Brinkerhoff v. Thurber

23CA0894 Brinkerhoff v Thurber 08-07-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0894
Douglas County District Court No. 16CV30253
Honorable Andrew C. Baum, Judge

William Brinkerhoff and Renee Brinkerhoff,

Plaintiffs-Appellees and Cross-Appellants,

v.

Mark Thurber and Robyne Thurber,

Defendants-Appellants and Cross-Appellees,

v.

Jefferson Park Development, LLC,

Third-Party Defendant-Appellee.

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

Division B
Opinion by JUDGE GOMEZ
Fox and Lum, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced August 7, 2025

Eason Law, LLC, David R. Eason, Boulder, Colorado, for Plaintiffs-Appellees
and Cross-Appellants

Anne Whalen Gill, LLC, Anne Whalen Gill, Castle Rock, Colorado; Hassan +
Cables, LLC, Stewart D. Cables, John L. Skari, Jr., Boulder, Colorado, for
Defendants-Appellants and Cross-Appellees
Dill Dill Carr Stonbraker & Hutchings, PC, Patrick D. Tooley, Denver, Colorado,
for Third-Party Defendant-Appellee
¶1 Defendants, Mark and Robyne Thurber, appeal the trial

court’s judgment resolving their various easement disputes with

their neighbors, plaintiffs William and Renee Brinkerhoff and third-

party defendant Jefferson Park Development, LLC (JPD). The

Brinkerhoffs cross-appeal. We affirm in part and reverse in part

and remand the case to the trial court for further proceedings.

I. Background

¶2 The Brinkerhoffs and the Thurbers own adjacent parcels of

property in a rural part of Douglas County. The following map

shows the relevant properties and owners as of the end of 2019:

Map of the Parties’ Property Boundaries as of 2019

1
¶3 Since the Brinkerhoffs purchased their initial parcel in 1994,

they have used an easement that passes over the Thurbers’ land,

known as the Main Drive Easement, as a driveway to access their

property from the public road.

¶4 Between 2004 to 2008, when the Brinkerhoffs were largely

absent, the Thurbers constructed three gates along the Main Drive.

Upon the Brinkerhoffs’ return, the parties began to dispute the

Brinkerhoffs’ use and maintenance of the drive. The Brinkerhoffs

conducted constant maintenance on the drive, like grading, road

base additions, snow removal, and weed control. And, according to

the Thurbers, they drove up and down the drive multiple times a

day, sometimes at excessive speeds, and frequently left the gates

open. The parties also disputed other claimed easements.

¶5 In 2011, litigation began.

¶6 In 2014, the parties reached a settlement agreement in the

hopes of putting their disputes to rest. Under that agreement, the

Brinkerhoffs would abandon the Main Drive Easement in favor of a

new easement, called the Northern Drive Easement, which would

pass through a different part of the Thurbers’ property, as well as

through part of a neighboring parcel owned by Craig and Mary

2
Ewing.1 (The existing Main Drive also went through a part of the

Ewings’ parcel.)

¶7 Because the Northern Drive Easement was to pass over their

land, the Ewings’ cooperation was a necessary condition to

effectuate the settlement agreement. But upon their divorce in

October 2015, the Ewings partitioned their property into three

parcels. Mr. Ewing kept the northern parcel; Ms. Ewing kept the

southern parcel, which was burdened by the Main Drive Easement;

and the Ewings put the middle parcel, where the Northern Drive

Easement was proposed to be, up for sale. Eventually, in August of

2017, the Ewings sold the middle parcel to JPD, a limited liability

company wholly owned by the Brinkerhoffs. A couple years later,

Ms. Ewing sold the southern parcel to the Thurbers. The divorce

and the eventual sale of the middle parcel called into question the

ongoing necessity of the Ewings’ cooperation and the overall

viability of the settlement agreement.

¶8 In the meantime, in 2016, the Brinkerhoffs filed the

underlying case seeking a declaratory judgment that the settlement

1 The Ewings’ property was in fact owned by the couple’s retirement

accounts. But for simplicity’s sake, we refer to them as the owners.

3
agreement was no longer viable or enforceable. The Thurbers

responded with various counterclaims.

¶9 In 2017, the trial court held a bench trial on the initial issue of

the viability of the settlement agreement. The court entered an

order in 2018 finding that the settlement agreement was

salvageable and that the condition requiring the Ewings’

cooperation was moot due to JPD’s purchase of the middle parcel.

¶ 10 The Thurbers later filed third-party claims against JPD. JPD,

in turn, filed a counterclaim against the Thurbers.

¶ 11 In 2022, the trial court conducted a second trial on the

various issues underlying the parties’ claims. As pertinent here, in

its post-trial order, the court resolved those issues as follows:

• The Settlement Agreement and Northern Drive Easement.

Based on new evidence, the settlement agreement in fact

had failed on its own and was no longer viable. And the

Northern Drive Easement was never created. Thus, the

Brinkerhoffs were not in breach of the settlement

agreement, and JPD’s property (the former middle Ewing

parcel) wasn’t burdened by the Northern Drive Easement.

4
• The Pasture Easement. The Brinkerhoffs have no interest

in this claimed easement over the Thurbers’ property.

• Maintenance of the Main Drive. The Brinkerhoffs and the

Thurbers were to retain an expert or a panel of three

experts (with the Brinkerhoffs and Thurbers each

choosing an expert and those two experts choosing a

third to serve either alone or with the other two) to

provide a “binding recommendation” regarding future

maintenance of the Main Drive.

• Width of the Main Drive. The Main Drive cannot exceed

sixteen feet in width, with two-foot shoulders on each

side.

• Gates and cattle guards on the Main Drive. The Thurbers

may maintain the gates and cattle guards currently in

place, subject to certain specified limitations.

• The Thurbers’ trespass and outrageous conduct claims.

The Thurbers didn’t prove these claims, except as to one

trespass that likely occurred when the Brinkerhoffs drove

a car over a claimed easement they had no interest in, for

which the Thurbers would receive nominal damages of

5
$1. To the extent that the Thurbers proved excessive

maintenance of the Main Drive, the court had already

addressed it.

• Relocation and forfeiture of the Main Drive Easement. The

Brinkerhoffs were not required to relocate the easement

and hadn’t so abused the easement as to warrant

forfeiture of their rights to it.

¶ 12 After the court issued its post-trial order, the parties

appointed three experts to resolve the ongoing maintenance issues

on the Main Drive, as directed by the order. Those experts issued

an opinion, which the parties filed with the court, and the court

confirmed it, finding that the appointment and the report “followed

the process ordered by the [c]ourt.” The court noted only that “[i]f

an opinion or recommendation of the experts conflicts with the

terms and limitations of [the court’s post-trial order], the terms and

limitations of the [o]rder shall prevail.”

¶ 13 The Brinkerhoffs and the Thurbers both appeal various

aspects of the court’s post-trial order.

6
II. Standard of Review

¶ 14 We review a judgment following a bench trial as a mixed

question of law and fact. Premier Members Fed. Credit Union v.

Block, 2013 COA 128, ¶ 27. We review the trial court’s legal

conclusions de novo, but we defer to the court’s factual findings

unless they are clearly erroneous, meaning they have no support in

the record. Id.; see also Gravina Siding & Windows Co. v. Gravina,

2022 COA 50, ¶ 14. When the evidence on a factual question is

conflicting, we “may not substitute [our] conclusions for those of the

trial court merely because there may be credible evidence

supporting a different result.” Lawry v. Palm, 192 P.3d 550, 558

(Colo. App. 2008).

III. Analysis

¶ 15 We first address the Thurbers’ arguments and then the

Brinkerhoffs’ arguments.2

2 To the extent that the Thurbers or the Brinkerhoffs raise any

additional arguments other than those addressed in this opinion,
we decline to consider the arguments as insufficiently developed in
the briefs. See Doe 1 v. Colo. Dep’t of Pub. Health & Env’t, 2018
COA 106, ¶ 60, aff’d, 2019 CO 92.

7
A. The Thurbers’ Arguments

¶ 16 The Thurbers first contend, based on several theories, that the

trial court erred in concluding that the Northern Drive Easement

hadn’t replaced the Main Drive Easement. They also contend that

the trial court impermissibly delegated judicial authority regarding

maintenance of the Main Drive. Finally, they contend that the trial

court erred by denying their trespass and nuisance claims. We

address each of their contentions in turn.

1. Grounds for Establishing the Northern Drive
Easement in Place of the Main Drive Easement

¶ 17 The Thurbers contend that the trial court should’ve concluded

that the Northern Drive Easement had replaced the Main Drive

Easement for five reasons: (1) the Brinkerhoffs breached the

settlement agreement, (2) the Ewings validly granted the Northern

Drive Easement to the Brinkerhoffs through a writing they executed

in 2014, (3) the Northern Drive Easement should be created as an

easement by estoppel, (4) judicial estoppel should prevent the

Brinkerhoffs and JPD from taking the position that their properties

aren’t burdened by the Northern Drive Easement, and (5) the Main

Drive Easement should be relocated to the location of the Northern

8
Drive or forfeited. We first provide some additional background and

then address each of these contentions in turn.

a. Additional Background

¶ 18 The settlement agreement expressly provided that the

Thurbers’ and Brinkerhoffs’ performance under the agreement was

“contingent and conditioned upon completion of each and all of”

seven conditions. It further provided the following:

The Thurbers and Brinkerhoffs understand
and agree that it may not be possible to satisfy
one or more of the contingencies/conditions
required . . . , and in the event all and each of
those contingencies/conditions are not met,
for whatever reason, the terms of this
Agreement to which [the] Thurbers and
Brinkerhoffs have agreed may not be viable.
Neither the Brinkerhoffs nor the Thurbers
shall be bound to any of the terms or
provisions set forth [in the agreement] unless
and until all of the contingencies and
conditions . . . are satisfied in full or are
otherwise obtained in a manner satisfactory to
both [the] Thurbers and [the] Brinkerhoffs.
However, the Thurbers and the Brinkerhoffs
shall be bound to employ their best efforts in
obtaining the satisfaction or assurance of such
assumptions and conditions.

One of the required conditions was “[t]he Ewings’ cooperation in

granting the Northern [Drive] Easement crossing their property.”

9
¶ 19 Although it wasn’t required by the settlement agreement,

Mr. Ewing insisted that the documents creating the Northern Drive

Easement and those abandoning the Main Drive Easement be

executed simultaneously. The Ewings formalized a document to

create the Northern Drive Easement in late 2014 (the Ewing

Easement Grant). The parties also prepared documents for the

abandonment of the Main Drive Easement. But the Ewing

Easement Grant was never delivered, the abandonment documents

were never executed, and the Northern Drive was never

constructed.

¶ 20 In mid-2020, after being joined as a party to this case, JPD

served Ms. Ewing with a subpoena to produce documents. Among

the responsive documents Ms. Ewing produced were some emails

she received from Ms. Thurber and from the Thurbers’ attorney in

February 2016, before JPD purchased the middle Ewing parcel in

August 2017. The emails indicated that Ms. Thurber and the

Thurbers’ attorney understood as early as February 2016 that

Mr. Ewing believed the deal was “dead” and no longer planned to

cooperate in creating the Northern Drive Easement. Those emails

10
had not previously been produced — at least, not in unredacted

form — in the lawsuit.

¶ 21 After the revelation of these emails and the presentation of

further evidence, the trial court reversed course on its initial

conclusion regarding the viability of the settlement agreement. In

its post-trial order after the 2022 trial, it stated that, while

“determining the exact date [was] non-productive[,] [t]he totality of

the circumstances” established that the settlement agreement had

failed before JPD purchased the middle parcel.

b. Breach of the Settlement Agreement

¶ 22 The Thurbers first argue that the trial court erred in finding

that the Brinkerhoffs hadn’t breached the settlement agreement by

preventing the occurrence of a condition precedent. We disagree.

¶ 23 “A condition precedent is ‘[a]n act or event, other than a lapse

of time, that must exist or occur before a duty to perform something

promised arises.’” Soicher v. State Farm Mut. Auto. Ins. Co., 2015

COA 46, ¶ 22 (alteration in original) (quoting Black’s Law Dictionary

355 (10th ed. 2014)). Conditions precedent are disfavored and thus

are given effect only if they are established by clear and unequivocal

11
language. Dinnerware Plus Holdings, Inc. v. Silverthorne Factory

Stores, LLC, 128 P.3d 245, 247 (Colo. App. 2004).

¶ 24 Under the prevention doctrine, a condition may be waived or

excused if a promisor prevents or hinders the fulfillment of a

condition to their performance. New Design Constr. Co., Inc. v.

Hamon Contractors, Inc., 215 P.3d 1172, 1184 (Colo. App. 2008).

¶ 25 The Thurbers contend that the Brinkerhoffs prevented the

Ewings’ cooperation from occurring by (1) failing to execute an

abandonment document for the Main Drive Easement in 2014, after

the Ewings had executed the Ewing Easement Grant, and

(2) “killing” the deal by expressing a belief in October 2015 that the

settlement agreement had already failed.

¶ 26 The trial court found, however, that the Brinkerhoffs hadn’t

prevented the Ewings’ cooperation. Instead, the court found that

the settlement agreement had failed on its own at some point before

JPD purchased the middle Ewing parcel. This finding is supported

by the record.

¶ 27 The court reasoned, in part, “The Brinkerhoffs could not be

expected to give up their access via the Main Drive without having

the Northern Drive in place and available to them, or even during

12
an extended period of construction.” The court also relied largely

on the Thurbers’ concealment of Mr. Ewing’s declaration in

February 2016 that the deal was dead.

¶ 28 While the Thurbers cite evidence and arguments supporting

their view that the Brinkerhoffs effectively killed the deal before

February 2016, the trial court had ample evidence before it

suggesting that the Brinkerhoffs didn’t prevent or hinder the

Ewings’ cooperation and that Mr. Ewing had already decided in

mid-2015 not to move forward with the deal. For instance, the

court heard evidence that the Brinkerhoffs took substantial steps

early on toward completing the deal, including retaining attorneys

to draft documents creating the Northern Drive Easement and

abandoning the Main Drive Easement, repeatedly sending drafts to

the Thurbers’ attorney, and eventually receiving a new draft back

from the Thurbers’ attorney in a form that was unacceptable to

them. The court also heard evidence that Mr. Ewing told

Mr. Brinkerhoff sometime shortly after he filed for divorce in May

2015 that he no longer planned to go through with the deal due to

his pending divorce and property division.

13
¶ 29 As the trial court recognized, the proposed property division in

the Ewings’ divorce proceedings would eventually leave Ms. Ewing

with the part of the property that was burdened by the existing

Main Drive Easement and would have the couple sell the part of the

property that would be burdened by the planned Northern Drive

Easement, thus reducing its value. Consequently, as the divorce

proceedings progressed, Mr. Ewing had no incentive to move

forward with the deal to replace the Main Drive Easement with the

Northern Drive Easement.

¶ 30 Accordingly, we discern no clear error in the trial court’s

finding and decline to disturb it. See Premier Members, ¶ 27;

Lawry, 192 P.3d at 558.

c. Ewing Easement Grant

¶ 31 Next, the Thurbers argue that the trial court erred by

determining that the Ewing Easement Grant was ineffective to grant

the Northern Drive Easement to the Brinkerhoffs. We disagree.

¶ 32 The trial court cited two reasons for concluding that the Ewing

Easement Grant was ineffective: (1) it didn’t comply with the statute

of frauds and (2) it wasn’t delivered to the Brinkerhoffs. The

Thurbers challenge both stated reasons.

14
¶ 33 We agree with the Thurbers that the trial court’s reliance on

the statute of frauds was erroneous. It is true that, under the

statute of frauds, contracts creating easements generally “must be

in writing,” Schreck v. T & C Sanderson Farms, Inc., 37 P.3d 510,

513 (Colo. App. 2001); “must contain the names of the parties, the

terms and conditions, a description of the interest or property, and

the consideration,” id.; and must be “subscribed by the party”

granting the easement, § 38-10-108, C.R.S. 2024. See also Lobato

v. Taylor, 71 P.3d 938, 950 (Colo. 2002) (easements are subject to

the statute of frauds). But the Ewing Easement Grant does just

this: it is a writing; it contains the parties’ names, the terms and

conditions, a description of the interest, and the consideration; and

it bears the signatures of the grantors (the Ewings).

¶ 34 However, we reject the Thurbers’ challenge to the trial court’s

reliance on the failure of delivery.

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

necessity authorizing someone to do or maintain something on

someone else’s land although it may burden that land. Lazy Dog

Ranch v. Telluray Ranch Corp., 965 P.2d 1229, 1234 (Colo. 1998).

At issue here is a claimed easement by grant.

15
¶ 36 For a grant of an interest in land to be effective, the

instrument creating the grant must be delivered to and accepted by

the grantee — here, the Brinkerhoffs. See Tuttle v. Burrows, 852

P.2d 1314, 1316 (Colo. App. 1992). “Delivery requires proof that

the grantor parted with possession and control or any power over

the deed, for the benefit of [the] grantee, and that [the grantor]

intended to do so presently and unconditionally.” Sims v. Sperry,

835 P.2d 565, 568 (Colo. App. 1992) (emphasis omitted).

¶ 37 The trial court’s finding that the Ewing Easement Grant was

never delivered to the Brinkerhoffs is not clearly erroneous, as it is

supported by the record. Indeed, the Thurbers don’t point to any

evidence indicating otherwise. See Premier Members, ¶ 27.

¶ 38 We also reject the Thurbers’ argument that part performance

renders the Ewing Easement Grant enforceable. The Thurbers

haven’t cited, and we haven’t found, any authority suggesting that

merely executing a document that would create an easement and

having discussions about the easement terms and boundaries is

sufficient to make the document binding — particularly where, as

here, the grantors refrained from delivering the document and

16
communicated their intent that they would not be bound by it until

other documents abandoning a related interest were executed.

d. Easement by Estoppel

¶ 39 Next, the Thurbers argue that the trial court erred by declining

to imply the Northern Drive Easement as an easement by estoppel.

Again, we disagree.

¶ 40 Generally, an easement is created when a grantor enters into a

contract or makes a conveyance intended to create a servitude that

complies with the statute of frauds. Lobato, 71 P.3d at 950. But

implied easements may be created without contracts or

conveyances. Id. One type of implied easement — an easement by

estoppel — may be created when (1) “the owner of the servient [or

burdened] estate ‘permitted another to use that land under

circumstances in which it was reasonable to foresee that the user

would substantially change position believing that the permission

would not be revoked,’ (2) the user substantially changed position

in reasonable reliance on that belief, and (3) injustice can be

avoided only by establishment of a servitude.” Id. at 950-51

(quoting Restatement (Third) of Prop.: Servitudes § 2.10 (Am. L.

Inst. 2000)).

17
¶ 41 “An easement by estoppel is an equitable remedy.” Id. at 951.

As such, we won’t disturb a trial court’s decision whether to grant

such a remedy absent an abuse of discretion. See Bolinger v. Neal,

259 P.3d 1259, 1268 (Colo. App. 2010). A trial court abuses its

discretion when its decision is manifestly arbitrary, unreasonable,

or unfair or is based on an erroneous understanding or application

of the law. Gebert v. Sears, Roebuck & Co., 2023 COA 107, ¶ 29.

¶ 42 We discern no abuse of the trial court’s discretion.

¶ 43 The Thurbers note that the trial court previously found that

there was at least an implied oral easement. However, they don’t

mention that, after learning of the hidden emails indicating

Mr. Ewing’s unwillingness to move forward with the deal, the court

retracted this finding, remarking, “[A]lthough the [c]ourt previously

indicated that there was an implied oral easement over the Ewing

land, the [c]ourt was not advised of all the facts and . . . certain

facts were actively concealed by or on behalf of the Thurbers.”

¶ 44 The Thurbers also argue that an easement by estoppel exists

based on their engagement in settlement discussions and execution

of the settlement agreement, their agreement with the Ewings in

principle on the exchange of the Main Drive Easement for the

18
Northern Drive Easement, the Ewings’ execution of the Ewing

Easement Grant, the parties’ discussions about where the Northern

Drive Easement would be located, and the parties’ staking out of

the middle line of that easement.

¶ 45 The trial court didn’t abuse its discretion by determining

otherwise. The court’s decision wasn’t manifestly arbitrary,

unreasonable, or unfair. And we find no suggestion of an erroneous

understanding or application of the law when the court concluded

that (1) the Ewings didn’t permit the use of their land in such a way

as to make it reasonable to foresee the Thurbers substantially

changing their position based on a belief the permission wouldn’t be

revoked, (2) the Thurbers didn’t substantially change their position

in reasonable reliance on any such belief, and (3) injustice doesn’t

require the establishment of a servitude. See Gebert, ¶ 29; Lobato,

71 P.3d at 950-51. Indeed, the court was aware that the Ewings

had communicated their intent that the Northern Drive Easement

wouldn’t be effective until the Main Drive Easement was formally

abandoned. And negotiating agreements, discussing details, and

walking and staking the boundaries of a proposed easement don’t

signify a substantial change in position as much as an outlay of

19
time and money to construct a driveway would have. See

Restatement (Third) of Prop.: Servitudes § 2.10 cmt. e (“Normally

the change in position that triggers [an easement by estoppel] is an

investment in improvements either to the servient estate or to other

land of the investor.”); Lobato, 71 P.3d at 955 (moving onto the

subject land and establishing permanent farms on it established a

substantial change in position).

e. Judicial Estoppel

¶ 46 The Thurbers also argue that the trial court erred by failing to

apply the doctrine of judicial estoppel to mandate the burdening of

JPD’s parcel with the Northern Drive Easement. Once again, we

disagree.3

¶ 47 Judicial estoppel is “an equitable doctrine by which courts

require parties to maintain a consistency of positions in the

proceedings, assuring promotion of truth and preventing the parties

from deliberately shifting positions to suit the exigencies of the

moment.” Est. of Burford v. Burford, 935 P.2d 943, 947 (Colo.

3 We reject the Brinkerhoffs’ and JPD’s arguments that the

Thurbers didn’t preserve this issue. The Thurbers sufficiently
raised the issue in the trial management order and their proposed
findings of fact and conclusions of law.

20
1997). This doctrine prevents a party from asserting inconsistent

positions in the same or related litigation that could result in

multiple recoveries for that party or could defeat their opponent’s

legitimate claim for recovery. Id.

¶ 48 As it is an equitable remedy, we won’t disturb a trial court’s

decision whether to apply judicial estoppel absent an abuse of

discretion. See Bolinger, 259 P.3d at 1268.

¶ 49 The Thurbers argue that, because the Brinkerhoffs initially

pursued the creation of the Northern Drive Easement across the

middle Ewing parcel, JPD, an entity the Brinkerhoffs wholly own,

may not now object to it. The Thurbers’ argument relies on the

premise that, because the Brinkerhoffs are the sole owners of JPD,

JPD is essentially their alter ego. Thus, they argue, JPD’s taking of

a different stance than the Brinkerhoffs previously did represents

the Brinkerhoffs’ assertion of inconsistent positions.

¶ 50 The trial court rejected this argument, declining to disregard

JPD’s status as a legal entity separate from the Brinkerhoffs. The

court noted that JPD legitimately purchased the middle Ewing

parcel as part of a Section 1031 exchange and that burdening the

21
parcel with an easement would significantly impair its value and

make it difficult to develop.4

¶ 51 We discern no abuse of discretion in this decision. See

Bolinger, 259 P.3d at 1268. “A legal entity, such as an LLC, is

separate from the members that own the entity,” except in

extraordinary circumstances, such as where a party satisfies the

criteria to pierce the corporate veil. Griffith v. SSC Pueblo Belmont

Operating Co., 2016 CO 60M, ¶ 11. The Thurbers didn’t attempt to

pierce JPD’s corporate veil. Thus, the trial court acted within its

discretion in treating JPD as an entity separate from its owners.

f. Relocation or Forfeiture of the Main Drive Easement

¶ 52 The Thurbers’ final argument concerning the establishment of

the Northern Drive Easement is that the trial court erred in

determining that neither relocation nor forfeiture of the Main Drive

was warranted. We disagree.

4 The trial court was referring to a provision of the United States

Tax Code, 26 U.S.C. § 1031, which permits taxpayers to defer the
capital gains taxes associated with the sale of real property by
reinvesting the proceeds in a replacement property. The trial court
heard evidence that JPD invests in real estate and purchased the
middle Ewing parcel after selling another property.

22
¶ 53 A burdened property owner generally may relocate an

easement to maximize the use of their property, so long as the

relocation doesn’t damage the benefited estate. Sinclair Transp. Co.

v. Sandberg, 2014 COA 76M, ¶ 56. However, they cannot

unilaterally move the easement if “it is specified in deeds or

otherwise to have a location certain.” Roaring Fork Club, L.P. v. St.

Jude’s Co., 36 P.3d 1229, 1236 (Colo. 2001) (citing Restatement

(Third) of Prop.: Servitudes § 4.8(3) (Am. L. Inst. 2000)).

¶ 54 Additionally, an easement may be forfeited if the dominant

estate holder misuses it, causing damage to the servient estate.

Isenberg v. Woitchek, 356 P.2d 904, 908 (Colo. 1960). While the

holder of the dominant estate generally may use an easement “for

any purpose to which the dominant estate may then, or in the

future, reasonably be devoted,” they risk forfeiting an easement if

they use it in a way “different from that established at the time of

its creation, which imposes an additional burden upon the servient

estate.” Westland Nursing Home, Inc. v. Benson, 517 P.2d 862, 867

(Colo. App. 1974) (citation omitted). Still, forfeiture of property

rights is disfavored, Wilson v. Prentiss, 140 P.3d 288, 292 (Colo.

App. 2006), and a court may decline to order forfeiture absent

23
evidence that actual damage resulted from any misuse, see

Isenberg, 356 P.2d at 908.

¶ 55 As to relocation, the Thurbers argue that the Brinkerhoffs had

already consented to moving the easement from the Main Drive to

the Northern Drive; thus, they were precluded from claiming the

relocation of the easement would damage them. Moreover, the

Thurbers argue, there wouldn’t be any damage because the new

route would be similar to and wouldn’t take much longer to traverse

than the existing route. But the location of the Main Drive

Easement is specified in the deeds creating the easement, thus

precluding the Thurbers’ unilateral relocation of the easement. See

Roaring Fork Club, 36 P.3d at 1236; Restatement (Third) of Prop:

Servitudes § 4.8(3). Moreover, even if the Brinkerhoffs at one time

agreed to move the easement as part of a settlement agreement that

fell through, that doesn’t mean that such a move wouldn’t cause

them damage. See Sinclair Transp. Co., ¶ 56. And, at any rate, the

Thurbers can’t unilaterally relocate that portion of the existing

easement that traverses the southern Ewing parcel they now own to

the middle Ewing parcel now owned by JPD (which, as we’ve stated,

24
is a distinct entity and must be treated separately from the

Brinkerhoffs).5

¶ 56 As to forfeiture, the Thurbers contend that the Brinkerhoffs’

excessive use and maintenance of the Main Drive and consistent

failure to close the gates along the drive constituted misuse

warranting forfeiture. The trial court, however, found that the

Thurbers had presented minimal evidence of misuse and that “the

Brinkerhoffs have not abused the easement to such an extent as

necessary to consider” forfeiture of the Main Drive. Given that

these findings are supported by ample evidence presented at trial

concerning the use and maintenance of the driveway, we discern no

error in the findings and decline to disturb them. See Premier

Members, ¶ 27; Lawry, 192 P.3d at 558.

5 The fact that JPD had notice of the parties’ easement disputes at

the time it acquired the property is irrelevant. The Thurbers cite no
case law — and we are aware of none — suggesting that an
easement can be moved onto another owner’s property simply
because that owner was aware of a dispute concerning the
easement before its purchase of the property.

25
2. Impermissible Delegation of Authority

¶ 57 The Thurbers next argue that the trial court impermissibly

delegated authority regarding maintenance of the Main Drive to the

panel of experts. We agree.

¶ 58 “[C]ourts cannot delegate their judicial duties.” Sapero v. State

Bd. of Med. Exam’rs, 11 P.2d 555, 577 (Colo. 1932). More

specifically, courts may not abdicate their responsibilities and

duties by delegating decision-making authority to others. Gelfond

v. Dist. Ct., 504 P.2d 673, 675 (Colo. 1972); see also Haverly

Invincible Mining Co. v. Howcutt, 6 Colo. 574, 575 (1883) (a judge

cannot appoint another person to perform the judge’s duties, even if

the parties consent to that appointment).

¶ 59 This question presents an issue of law, which we review

de novo. See Amica Life Ins. Co. v. Wertz, 2020 CO 29, ¶ 16.

¶ 60 The parties dispute whether, in directing the parties to turn to

a panel of experts to provide a binding recommendation regarding

future maintenance of the Main Drive, the court was relying on

C.R.C.P. 53, which governs special masters, or CRE 706, which

governs court-appointed experts.

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¶ 61 We need not decide which rule applies, however, because we

conclude that, in either event, the trial court impermissibly

delegated its decision-making authority by making the expert

panel’s recommendation binding on the parties.

¶ 62 The trial court directed the panel of experts to make a “binding

recommendation” regarding the ongoing maintenance of the Main

Drive. While the court indicated that its post-trial order would

prevail over any conflicting expert recommendations, it nevertheless

directed the parties to follow all recommendations that fell within

that limitation. And when the parties later presented the experts’

recommendations to the court, it summarily adopted them in an

order that didn’t include any substantive review.

¶ 63 We conclude that, because the ultimate decision on future

maintenance of the Main Drive was made by the panel of experts,

not by the trial court, the court impermissibly delegated its

decision-making authority to the experts. See Gelfond, 504 P.2d at

675. We therefore reverse the portion of the court’s post-trial order

directing the panel of experts to make a “binding recommendation”

regarding future maintenance of the Main Drive, and we declare

null and void the court’s later order adopting the experts’

27
recommendation. We also remand the case to the trial court to

make its own determination of the maintenance issues, with or

without the assistance of experts.

3. Trespass and Nuisance Claims

¶ 64 Finally, the Thurbers contend that the trial court erred by

finding against them on their claims for trespass and nuisance. We

are not persuaded.

a. Trespass

¶ 65 We discern no clear error in the trial court’s findings on the

Thurbers’ trespass claim.

¶ 66 Trespass is a physical intrusion on another landowner’s

property without their permission. Blakeland Drive Invs., LLP IV v.

Taghavi, 2023 COA 30M, ¶ 15. The intrusion can occur when an

actor intentionally enters someone else’s land or when an actor

causes something else to enter the land. Hoery v. United States, 64

P.3d 214, 217 (Colo. 2003). “For instance, an ‘actor, without

. . . entering the land, may invade another’s interest in its exclusive

possession by . . . placing a thing either on or beneath the surface

of the land.’” Id. (quoting Restatement (Second) of Torts §§ 158(a)

cmt. i, 159(1) (Am. L. Inst. 1965)). “A landowner who sets in motion

28
a force which, in the usual course of events, will damage property of

another is guilty of a trespass on such property.” Id.; see also Miller

v. Carnation Co., 516 P.2d 661, 664 (Colo. App. 1973) (a failure to

remove chicken manure from chicken houses, resulting in the

multiplication of flies that intruded onto a neighbor’s property, was

sufficient to establish trespass).

¶ 67 The Thurber’s trespass claim was premised on two theories.

First, they complained about the Brinkerhoffs’ alleged overuse and

aggressive maintenance of the Main Drive, as well as their

mastication under a United States Forest Service agreement.6 The

Thurbers claimed that these activities caused soil, grass, snow, and

road base to wash down onto their property, damaging their

pasture and filling in culverts and cattle guards. And second, the

Thurbers claimed that the Brinkerhoffs trespassed on a claimed

6 Mastication involves grinding, shredding, and chopping trees and

shrubs into small pieces in an effort to prepare a site for new
growth, help control prescribed fires, and reduce the spread of
wildfires. See Theresa Jain et al., U.S. Dep’t of Agric., RMRS-GTR-
381, To Masticate or Not: Useful Tips for Treating Forest, Woodland,
and Shrubland Vegetation, at 1 (2018), https://perma.cc/XDA7-
NEA4.

29
easement (the NWG Easement, discussed infra Part III.B.1) despite

having no right to use it.

¶ 68 As to the first theory, the trial court found that although the

Thurbers had shown some filling in of their cattle guards,

suggesting excessive road maintenance, they hadn’t proven their

claim and would need expert evidence to establish liability for

trespass. We discern no clear error in this finding. Given the

parties’ conflicting positions as to what may have flowed onto the

Thurbers’ property, whether such material resulted from the

Brinkerhoffs’ activities, and whether such material caused any

harm, it was within the trial court’s province to find the claim

hadn’t been established with sufficient certainty. See Premier

Members, ¶ 27. And contrary to the Thurbers’ contention, the trial

court didn’t rule that expert testimony was required to establish

this kind of claim — only that, in the absence of expert testimony,

the court wasn’t convinced that a trespass had occurred.

¶ 69 As to the second theory, the court found that, at most, the

Thurbers proved that the Brinkerhoffs’ car had traveled on the NWG

Easement, and it awarded the Thurbers nominal damages of $1 for

that trespass. Thus, contrary to the Thurbers’ suggestion, the

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court didn’t rule against them on this theory; it just didn’t find any

damages. We discern no clear error in that finding. See id.

b. Nuisance

¶ 70 We decline to review the Thurbers’ challenge regarding the

nuisance claim due to their waiver of the issue.

¶ 71 Although the trial court summarily denied “any claim for

nuisance” in its post-trial order, the Thurbers had already

stipulated to the dismissal of their nuisance claim under C.R.C.P.

41 before trial. While the Thurbers note that the trial management

order referred to this claim, the draft order was apparently

submitted to the court before the C.R.C.P. 41 dismissal of the

nuisance claim. And there is no reference to a nuisance claim in

the Thurbers’ proposed findings of fact and conclusions of law.

¶ 72 Therefore, the Thurbers waived any claim for nuisance, and we

decline to consider arguments regarding that claim on appeal. See

People in Interest of A.V., 2018 COA 138M, ¶ 13 (a party waives an

issue when they specifically remove it from the trial court’s

consideration, and we may not review a waived issue on appeal).

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B. The Brinkerhoffs’ Arguments

¶ 73 In their cross-appeal, the Brinkerhoffs contend that the trial

court erred by (1) determining they don’t have an interest in the

Pasture Easement and (2) allowing the Thurbers to maintain gates

on the Main Drive Easement. We address each contention in turn.

1. Pasture Easement

¶ 74 The Brinkerhoffs argue that the trial court erred in concluding

that they have no interest in the Pasture Easement. We disagree.

a. Additional Background

¶ 75 Although this issue pertains to only one easement — the

Pasture Easement — the parties’ arguments and the trial court’s

reasoning overlap with issues concerning another easement — the

NWG Easement — not at issue in this appeal.

¶ 76 Diana P. Braden originally owned all of the relevant property.

In 1994, she sold portions of or interests in it to three buyer groups.

The Brinkerhoffs and Edward J. and Karen A. Novotny purchased

parcels in fee. And Tri-B Associates, LLP and North Washington

Property Investment Corporation purchased an easement —

referred to as the North Washington Group, or NWG, Easement

(though sometimes referred to as the NWD Easement) — to access

32
their property, which was adjacent to the parcel purchased by the

Novotnys. Part of that easement passed over the Novotnys’ parcel.

¶ 77 Ms. Braden later sold other parcels over which the NWG

Easement passed to three buyer groups — the Ewings, the

Thurbers, and the Brinkerhoffs (who purchased a second parcel,

referred to as the conservation parcel, adjacent to the one they’d

bought in 1994). The three conveyances reserved to Ms. Braden an

easement over the Main Drive but not over the NWG Easement.

The Thurbers also purchased the Novotnys’ parcel.

¶ 78 At an earlier stage in this litigation, the Brinkerhoffs asserted

that they had a right to use the NWG Easement passing over the

Thurbers’ property to reach the conservation parcel. In Thurber v.

Brinkerhoff, (Colo. App. No. 14CA1623, Dec. 1, 2016) (not published

pursuant to C.A.R. 35(e)), a division of this court rejected that

argument, concluding that the Brinkerhoffs had no such right

because Ms. Braden hadn’t reserved any right to the NWG

Easement in her various transfers of property; thus, she didn’t have

an interest in that easement at the time she conveyed the

conservation parcel to the Brinkerhoffs. See id. at ¶¶ 29-40.

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¶ 79 In 1994, Ms. Braden also attempted to convey to the

Brinkerhoffs a different easement, called the Pasture Easement,

which would provide another means of accessing their property

from the public road. The western part of the Pasture Easement

was to run along the same path as the NWG Easement, then it

would diverge from the NWG Easement and run northeast toward

the Brinkerhoffs’ property.

¶ 80 Although the parties raised different issues relating to the two

easements at trial, the trial court at times referred to the two

interchangeably in its post-trial order. In a later order, the court —

at that point, a different judge, following the original judge’s

retirement — expressed an understanding that the two easements

were the same and restated one of the earlier findings to provide

that “the Brinkerhoffs have no interest in the NWG Drive, also

known as the ‘Pasture Easement.’” Later, however, the court

entered a corrected order rescinding the restated finding,

acknowledging that the two easements were different, and noting

that the Brinkerhoffs had no interest in either easement.

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b. Rights in the Pasture Easement

¶ 81 Although the trial court gave a few reasons for concluding that

the Brinkerhoffs didn’t have an interest in the Pasture Easement,

we affirm its decision for one reason alone: the Novotnys, as the

predecessors-in-interest to the Thurbers, didn’t have any notice of

the easement at the time they acquired their property interest. See

Million v. Grasse, 2024 COA 22, ¶ 29 (we may affirm a trial court’s

judgment on any basis supported by the record).

¶ 82 The existence of an expressly created easement is determined

by interpreting the conveyance instrument, which we do de novo.

Gold Hill Dev. Co., L.P. v. TSG Ski & Golf, LLC, 2015 COA 177, ¶ 43.

¶ 83 An easement may be created by reservation in a deed

conveying the servient property to another person. Friends of the

Black Forest Reg’l Park, Inc. v. Bd. of Cnty. Comm’rs, 80 P.3d 871,

879 (Colo. App. 2003). Although no particular words are required

to grant an easement, the instrument must identify with reasonable

certainty the easement created and the dominant and servient

tenements. Hornsilver Circle, Ltd. v. Trope, 904 P.2d 1353, 1356

(Colo. App. 1995).

35
¶ 84 Ms. Braden conveyed the initial parcel to the Novotnys on July

11, 1994.7 In that deed, Ms. Braden reserved what would become

the Main Drive Easement. She didn’t reserve any other easement in

the deed. On the same day, Ms. Braden executed another

instrument granting the Pasture Easement to the Brinkerhoffs.

¶ 85 Colorado has a “race-notice” recording statute, such that

“unrecorded instruments or documents are generally not valid

against persons with rights in or to such real property who first

record and those holding rights under such persons.” Ranch O, LLC

v. Colo. Cattlemen’s Agric. Land Tr., 2015 COA 20, ¶ 30; see also

§ 38-35-109, C.R.S. 2024.

¶ 86 The statute makes an exception, though, if a person has notice

of a claimed interest before they acquire their rights in the property.

Ranch O, ¶ 30. Three forms of notice are recognized: actual notice,

constructive notice, and inquiry notice. Franklin Bank, N.A. v.

Bowling, 74 P.3d 308, 313 (Colo. 2003). Actual notice occurs when

7 The Brinkerhoffs suggest that this conveyance was initially invalid

under then-existing law. But they don’t develop this argument in
their opening brief. Nor does it appear that they argued it to the
trial court. Therefore, we don’t consider it. See Doe 1, ¶ 60; Good
Life Colo., LLC v. WLCO, LLC, 2025 COA 8M, ¶ 31 (we don’t consider
issues not preserved in the trial court).

36
a person has actual knowledge of another’s claim. Id. Constructive

notice is essentially record notice: when someone properly records

their interest in property, they constructively notify “all the world”

of their claim, and the law assumes that all future grantees will

search the index and discover the claim. Id. And inquiry notice

arises when a person becomes or should’ve become aware of facts

that, if investigated, would reveal another’s claim, in which case

they are charged with all knowledge that a reasonable investigation

would’ve revealed. Id.

¶ 87 While Ms. Braden conveyed the Novotnys’ parcel and granted

the Pasture Easement on the same day (July 11, 1994), the

Novotnys recorded their instrument first — they recorded their

interest on July 19, 1994, whereas the Brinkerhoffs recorded their

interest two days later, on July 21, 1994. Thus, the Novotnys had

no constructive notice of Pasture Easement. And the Brinkerhoffs

don’t offer any reason why the Novotnys would’ve had inquiry notice

either. So the Novotnys could’ve taken their parcel subject to the

Pasture Easement only if they had actual notice of it. See id.

¶ 88 But the trial court found that the Novotnys had no actual

notice of the easement at the time they acquired their interest. To

37
be sure, this issue was hotly contested at trial, and the Brinkerhoffs

cited evidence that could’ve supported a contrary finding. But the

court rejected their evidence, finding that “[Ms.] Novotny was more

credible than the Brinkerhoffs on the issue of a pasture easement

being meaningfully discussed or in any manner approaching a

granting of such pasture easement.” Because there is evidence

supporting the trial court’s finding, we must affirm it. See Premier

Members, ¶ 27; Lawry, 192 P.3d at 558.8

¶ 89 Because the Novotnys took the property with no notice of the

Pasture Easement, their purchase wasn’t subject to that easement.

Consequently, when the Thurbers later purchased the property

from the Novotnys, it was unburdened by the easement. The

Brinkerhoffs nonetheless argue that the Thurbers took the property

with knowledge of the claimed easement and, therefore, that their

interest is subject to the easement. But the Thurbers took the

same property interest the Novotnys had — which was not subject

to the easement. See Overland Mach. Co. v. Alpenfels, 69 P. 574,

8 The Brinkerhoffs, in fact, concede this point, acknowledging that

“clear error cannot be shown” on the trial court’s findings regarding
the Novotnys’ notice.

38
575 (Colo. 1902) (“[O]ne is presumed to convey the highest estate he

owns in the lands granted, unless a smaller estate is described.”)

(citation omitted); Ranch O, ¶ 30 (unrecorded instruments are

invalid not just against persons with rights to the property that are

first recorded but also “those holding rights under such persons”).

And any notice the Thurbers had of an attempt by a former owner

to create an easement would at that point have no effect, as the

former owner would then have no property interest to convey. See

Better Baked, LLC v. GJG Prop., LLC, 2020 COA 51, ¶ 33 (a party

can challenge an instrument purporting to grant an interest in

property if the grantor had no interest in the property to convey).

2. Gates on the Main Drive

¶ 90 Lastly, the Brinkerhoffs argue that the trial court erred by

permitting the Thurbers to maintain gates along the Main Drive.

We disagree.

¶ 91 The owner of land burdened by an easement has a qualified

right to put their property to any lawful use. Lazy Dog Ranch v.

Telluray Ranch Corp., 923 P.2d 313, 316 (Colo. App. 1996).

However, they cannot unreasonably interfere with the superior right

of the holder of the easement. Id.

39
¶ 92 Whether gates are an unreasonable interference to an

easement holder is a factual question. Id. at 317; see also Schold v.

Sawyer, 944 P.2d 683, 685 (Colo. App. 1997) (“[W]hat may be

considered a proper use by the servient owner is a question of

fact.”). We won’t disturb the trial court’s findings if they are

supported by the evidence. Lazy Dog Ranch, 923 P.2d at 317.

¶ 93 When the grant is silent on the issue, a court should consider

four nonexclusive factors in deciding whether gates unreasonably

interfere with an easement: (1) the purpose for which the grant was

made, (2) the parties’ intention given the circumstances

surrounding the grant, (3) the nature and situation of the property,

and (4) the manner in which the easement is used. Id.

¶ 94 In applying these factors to the facts of this case, the trial

court first discussed that the primary purpose of the Main Drive

Easement was to allow the Brinkerhoffs access from the public road

to the parcel where their house is situated. The court also

recognized that when Ms. Braden owned the land, she used the

entire area for ranching and that the Thurbers intended to continue

some limited ranching operations. The court further noted that the

property is rural and is zoned consistent with ranching. Finally,

40
the court found “ample evidence” that the Thurbers use the land for

limited agricultural purposes and at least intermittently keep

livestock. Based on these factors, the court determined that “the

Thurbers may maintain the gates that are currently in place and

the cattle guards currently in place as well, to facilitate the

continuation of their limited ranching operation.”

¶ 95 However, the court established some limitations to balance the

parties’ interests and minimize the burdens on the Brinkerhoffs.

For instance, the court ordered the Thurbers to provide the

Brinkerhoffs with at least four working remote controls and to

ensure that the gates can be activated manually with a button. The

court also directed that the gates remain open during any times the

Thurbers are not using their property for ranching operations.

¶ 96 We discern no clear error in the trial court’s findings, which

are amply supported by the record. See id. The Brinkerhoffs argue

that the trial court failed to find that the gates were actually

necessary — but that fact is implicit in its order, and, at any rate,

the court directed that the gates be kept open when the Thurbers

aren’t conducting ranching operations on their property (in other

words, when the gates aren’t needed to aid ranching operations).

41
And while the Brinkerhoffs point to other evidence that could’ve

supported their position that any use of gates was unreasonable or

could’ve supported additional limitations on the use of gates, it is

not our role to reassess those facts or substitute our own findings

for those of the trial court. See id.; see also Lawry, 192 P.3d at

558. Nor is it our role to second-guess the trial court’s allowance of

locked gates — particularly given that the gates aren’t padlocked, cf.

Lazy Dog Ranch, 923 P.2d at 316-17, but can simply be opened

with remotes or a button. And we don’t second-guess the court’s

approval of the existing gates, notwithstanding that they are slightly

narrower than the maximum width of the driveway.

IV. Appellate Attorney Fees and Costs

¶ 97 Finally, we deny JPD’s request for attorney fees pursuant to

section 13-17-102(4), C.R.S. 2024, and C.A.R. 39.1 on the basis

that the Thurbers’ appeal lacks substantial justification.

¶ 98 As an initial matter, we note that JPD’s request doesn’t comply

with C.A.R. 39.1, which requires a request for appellate attorney

fees to be set out “under a separate heading.”

¶ 99 At any rate, we don’t find that an award of such fees is

warranted. Under section 13-17-102(4), a court may assess fees if

42
it finds that a “party brought or defended an action, or any part of

an action, that lacked substantial justification.” “[A]n appeal ‘lacks

substantial justification’ and is ‘substantially frivolous’ under

[section] 13-17-102(4) when the appellant’s briefs fail to set forth, in

a manner consistent with C.A.R. 28, a coherent assertion of error,

supported by legal authority.” Castillo v. Koppes-Conway, 148 P.3d

289, 292 (Colo. App. 2006). We conclude that the Thurbers’ appeal

doesn’t lack substantial justification. They presented coherent

arguments supported by legal authority and citations to the record,

and they prevailed on one of those arguments.

¶ 100 Because JPD only partially prevailed in its defense of the

Thurbers’ appeal, costs may be taxed only as ordered by the trial

court on remand. See C.A.R. 39(a)(4).

V. Disposition

¶ 101 The judgment is reversed as to the trial court’s directions

concerning ongoing maintenance of the Main Drive. The judgment

is affirmed in all other respects. The case is remanded for further

proceedings consistent with this opinion.

JUDGE FOX and JUDGE LUM concur.

43