Background
The Bjorkmans owned two adjacent properties: the North Property (containing a ranch) and the South Property (containing an RV resort). When they sold the North Property to the Harrises in 2012, they executed an agreement granting the Harrises two perpetual, non-exclusive road easements. The first—the Entry Easement—allowed the Harrises to construct Harris Road across the South Property to reach the North Property directly from County Road M, avoiding traffic through the RV resort. The agreement specified that after Harris Road’s completion, the Harrises’ primary access would be via the Entry Easement, while the Bjorkmans could use it only for emergencies, with the reverse arrangement for the existing Historic Access Road.
After Harris Road was built in 2012, both the Bjorkmans and later the Carrs (who purchased the South Property in 2016) routinely crossed Harris Road to access the eastern half of their property without objection from the Harrises. When G5 purchased the North Property in 2022, it objected to these non-emergency uses and filed a declaratory judgment action seeking five decrees, including that the Carrs could use the Entry Easement only for emergencies and that G5 could construct fencing along its entire length.
The district court found the agreement unambiguous, granted summary judgment for G5, and after a bench trial, relocated the Entry Easement based on a mutual mistake finding. It ruled that the Carrs could not use any portion of the Entry Easement except for emergencies—even where it intersected with their primary Historic Access Road. G5 then constructed a continuous north-south fence along both sides of the Entry Easement with locked gates.
The Court’s Holding
The Colorado Court of Appeals reversed the district court’s finding of unambiguity on the central issues. Reading the agreement as a whole, the court held that paragraph 1.2 restricts only the Carrs’ use of the Entry Easement as road access to and from County Road M to emergencies. The agreement is silent regarding other uses—such as crossing Harris Road to access different halves of their own property. Because the easement is expressly designated “non-exclusive,” the Carrs retain “all the rights and benefits of proprietorship” except those expressly limited. The district court’s interpretation would have effectively granted G5 exclusive control, contradicting the non-exclusive language and failing to give harmonious effect to the whole agreement.
On fencing, the court found paragraph 1.1’s reference to “fences” is ambiguous as to scope and extent. While the term contemplates some fencing, it does not expressly authorize continuous fencing along the entire length of the Entry Easement. A fence that unreasonably interferes with the servient estate owner’s enjoyment may be prohibited, even if technically located within easement boundaries. Where the Entry Easement overlaps with the Historic Access Road, G5’s gated fence contradicts the agreement’s plain language. Paragraph 1.2 expressly grants the Carrs primary use of the Historic Access Road while limiting G5 to secondary, emergency-only access. Allowing G5 to install locked gates at this intersection grants G5 unilateral control over the Carrs’ primary access route—an impermissible result under non-exclusive easement law. The case was remanded for the district court to consider extrinsic evidence of the parties’ original intent and apply reasonableness standards.
Key Takeaways
- The “non-exclusive” designation in an easement preserves substantial retained rights for the servient estate owner beyond those expressly restricted in the conveyance document.
- Restrictions on one specific use of an easement do not eliminate all uses unless the agreement plainly addresses them; restrictions must be read in context of the whole instrument.
- Ambiguity in easement provisions must be resolved through extrinsic evidence of the parties’ intent and reasonableness standards, not by maximizing the dominant estate’s control.
- An easement holder cannot install improvements that would unreasonably interfere with the servient estate owner’s use and enjoyment of their property or access to their own land.
Why It Matters
This decision provides critical protection for property owners burdened by easements. Colorado courts will not strip servient estate owners of meaningful use of their own land through overly broad interpretations of ambiguous provisions. The ruling emphasizes that “non-exclusive” carries real legal weight—it is not merely a technical designation. For easement holders, the decision clarifies that vague provisions about improvements cannot be weaponized to transform an easement into near-exclusive control. The court’s remand to apply reasonableness standards signals that district courts must examine how both parties have actually used the properties and must allow uses that do not unreasonably interfere with the easement’s intended purpose.
The case also reflects a practical reality: when a property owner sells to a new owner, that new owner inherits not only the written document but also the practical realities of how neighbors have coexisted. The district court’s attempt to freeze the relationship based solely on the written word, without considering over a decade of actual use patterns, was rejected. On remand, the district court will need to grapple with why the original Harrises never objected to the crossing use for nearly ten years—suggesting the parties may have understood the agreement differently than G5 contends.