CONFLICTING PRESUMPTIONS Adverse Use and Permissive Use

© 2021 James A. Beckwith

In cases involving historic roads, the parties and the court are often confronted with large time periods during which the public traveled over the land route at issue.  The surface character of the road and its appearance may clearly and unquestionably indicate continuous travel over its surface by vehicles of one form or another.  Yet, all persons who traveled the road. and predecessors in title to the servient estate, are dead and unavailable to testify as to permissive or adverse use.  

In these circumstances, Colorado has adopted two countervailing presumptions arising from travel over the landowner’s parcel.  On the one hand, Simon-by-Simon v. Pettit 651 P.2d. 418 (Colo. App. 1982), held that travel over open, vacant and unenclosed land is presumed to be permissive.  This is a rebuttable presumption.  L.R. Smith Investments, LLC v. Butler 378 P.3d. 743, 747 (Colo. App. 2014)  It is also a presumption not frequently favored in those decisions involving public highways.  In Woodbridge Condominium Association, Inc. v. Lo Viento Blanco, LLC 2020 WL 939236 (Colo. App.; February 27, 2020) certiorari granted on other grounds 2020 WL 5405376, the court discounted the Simon v. Pettit rule because the servient estate was not “vacant”.  It had landscaping, signage and a roadway: which the court construed as improvements.  (Id. Fn. 11) Similar rulings have been made in Durbin v. Bonanza Corp. 716 P.2d. 1124, 1129 (Colo. App. 1986); in State Dept of Natural Resources v. Cyphers 74 P.3d. 447, 451 (Colo. App. 2003) and in Bd. of Cty Comsrs, Garfield County v. W.H.I  992 F.2d. 1061, 1066 (10th. Cir. 1993)  In these decisions, the courts concluded the lands were not “vacant and unoccupied” citing evidence of fencing, livestock grazing, irrigation, crop cultivation, and residences (log cabins) being or having been on the property. Moreover, in Lobato v. Taylor 71 P.3d. 938 (Colo. 2002), the Supreme Court approved prescriptive easements over vast swaths of vacant and unfenced land.

On the other hand, where the public has used a prescriptive route without explanation for more than the 20-year period, then it is rebuttably presumed that the use was adverse and not permissive.  Durbin (Supra); Gleason v. Phillips 470 P.2d. 46, 48 (Colo. 1970); Trueblood v. Pierce 179 P.2d. 671, 677 (Colo. 1947); Allen v. First Nat. Bank of Arvada 208 P.2d. 935, 940 (Colo. 1949); W.H.I (Supra); Cyphers (Supra); Irvin v. Brand 690 P.2d. 1283, 1284 (Colo. App. 1984); Auslaender v. MacMillan 696 P.2d. 836, 838 (Colo. App. 194) This presumption applies to both public and private prescriptive easements.  L.R. Smith Investments, LLC v. Butler 378 P.3d. 743, 747 (Colo. App. 2014)  In the context of this presumption, “without explanation” means the absence of recorded easements or other documents (including court judgments) expressly authorizing the travel.

The presumption of adversity is predominant.  The presumption arises upon proof that the road has been used for more than the prescriptive period.  (LR Smith, Supra) The landowner may then present evidence to overcome the presumption, such as by showing the use was permissive.  If the landowner fails to overcome the presumption of adversity, then the court must order that a prescriptive easement exists.  (Id.)  Thus, the Simon presumption is a defense to a claim of prescriptive easement and is not an offensive tool in the attorney’s “quiver”.  It is the servient estate owner who bears the burden to prove permissive use.  Woodbridge (Supra) citing Trueblood and Durbin (Supra); Brown v. Faatz 197 P.3d. 245, 250 (Colo. App. 2008); Restatement (Third) of Property; Servitudes
§2.16 cmt g.

C.R.E. Rule 301 and F.R.E. Rule 301, governing presumptions, use differing language to achieve the same result.  The party against whom a presumption of fact is directed has the burden of producing evidence to rebut the presumption: i.e., the burden of going forward.  Krueger v. Ary 205 P.3d. 1150, 1154 (Colo. 2009)  In both rules the burden of persuasion (a/k/a burden of proof) does not shift.  Generally, the federal rule applies in federal court trials.  F.R.E. Rule 302.  However, when state law governs the rule of case decision (as it does here) then the state rule, not the federal rule, governs the effect of a presumption.  (Id.)  Thus, in cases involving historic public roads, we analyze the presumptions of permissive vs. adverse use under Colorado law.

A party raises a rebuttable presumption when he or she introduces certain facts into evidence.  In re Estate of Fritzler 413 P.3d. 163, 169 (Colo. App. 2017)  The two presumptions discussed here are mandatory rebuttable presumptions.   Kreuger v. Ary 205 P.3d. 1150, 1154 (Colo. 2009); People v. Hoskin 380 P.3d. 130, 134 (Colo. 2016).  That is, upon proof of a “predicate” fact (e.g., vacant property or travel for 20+ years) the presumption of permissive or adverse use arises.  The burden of going forward shifts.  The party against whom the presumption is asserted must dispel the presumption by competent evidence   If he fails to do so then the presumption becomes conclusive fact and judgment may be entered (assuming all other elements are satisfied).  But dispelling the presumption does not lead to immediate judgment:   

“… if the defendant successfully rebuts the statutory presumption … then the presumption of unreasonableness disappears, and the fact-finder must then determine whether or not the People have established (from existing evidence)… that the defendant’s speed was unreasonable…”.  

380 P.3d. at Pg. 134; see also 

The opponent of the rebuttable presumption must then present “…evidence legally sufficient to meet the burden of going forward (or) the presumption can no longer establish a presumed fact as a matter of law…” Kreuger (Supra at Pg.1156)  Presumptions are not evidence and they are not facts.  Union Pacific R. Co., Inc. v. United States 524 F.2d. 1343, 1382 (U.S. Ct. Clms). 1975);  Lynn v. Cepurneek 508 A.2d. 308, 312 (Penn., 1986  Thus, a party against whom a rebuttable presumption is made cannot dispel that presumption by another presumption.  The party must present specific competent evidence contradicting the predicate fact upon which the original presumption was based.  Stated more simply, the servient estate owner must present admissible evidence of express consent.

This is particularly true in the context of the Simon presumption.  The presumption is that travel over vacant land has been without objection and, therefore, is “permissive”.  However:

“…acquiescence or silence with respect to a claimant’s use of the property does not constitute permission to use the property and thus does not dispel the presumption of adversity.”

LR Smith 378 P.3d. at 747

See:   Upper Eagle Valley Sanitation Dist. v. Carnie 634 P.2d. 1008, 1009 (Colo. App. 1981); Auslaender v. MacMillan 696 P.2d. 836, 838 (Colo. App. 1984)  Accordingly, the opponent of the Presumption of Adversity must dispel the presumption through actual evidence of granted easements, license or verbal permission or other specific factual averments to establish actual permission.  

In some scenarios, the court may dispense with all presumptions in toto.  This can occur when the court, by virtue of its inherent authority, determines that the presumption of adverse use and the Simon presumption are in conflict.  Proof of one presumption cancels the other presumption.  In such situations the trial court has two alternatives, although Colorado, to date, has not rendered a specific decision.  First, when two presumptions are of equal weight, then the presumptions disappear and the court weighs the evidence with all other relevant facts giving no effect to the presumptions.  Lynn v. Cepurneek 508 A.2d. 308, 312 (Penn., 1986); Turro v. Turro 120 A.2d. 52, 55 (NJ, 1956).  Second, if one presumption rests on substantially stronger public policy than the other then the stronger presumption displaces the weaker one and stands alone in the action.  Turro 120 A.2d. at 55  

The Presumption of Adverse Use appears to be the substantially stronger public policy than the Simon Presumption.  Certainly, the Presumption of Adverse Use has received more application, and vindication, than Simon.  The Presumption of Adverse Use is grounded on clear facts involving public action observable by landowners and government officials.  The public has traveled a particular land route for more than twenty years under some claim of right and, importantly, presently continues travel over that route without any intention to cease such travel.  This is repetitive, long standing public conduct that cannot be ignored by the court.   

By contrast, the Simon presumption is based upon a loose and disingenuous assumption of fact.  Since the parcel of land is vacant and unoccupied, then the landowner is consented to anyone driving, walking or riding horses or ATV’s across the property.  This presumed “consent” has been given even when the landowner, himself, is totally absent from the property.  The Simon presumption is thus in direct conflict with the tort doctrine of Trespass.  One commits the strict liability tort of Trespass simply by entry upon the property of another without the consent of the person entitled to possession of that property.  Hoery v. United States 64 P.3d. 214, 217 (Colo. 2003)  The entry can occur either by the direct action of a living person or by that person allowing some object or element to enter the property (such as toxic contaminants).  (Id.)  The trespass can be one instance or being a continuing tort.  (Id.)

  The practitioner of historic road law should therefore be cautioned against raising the Simon presumption as the sole basis by which a claim of prescriptive easement (whether public or private) is made.  The presumption of adverse use is stronger and more dominant than the Simon presumption.  Asserting the Simon presumption may avoid a motion to dismiss but it will not result in a final judgment in favor of the party asserting the Simon presumption.

James A. Beckwith