2016-04-18_PERMIT FILE - M2016010 (13)

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Alderman Bernstein April 18, 2016 Page 3 Legal Analysis Colorado law very clearly prohibits the servient estate holder(here the owners of Hitch Rack Ranch and its tenants) to change the use of the servient estate of the private road to facilitate the proposed granite quarry operation. Here, Little Turkey Creek Road is a private road that is a non-exclusive easement, meaning that the holders of the easement (aka dominant estate holders (Eagles Nest subdivision owners including Ms. Kimble)) and the owner of the land burdened by the easement (aka servient estate holder (Hitch Rack Ranch owner& its tenants)) both "have rights to use the property." City of Aurora v. AC./P'ship, 209 P.3d 1076, 1086 (Colo. 2009); Lazy Dog Ranch v. Telluray Ranch Corp., 965 P.2d 1229, 1238 (Colo.1998). However, the servient owner's rights to use the burdened land are limited by the nature and extent of the easement-holder's rights. City of Aurora, 209 P.3d at 1086; Bijou Irrigation Dist. v. Empire Club, 804 P.2d 1751 183 (Colo.1991). The owner of the servient estate, the Hitch Rack Ranch owner in this case, retains only the right to use the non-exclusive easement for purposes that are consistent with the rights of the easement holder and that do not unreasonably interfere with the dominant estate. City of Aurora, 209 P.3d at 1086; Bijou Irrigation Dist., 804 P.2d at 183;Lazy Dog Ranch, 965 P.2d at 1238. Clearly,Transit Mix Concrete Company's interference with the easement (Little Turkey Creek Road)to operate its granite quarry operation is inconsistent with the rights of the dominant estate holders set out in the Decree and unreasonably interferes with the dominant estates (the Kimble Property and all other properties within the Eagles Nest subdivision). The Colorado Court of Appeals in Riddell v. Ewell, 929 P.2d 30, 31-32 (Colo. App. 1996) analyzed the respective rights of the dominant and servient estate holders with respect to an easement for ingress and egress. The Court stated: "Whenever there is ownership of property subject to an easement, there is a dichotomy of interests, both of which must be respected and kept in balance as nearly as possible." 929 P.2d at 31; Hornsilver Circle, Ltd. v. Trope, 904 P.2d 1353 (Colo.App.1995). On one hand, the Court stated that "if the width, length, and location of an easement for ingress and egress have been specifically and definitely set forth in the grant, the owner of an easement has the right to unobstructed passage over the entire area described in the grant." 929 P.2d at 31. In Schold v. Sawyer, 944 P.2d 683, 685 (Colo. App. 1997), the Colorado Court of Appeals stated that the servient estate holder"subject to a right-of-way may use the way for any lawful purpose, provided such use does not interfere with the right of passage resting in the owner of the easement." The Application states that there will be closures of Little Turkey Creek Road during blasting operations for approximately 30 minutes if such blasting operations are successful. In the event that there are problems with the blasting, Little Turkey Creek Road would be closed indefinitely, and until it is safe for travel. First, such activities clearly violate the dominant estate holders' easement rights expressly set out in the Decree and constitute a breach of the court decree and breach of the private road easement. The Decree specifically states that the