Bernhardt v. Thompson

25CA0289 Bernhardt v Thompson 05-07-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 25CA0289
Gilpin County District Court No. 21CV30002
Honorable Todd L. Vriesman, Judge

Eric Bernhardt, Melanie Bernhardt, and Colleen Bernhardt,

Plaintiffs-Appellees,

v.

Kenneth Russell Thompson,

Defendant-Appellant.

JUDGMENT AFFIRMED AND CASE
REMANDED WITH DIRECTIONS

Division VI
Opinion by JUDGE YUN
Grove and Schock, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced May 7, 2026

Murr Siler Eckels Delaney, PC, Joseph A. Murr, Daniel R. Delaney, Denver,
Colorado, for Plaintiffs-Appellees

Levin Sitcoff PC, Bradley A. Levin, Gideon S. Irving, Denver, Colorado, for
Defendant-Appellant
¶1 In this action to determine the existence of an implied

easement, the defendant, Kenneth Russell Thompson, appeals the

district court’s judgment in favor of the plaintiffs, Eric Bernhardt,

Melanie Bernhardt, and Colleen Bernhardt, on their claims for

trespass, permanent injunctive relief, quiet title, and declaratory

relief. Thompson contends the court erred by finding that (1) an

easement implied by prior use serves the Bernhardts’ property and

burdens his property; (2) he had notice of the easement; and (3) the

easement was not extinguished by adverse possession. He further

contends the court erred by failing to grant full relief pursuant to

C.R.C.P. 105 when it entered its final judgment and decree. We

disagree with all but the last of these contentions. We therefore

affirm the judgment and remand the case to the district court for

further proceedings consistent with this opinion.

I. Background

¶2 We draw the following factual background from the record and

the district court’s order issued after a bench trial. The court’s

findings have record support.

¶3 The illustration below depicts land in Gilpin County that was

owned in the 1960s by Albert and Matilda Stahn.

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The Subject Land Labeled with Current Owners

A Gilpin County road intersects the parcel labeled Section 3

diagonally. The Stahns constructed a residence in the southern

portion of the parcel labeled Section 2 — the property now owned

by the Bernhardts. To access the county road, they built a

driveway across Section 3, connecting their new home in Section 2

to the county road. This driveway — hereafter referred to as the

North Road — marks the approximate location of the disputed

easement, which we will refer to as the North Road easement.

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¶4 The Stahns later conveyed the southern portion of Section 2

containing their home to Adolf and Verlyn Wilhelm. The 1972

warranty deed did not describe an easement for access by the

Wilhelms over the Stahns’ property, but the Wilhelms nonetheless

used the North Road across Section 3 as the exclusive means of

accessing their property.

¶5 In 1978, both the Stahns and the Wilhelms sold their land.

First, the Stahns sold the southern portion of Section 3 to Roland

Morrison. Their April 5, 1978, deed to Morrison created a fifty-foot-

wide access easement along the shared border, with twenty-five feet

on the Morrison parcel and twenty-five feet on the Stahns’

remaining parcel. We will refer to the road dividing these properties

as the South Road and this easement as the South Road easement.

The Stahns did not record the South Road easement against their

own property.

¶6 Next, the Stahns prepared to sell their remaining property —

the northern portions of Section 3 and Section 2, now owned by

Thompson. Learning of the upcoming sale, the Wilhelms

commissioned a survey of the North Road from the county road

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across Section 3 to their home in the southern portion of Section 2.

The Wilhelms recorded a certificate of survey on July 31, 1978.

¶7 Before the Stahns sold their remaining property, the Wilhelms

asked the Stahns to formally recognize the North Road easement.

On August 1, 1978, the Stahns executed a new warranty deed to

the Wilhelms for their previously purchased property. The 1978

Wilhelm deed expressly granted an easement over the Stahns’

property in Section 3, with a description approximately matching

the North Road as surveyed. But — as with the South Road

easement — the Stahns did not record the North Road easement

against their own property.

¶8 That same day, the Stahns sold their remaining property to

Russell Pershing. The Stahns’ warranty deed to Pershing contained

standard language that title was “subject to easements . . . of

record,” but it did not specifically acknowledge either the North

Road easement (which the Stahns had described that same day in

the 1978 Wilhelm deed) or the South Road easement. It did,

however, describe an “easement for ingress and egress over a strip

of land 20 feet wide” in the approximate location of the North Road.

We will refer to this easement as the Pershing easement. The

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description of the Pershing easement substantially matches the

description of the North Road easement in the 1978 Wilhelm deed

until the final 128 feet, where the Pershing easement veers north.

¶9 The Wilhelms’ property is now owned by the Bernhardts.

Their title identifies the North Road easement. The Pershing

property is now owned by Thompson. His title identifies the

Pershing easement but not the North Road easement.

¶ 10 The Bernhardts sued Thompson in 2021, alleging that he was

“blocking the [North Road] with boulders, concrete barriers and

other debris, making it unusable for ingress to and egress from”

their property. After a two-day bench trial in 2022, the district

court found that “an easement in the location of the North Road has

existed since 1972 over the land that is now owned by Thompson in

Section 3 . . . . The North Road easement serves the Bernhardt

Property and burdens the Thompson Property.” The court quieted

title in favor of the Bernhardts and permanently enjoined

Thompson from blocking the North Road easement.

¶ 11 Thompson moved for reconsideration, which the court denied.

In its final judgment and decree on December 30, 2024, the court

adopted a new legal description of the North Road easement

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prepared by a registered professional land surveyor and ordered

that “[t]his legal description of the North Road Easement would

supersede and replace all previous descriptions.”

¶ 12 Thompson now appeals.

II. Standard of Review

¶ 13 When a court enters judgment following a bench trial, that

judgment presents a mixed question of law and fact. State Farm

Mut. Auto. Ins. Co. v. Johnson, 2017 CO 68, ¶ 12. We review the

court’s legal conclusions de novo and its factual findings for clear

error. Id.; May v. Petersen, 2020 COA 75, ¶ 10. We will not disturb

the court’s factual findings unless there is no evidence in the record

to support them. Petersen, ¶ 10.

¶ 14 “It is the responsibility of the trial court as the trier of fact to

determine the credibility of the witnesses and the sufficiency,

probative effect, and weight of the evidence.” In re Marriage of

Hatton, 160 P.3d 326, 330 (Colo. App. 2007). It is not our role to

reweigh the evidence. Gagne v. Gagne, 2019 COA 42, ¶ 51. And we

draw all reasonable inferences from the evidence in favor of the

prevailing party, including inferences and conclusions drawn from

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conflicting evidence. See Weisiger v. Harbour, 62 P.3d 1069, 1071

(Colo. App. 2002).

III. Easement Implied by Prior Use

¶ 15 Thompson contends the district court erred by finding that the

Bernhardts proved all the elements required to establish an

easement implied by prior use. We are not persuaded.

¶ 16 To establish an easement implied by prior use, a party must

demonstrate that (1) the servient and dominant estates were once

under common ownership; (2) the right alleged was exercised prior

to the severance of the estate; (3) the use of the right was not

merely temporary; (4) the continuation of this use was reasonably

necessary to the enjoyment of the parcel; and (5) a contrary

intention is neither expressed nor implied. Lobato v. Taylor,

71 P.3d 938, 951 (Colo. 2002). Only the third, fourth, and fifth

elements are at issue here.

¶ 17 In addressing the third and fourth elements, the district court

found that

[t]he Stahns lived in the cabin on [what would
become] the Bernhardt Property year-round
and accessed that cabin via the North Road
every day. . . . No other route was used to

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access the home when occupied by the
Stahns . . . .

Thompson argues that these findings lack record support —

specifically, that no trial testimony addressed “how long, how

regularly, or for what purposes the Stahns did or did not use the

North Road.”

¶ 18 The record belies Thompson’s argument. The district court

heard testimony about the Stahns’ use of the North Road from

Verlyn Wilhelm, now known as Verlyn Distel.1 Ms. Wilhelm testified

that she met the Stahns when they took the Wilhelms to see the

house. When asked whether, at the time of the purchase, she

understood that she and her husband would use the North Road to

access the property, she confirmed that she did, stating:

Yeah. Basically because . . . that’s the road
[the Stahns] took us up on when they showed
us the house. And that was the road I believe
they were using at the time because they never
referred to [any other].

After purchasing the property, according to Ms. Wilhelm, she and

her husband used the North Road every day. On redirect

1 For ease of understanding, we will refer to Ms. Distel as

Ms. Wilhelm, her name at the relevant time period. We intend no
disrespect by referring to Ms. Distel in this manner.

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examination, she again testified that the Stahns had used the North

Road to reach their house before the Wilhelms purchased it and

that her own use of the North Road was “consistent” with the

Stahns’ use. She also testified that while the South Road existed in

1972, she “never” used it for access because it was “rough,” “rocky,”

and “just too steep.”

¶ 19 Ms. Wilhelm’s testimony that her daily, exclusive use of the

North Road was “consistent” with the Stahns’ directly supports the

district court’s finding that the Stahns “accessed that cabin via the

North Road every day” and that “[n]o other route was used to access

the home when occupied by the Stahns.”

¶ 20 Thompson further argues that the Stahns’ exclusive use of the

North Road is insufficient to prove the element of reasonable

necessity because it is conceivable that the Stahns could have used

the South Road but chose not to. But although Ms. Wilhelm

testified that both roads were “mountainous” and neither was “a

picnic,” she described the South Road as “just too steep” to use for

access. And while Ms. Wilhelm testified that the South Road

existed in 1972, the evidence on this point was conflicting. Russell

Pershing, who purchased what would become Thompson’s property

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from the Stahns in 1978, testified that he did not recall the South

Road existing when he owned the property. The district court

appears to have credited Pershing’s testimony, finding that “the

South Road did not exist formally . . . in 1972.”

¶ 21 Drawing all reasonable inferences in favor of the prevailing

party, including inferences from conflicting evidence, see Weisiger,

62 P.3d at 1071, we conclude that the record supports the district

court’s finding that the Bernhardts established the third and fourth

elements by a preponderance of the evidence.

¶ 22 Turning to the fifth element — that a contrary intention is

neither expressed nor implied — Thompson argues that the absence

of any reference to the North Road easement in the 1972 Wilhelm

deed “shows that [the Stahns] didn’t intend to create an easement

in 1972,” when the parcels were severed from common ownership.

But the record supports the district court’s finding that the Stahns’

conduct demonstrates their intent more reliably than their

“amateur attempt at legal implementation.” Ms. Wilhelm testified

that the Stahns used the North Road as the exclusive means of

access to their house and took the Wilhelms to see the house via

the North Road.

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¶ 23 The Stahns’ later conduct further supports their intent to

create an easement in 1972. In 1978, when the Wilhelms asked

that the North Road easement be formally recognized before the sale

of the Stahns’ remaining property, the Stahns executed a new

warranty deed expressly memorializing it. As the district court

found, “[t]he 1978 second deed from the Stahns confirmed in

writing this prior use and the parties’ intent” in 1972. Contrary to

Thompson’s argument that the district court erred by considering

the 1978 deed because “the parties’ intent in 1978 is irrelevant,”

the court’s order makes clear that it considered the 1978 deed only

as additional evidence of the parties’ intent in 1972.

¶ 24 Drawing all reasonable inferences in favor of the prevailing

party, we conclude the record supports the district court’s finding

that the Bernhardts established the fifth element by a

preponderance of the evidence.

¶ 25 We therefore discern no error in the court’s finding that the

Bernhardts proved all the elements required to establish an

easement implied by prior use.

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IV. Notice

¶ 26 Thompson contends the district court erred by finding that he

had notice of the easement. We disagree.

¶ 27 In Colorado, there are three types of notice: actual,

constructive, and inquiry. Martinez v. Affordable Hous. Network,

Inc., 123 P.3d 1201, 1206 (Colo. 2005). “Actual notice occurs when

a party has actual knowledge of a title defect.” Id. Constructive

notice occurs when “a [party’s] search of the title records would

have revealed [the] defect.” Id. Inquiry notice arises when “a party

becomes aware or should have become aware of certain facts which,

if investigated, would reveal the claim of another.” Id. (quoting

Franklin Bank, N.A. v. Bowling, 74 P.3d 308, 313 (Colo. 2003)).

¶ 28 Inquiry “notice will not be ‘imputed to a purchaser if a

reasonable search would prove, or would have proven, futile.’” Id.

(quoting Littlefield v. Bamberger, 32 P.3d 615, 619 (Colo. App.

2001)). But if circumstances exist that would arouse the

“suspicions of an ordinary purchaser,” then “[i]nquiry notice

imputes knowledge” upon the purchaser. Id. at 1207; see Lobato v.

Taylor, 70 P.3d 1152, 1163 (Colo. 2003) (“Although, generally, only

documents within a chain of title must be searched to determine

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relevant interests in real property, more is required where it

appears that outside interests may affect title. In such instances,

an individual has a duty to investigate these other interests and is

charged with knowledge of the facts to which the investigation

would have led.”).

¶ 29 The district court found that Thompson had inquiry notice of

the North Road easement, for two reasons. First, Thompson’s deed

contained “language . . . that incorporates an easement in the same

location” as the North Road easement. Although this language

refers to the Pershing easement rather than the North Road

easement, the two are substantially identical except for the last 128

feet. And although the Pershing easement did not extend to the

Bernhardts’ property, Thompson reiterated his deposition testimony

at trial that the person who sold him his property told him the

easement benefitted his neighbors — that is, the Bernhardts. He

also testified that he had considered whether the Bernhardts held

an easement over his property and concluded that, if they did, they

had abandoned it.

¶ 30 Second, the district court found that the undisputed physical

facts independently gave rise to inquiry notice. Specifically,

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[a] physical North Drive is cut into the land. A
metal gate and old mailbox exist across the
North Road where it enters [the Bernhardts’]
property. The gate and mailbox were in that
location for years, during the entire period
of . . . Thompson’s ownership.

¶ 31 Drawing all reasonable inferences in favor of the prevailing

party, we conclude that the record supports the district court’s

finding that Thompson had notice of the North Road easement.

V. Adverse Possession

¶ 32 Thompson contends the district court erred by finding that the

North Road easement was not extinguished by adverse possession.

We discern no error.

¶ 33 To prevail on an adverse possession claim for fee simple title to

real property, a party must demonstrate by clear and convincing

evidence that possession of the disputed area was actual, adverse,

hostile, under a claim of right, exclusive, and uninterrupted for

eighteen years. Smith v. Hayden, 772 P.2d 47, 52 (Colo. 1989); see

§ 38-41-101(1), (3)(a), (3)(b)(I), C.R.S. 2025. Additionally, “an

adverse claimant must establish a good faith belief that he or she

(or a predecessor in interest) was the property’s actual owner, which

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belief was reasonable under the circumstances.” Lensky v.

DiDomenico, 2016 COA 89, ¶ 25; § 38-41-101(3)(b)(II).

¶ 34 But when “adverse possession is claimed solely as a defense to

an action for damages based upon a claim for trespass . . . against

the adverse possessor, and not to seek an award of legal title

against the claimant, the burden of proof shall be by a

preponderance of the evidence.” § 38-41-101(5)(b). The good faith

requirement likewise does not apply to claims that do not seek to

establish fee simple title to real property and instead concern only

“the creation, establishment, proof, or judicial confirmation or

delineation of easements.” § 38-41-101(4). “If the defendant is

claiming adverse possession solely as a defense to an action and not

to seek an award of legal title, the defendant shall so state in a

pleading filed by the defendant within ninety days after filing an

answer . . . .” § 38-41-101(5)(b).

¶ 35 In his answer to the Bernhardts’ second amended complaint,

Thompson asserted adverse possession both as a defense and as an

affirmative counterclaim. As a defense, he asserted that “[p]laintiffs’

claimed easement has been extinguished by adverse possession.”

As a counterclaim, he asked the court to “quiet title and to declare

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the claimed [North Road] Easement, if it ever existed, extinguished

by adverse possession.”

¶ 36 In its order denying Thompson’s motion for reconsideration,

the district court treated his assertion of adverse possession as an

affirmative counterclaim, noting that Thompson “seeks to

extinguish the easement and own the land in fee simple to the

exclusion of the easement.” The court ruled that “the adverse

possession claim is groundless.” After noting that Thompson had

the burden of establishing each element of adverse possession by

clear and convincing evidence, it found that “the entire 18-year

prescription period of openly hostile and exclusive possession is

obscured and not proven.” It further found that Thompson had not

demonstrated that he and his predecessor in interest held a

reasonable good faith belief “that they were the actual owner of the

property instead of [the Bernhardts].”

¶ 37 Thompson argues that the district court erred by applying the

clear and convincing evidence standard and by requiring a

reasonable good faith belief, because he asserted adverse

possession both as a defense and as an affirmative counterclaim.

We are not persuaded, for three reasons.

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¶ 38 First, Thompson did not preserve the argument he raises

here — that the district court should have applied a preponderance

of the evidence standard and should not have required a good faith

belief. Although he addressed adverse possession in his written

closing argument and in a supplement to his motion for

reconsideration, he did not raise these issues. See Melat, Pressman

& Higbie, L.L.P. v. Hannon L. Firm, L.L.C., 2012 CO 61, ¶ 18 (“It is

axiomatic that issues not raised in or decided by a lower court will

not be addressed for the first time on appeal.”).

¶ 39 Second, whether couched as a defense or as a counterclaim,

Thompson’s assertion that the easement was extinguished by

adverse possession is, in essence, a claim that he owns the land in

fee simple, not subject to the easement. The district court

acknowledged as much when it noted that Thompson “seeks to

extinguish the easement and own the land in fee simple to the

exclusion of the easement.”

¶ 40 Third, section 38-41-101(5)(b) does not apply to Thompson’s

assertion of adverse possession because Thompson did not claim

adverse possession “solely as a defense to an action for damages.”

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§ 38-41-101(5)(b). Rather, he also sought “an award of legal title”

against the Bernhardts. Id.

¶ 41 We thus conclude that the district court did not err by

rejecting Thompson’s adverse possession claim.

VI. Full Relief Under C.R.C.P. 105

¶ 42 Finally, Thompson contends the district court erred by failing

to grant full relief under C.R.C.P. 105 when it entered its final

judgment and decree. Specifically, he argues that, when the district

court adopted a new survey of the North Road easement, it

“declined to also extinguish two surveyed easements that appear in

the record along a nearly identical path as the [North Road

easement].” He further argues that the court should have declared

the Pershing easement “extinguished in its entirety.”

¶ 43 Thompson preserved this argument in his response to the

Bernhardts’ motion to accept proposed judgment, but the district

court did not address it. C.R.C.P. 105(a) states, “The court may at

any time after the entry of the decree make such additional orders

as may be required in aid of such decree.” See Greystone Constr.,

Inc. v. Nat’l Fire & Marine Ins. Co., 661 F.3d 1272, 1290 (10th Cir.

2011) (“[T]he better practice on issues raised [below] but not ruled

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on by the district court is to leave the matter to the district court in

the first instance.” (quoting Apartment Inv. & Mgmt. Co. v. Nutmeg

Ins. Co., 593 F.3d 1188, 1198 (10th Cir. 2010))); Pac. Frontier v.

Pleasant Grove City, 414 F.3d 1221, 1238 (10th Cir. 2005) (“Where

an issue has been raised, but not ruled on, proper judicial

administration generally favors remand for the district court to

examine the issue initially.”). Accordingly, we remand the case to

the district court to consider Thompson’s argument that these three

easements should be extinguished.

VII. Disposition

¶ 44 The judgment is affirmed, and the case is remanded for the

district court to consider whether the three easements noted by

Thompson in his response to the Bernhardts’ motion to accept

proposed judgment should be extinguished.

JUDGE GROVE and JUDGE SCHOCK concur.

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