Opinion
Riffenburgh, Nelson & Porter, Alan R. Porter, Fort Collins, for defendants-appellees Leslie Potter and Fannie Potter.
Frey, Huisjen & Roy, John H. Huisjen, Fort Collins, for plaintiffs-appellants.
No appearance for defendants-appellees Midland Federal Savings & Loan Assn., Home Federal Sav. & Loan Assn. of the Rockies, and William A. Spight, Jr., and Patsy B. Spight.
STERNBERG, Judge.
Plaintiffs sought an injunction to restrain defendants from obstructing, fencing, or blocking a driveway. Plaintiffs claim that they, and their predecessors in title, had obtained a prescriptive easement to a portion of defendants' property in which the driveway was located. After trial, the court concluded that there was insufficient and unsatisfactory evidence to support plaintiffs' claim, that no common or mutual driveway existed, and that neither plaintiffs nor defendants had acquired any prescriptive rights in the others' property. Plaintiffs appeal. We affirm.
The plaintiffs and defendants own adjacent homes. Located along and on each side of the boundary line between their properties is a driveway which allegedly had been continuously used by all present and prior owners of both properties. The greater portion of the width of this driveway is on defendants' property. In 1969, plaintiffs built a fence along their own side of the driveway which altered its use, the extent of such alteration being disputed. In 1973, defendants built a fence along the boundary line, and parallel to plaintiffs' fence, which precluded plaintiffs from continuing to use the driveway.
Plaintiffs urge that the trial court erred in finding the evidence was insufficient to show any specific agreement as to a shift in location of the area used, and in concluding that there was no common and mutual driveway. Despite the fact that their fence may have caused the path of the driveway to deviate from its prior course, and that, to acquire a prescriptive easement, a use must be confined to a single, definite, and certain path, See Sprague v. Stead, 56 Colo. 538, 139 P. 544, plaintiffs contend that a change does not defeat acquisition by prescription if the way remains substantially the same. While we do not dispute that argument, See Annot., 80 A.L.R.2d 1095, we do hold that it is a question of fact within the domain of the trial court to determine whether the change was substantial. Also, while there is some indication in the record that a prior owner of defendants' property discussed the building of the fence with plaintiffs, there is insufficient evidence that the discussion or actions of the parties constituted a specific agreement as to a shift in the path of the driveway. Further, although it is undisputed that the fence built in 1973 precluded plaintiffs' use of the driveway after August of that year, there is conflicting evidence in the record as to when the prescriptive period began to run and some evidence indicating that it might have begun as late as October 1955.
Plaintiffs also urge that the trial court erred in finding there was conflicting evidence as to the manner of use of the driveway, and in finding the evidence was insufficient and unsatisfactory to show the exact manner in which plaintiffs' predecessors used the driveway. Evidence and testimony showed the driveway had been put to a variety of uses from 1955 to 1973. Also, plaintiffs' fence had limited the use of the driveway by precluding access to the immediate north side of their home where cars had been parked by a prior owner.
Thus, based as they are on competent evidence, we will not overturn the trial court's findings and conclusions. See Boulder & White Rock Ditch & Reservoir Co. v. City of Boulder, 157 Colo. 197, 402 P.2d 71; Clark v. Beauprez, 151 Colo. 119, 377 P.2d 105.
Judgment affirmed.
ENOCH and PIERCE, JJ., concur.