or other

agents’ use of the access easement for hunting purposes was

authorized by the easement holder.

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C. Use of Motorized Vehicles and Equipment

¶ 36 Finally, the Proctor parties argue that the district court erred

by including the use of motorized vehicles other than all-terrain

vehicles (ATVs) and heavy motorized equipment in the access

easement. We conclude reversal is not warranted.

¶ 37 The evidence at trial showed that the Fuller parties’

predecessor from 2002 to 2006, Mike Carver, crossed the access

easement only on foot, on horseback, and by ATV. By contrast,

subsequent property owners and their agents testified that they

brought trucks, trailers, bulldozers, backhoes, and a road grader

across the access easement. In their written closing arguments, the

parties disputed whether the Fuller parties’ historical use of the

access easement included the use of non-ATV vehicles and

motorized equipment. Recognizing Carver’s testimony, the district

court concluded it did.

¶ 38 The Proctor parties argue the court erred because it failed to

place a restriction on the Fuller parties’ use of the access easement

despite finding that Carver’s use was limited to ATVs. They argue

the court was required to compare the character, purpose, and

burden of the different motorized uses and balance them against

19
the access easement’s original purpose. The Fuller parties, in turn,

argue that they established a general access easement serving their

property, and this necessarily includes access by different methods

as may be appropriate for different uses. The Fuller parties further

assert that the difference between ATVs and other motorized

vehicles and equipment is one of degree, not kind, and therefore all

these uses fall within the prescriptive easement.

¶ 39 Initially, we agree with the Fuller parties that the difference

between using ATVs to cross the access easement and using trucks,

backhoes, and other equipment to do the same is a difference in

degree, not kind. See Clinger v. Hartshorn, 89 P.3d 462, 467 (Colo.

App. 2003) (differences in degree include an increase in the number

of people, volume of traffic, or number of electrical conductors using

an easement). Even so, the question remains whether this change

unreasonably burdens the access easement. See Cielo Vista Ranch

I, LLC v. Alire, 2018 COA 160, ¶¶ 124-125 (changes in degree favor

a finding that the current use is within the easement’s scope, but

an increased burden cannot be unreasonable). In this regard, we

disagree with the Fuller parties’ argument that access is access,

whatever the means. Cf. Clinger, 89 P.3d at 467 (considering

20
whether a change in the degree of use was so substantial as to

require limiting the easement’s extent).

¶ 40 To be sure, the district court did not make explicit findings on

the physical character, purpose, or relative burden of ATVs versus

non-ATVs, nor did it expressly state a legal conclusion that the

change that occurred after 2006 was reasonable. Nevertheless, the

court determined that the Fuller parties established historical use

of the access easement to conduct agricultural and ranching

activities on the Upper Deeded and to access and maintain the

Eagle Ditch. And it included motor vehicles in the access

easement’s scope, notwithstanding Carver’s testimony. On this

basis, we conclude the district court made a determination, albeit

implicit, that the change in use from ATVs to other motorized

vehicles and equipment was reasonable and not unduly

burdensome. See Foster v. Phillips, 6 P.3d 791, 796 (Colo. App.

1999) (a court’s findings may be implicit, so long as they are

sufficient for appellate review). On appeal, the Proctor parties argue

that the court did not apply the correct legal standard. But they

make no meaningful attempt to argue that the use of non-ATV

motorized vehicles and equipment is outside the access easement’s

21
scope. They point to Carver’s testimony that he believed

introducing non-ATV vehicles and other motorized equipment would

“tear up” the access easement. But Carver’s personal belief does

not establish that the subsequent change in use was in fact

unreasonable. The Proctor parties also argue that the Fuller

parties’ use of the access easement creates a “heightened burden on

the soft, dirt trial [that] threatens [the Proctor parties’] ability to also

access along this travelled way and increases wear and tear.” But

they do not explain how their use of the access easement is

impeded or why additional wear and tear constitutes an

unreasonable interference.

¶ 41 An easement holder may make any use of an easement that is

reasonably necessary to permit its full use without unreasonably

interfering with the property owner’s enjoyment of their property.

See Amada Fam. Ltd. P’ship v. Pomeroy, 2021 COA 73, ¶ 67.

Because the Proctor parties have not shown that the Fuller parties’

use of the access easement constitutes an unreasonable

interference with their property rights, we conclude they are not

entitled to relief.

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V. Attorney Fees

¶ 42 The successful portion of the Proctor parties’ appeal cannot be

characterized as frivolous, and their remaining arguments present a

coherent assertion of error, even if they are unsuccessful. We

therefore decline the Fuller parties’ request for an award of attorney

fees.

VI. Disposition

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

case is remanded for further proceedings consistent with this

opinion.

JUDGE JOHNSON and JUDGE GOMEZ concur.

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