THE IMPORTANCE OF RECORDING A ROAD SURVEY
November 25, 2023
© James Beckwith
Claims under RS 2477 and Prescriptive Easements (C.R.S. 38-41-101(1) and 43-2-201(1)(c)) involve land routes which not only have not been the subject of recorded deeds but also which have not previously been surveyed as to their course and route. The successful claimant then must obtain a survey showing the course, route and width of the easement. The court’s failure to do so is judicial error. Bd. Cty. Cmmsrs, Delta v. Ogburn 554 P.2d., 700, 702 (Colo. App. 1976); Lovvorn v. Salisbury 701 P.2d. 142, 144 (Colo. App. 1985); Wright v. Horse Creek Ranches 659 P.2d. 705, 709 (Colo. App. 1977). The courts have not dictated the specific type of survey. Traditional metes-and-bounds surveys are available but GPS and drone surveying have been found to be eminently practicable – and equally precise - in remote and rugged terrain. Both traditional and so-called “modern” surveying result in printed plats showing centerline and road width on each side of centerline.
The next step is equally, if not more, important. Is the survey deposited under C.R.S. 38-50-101 or recorded pursuant to C.R.S. 38-35-109? Ogburn, Lovvorn or Wright (all Supra) do not specify. For reasons set forth in City of Lakewood v. Mavromatis 817 P.2d. 90 (Colo. 1991), the successful claimant for a public highway must elect to record, not deposit, the survey. C.R.S. 38-50-101 was first enacted in 1994. It establishes a county depository for all land survey plats constructed in accordance with the criteria set forth in C.R.S. 38-51-106. The depository agent may be either the County Surveyor or some other county official designated by the County Commissioners. Frequently, you will see the County Recorder as the designee.
Deposited surveys are not assigned a reception number, book or page. Instead, they are uniformly assigned an “S”. The purpose of depositing the survey is to “...provide survey data for two subsequent land surveys...” such as monumentation. C.R.S. 38-50-101(5)(a). However, the most important limitation of the deposit system is stated in Sec. 38-50-101(5)(b): “No plat deposited in accordance with this section shall constitute notice pursuant to section 38-35-109.”
C.R.S. 38-35-109(1) authorizes the recording of any written instrument “...affecting the title to real property....”. It includes the recording of certified copies of “...orders, judgments, and decrees of courts of record...” relating to real property. An unrecorded instrument: “...shall (not) be valid against any person with any kind of rights in or to such real property who first records and those holding rights under such persons....”. Sec. 38-35-109(1) establishes constructive notice to all the world of not only the existence of the recorded instrument but also the contents of that instrument. Goodman Associates, LLC v. Winter Quarters, LLC 292 P.3d. 1060, 1064 (Colo. App. 2012) Subsequent purchasers have an obligation to find the recorded instrument and are considered to have constructive notice of its content even if they do not locate it. Franklin Bank v. Bowling 74 P.3d. 308, 314 (Colo. 2003); Mesa County Land Conservancy, Inc. v. Allen 318 P.3d. 46, 56 (Colo. App. 2012) Having been officially recorded under C.R.S. 38-35-109, an exception to the Hearsay Rule allows the document to be admissible even though the declarant is available. C.R.E. Rule 801(14) and (15) (Documents affecting an interest in real property).
A certified copy of the recorded survey is considered self-authenticating and does not require testimony from the County Recorder. C.R.E. Rule 901(a)(7) and Rule 902(4)
Land survey plats do, in fact, affect interests in real property. C.R.S. 38-51-106(1)(b)(I) requires that the plat show “...all recorded and apparent rights-of-way and easements....”, unless the client has directed not to do so. The plat must also show “..all field-measured dimensions necessary to establish the boundaries on the ground....” both as existing or as may be laid out in new subdivisions of the land. C.R.S. 38-51-106(1)(c) A land survey, in other words, is merely a “picture” of the legal interests appurtenant to a parcel of land.
The existence, or non-existence, of recorded or apparent easements as well as the surface boundaries of the parcel are integral to the ownership and use of the subject property. In Mavromatis (Supra) the 1885 road petition duly qualified to create a public highway across Mr. Mavromatis’ property. However, the petition, including any map submitted therewith, was not recorded under C.R.S. 38-35-109.
Instead, it was merely “deposited” with the County Clerk. Mr. Mavromatis, then, was not subject to the historic, unsurveyed road because the petition was not properly recorded.
It is not simply important but, rather, critical that any survey of the land route adjudged to be a public highway be recorded and not simply deposited. Recording establishes constructive notice to all persons including those subsequent owners of the land(s) on which the public 3 highway is located. The recorded survey may thereafter be admitted directly into evidence without the necessity of call a foundational witness.