Opinion
Rehearing Denied Feb. 29, 1972.
Elias J. Candell, Lakewood, for plaintiffs in error.
Anthony F. Zarlengo, Denver, John F. Healy, Breckenridge, Alperstein & Plaut, p.c., Frank Plaut, Lakewood, for defendants in error.
SILVERSTEIN, Chief Judge.
This case was transferred from the Supreme Court pursuant to statute.
This is an action in which plaintiffs in error, plaintiffs in the trial court, claimed an easement for a right-of-way across the land of defendants and sought injunctive relief to prevent defendants from interfering with plaintiffs' use of the easement Plaintiffs appeal from a judgment in favor of defendants. We affirm the trial court.
Two issues are presented for determination by this appeal: First, whether the trial court erred in not finding a prescriptive easement; and, secondly, whether the trial court erred in the finding an easement by way of necessity.
I. EASEMENT BY PRESCRIPTION
Plaintiffs rely upon C.R.S.1963, 120--1--1, as controlling in the situation here. It reads, in pertinent part, as follows:
'The following are hereby declared to be public highways: . . .
'(3) All roads over private lands that have been used adversely without interruption or objection on the part of the owners of such lands for 20 consecutive years.'
The record is voluminous and contains a plethora of exhibits including several photographs and maps. No worthwhile purpose would be served by detailing all the evidence pointing to an adverse use on the one hand or to a permissive use on the other.
On substantial evidence, the trial court specifically found that the road in question was not in existence prior to August 1960. Thus, the trial court's further finding that the required twenty-year adverse use was not proven is supported by direct and substantial evidence and cannot be disturbed upon appellate review. Segelke v. Atkins, 144 Colo. 558, 357 P.2d 636.
II. EASEMENT BY WAY OF NECESSITY
Three requirements must be met before a right-of-way will fall within the purview of an implied easement by way of necessity. Namely it must be established 'that the original ownership of the entire tract be held by a single grantor prior to a division thereof . . . that the necessity existed at the time of the severance . . . that necessity for the particular right-of-way be great.' Wagner v. Fairlamb, 151 Colo. 481, 379 P.2d 165.
As found by the trial court, plaintiffs' evidence failed to establish any of the above elements.
Plaintiffs' remaining arguments are without merit.
Judgment affirmed.
ENOCH and PIERCE, JJ., concur.