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OTTENJOHNSON <br />ROBINSON NEFF+RAGONETTIPc <br />June 30, 2016 CORY M. RUTZ <br />303 575 7531 <br />CRUTZ@OTTENJOHNSON.COM <br />Colorado Division of Reclamation, Mining and Safety <br />1313 Sherman Street, Room 215 <br />Denver, Colorado 80203 <br />Attention: Amy Eschberger <br />Re: Application for Permit No. M2016010 <br />Dear Ms. Eschberger: <br />This firm represents Transit Mix Concrete Co., a Colorado corporation ("Transit Mix"), in connection with the <br />above -referenced application to commence mining gravel and other aggregate and certain other related activities <br />(collectively, the "Mining Operations") on certain real property located in the County of El Paso, State of <br />Colorado, and more commonly referred to as "Hitch Rack Ranch." This letter is being submitted on behalf of <br />Transit Mix in response to that certain letter from Carrie S. Bernstein dated April 18, 2016 (the "Objection <br />Letter"), with respect to the rights granted to certain owners of real property to the north and west of Hitch Rack <br />Ranch, including without limitation the Eagles Nest subdivision (collectively, "Permittees") over and across a <br />private right-of-way more commonly referred to as "Little Turkey Creek Road." Little Turkey Creek Road <br />generally follows the course indicated in red on the map included in the Objection Letter, a copy of which is <br />attached hereto as Exhibit A. Transit Mix has knowledge of five grants of private rights -of -way over Little <br />Turkey Creek Road, including the one relied upon by the Objection Letter, for access by the Permittees to and <br />from their respective properties (collectively, "ROWS"). Exhibit B summarizes the terms and conditions of each <br />of the documents granting the ROWS as such terms and conditions relate to the Mining Operations. For the <br />reasons more particularly set forth in the following paragraphs, and in contrast to the assertions in the Objection <br />Letter, the Mining Operations do not unlawfully infringe on the rights granted to the Permittees by the ROWS. <br />Colorado Law Permits "Reasonable" Interference <br />As noted in the Objection Letter, Colorado law provides that unless the grant conveying an easement or right-of- <br />way specifically characterizes the interest as exclusive, the grantor retains right to use property in common with <br />grantee. See, e.g., Hornsilver Circle, Ltd. v. Trope, 904 P.2d 1353 (Colo.App.1995). The Objection Letter also <br />appropriately cites Colorado law, which generally provides that "the owner of land subject to a right-of-way <br />may use the way for any lawful purpose, provided such use does not interfere with the right of passage resting in <br />the owner of the easement." Objection Letter, citing Schold v. Sawyer, 944 P.2d 683, 685 (Colo. App. 1997). <br />However, the Schold case continues to state, in a passage omitted by the Objection Letter, that "what may be <br />considered a proper use by the servient owner is a question of fact," and that where "there is no dispute as to the <br />boundaries of the easement, but other issues are present, including the question of what constitutes unreasonable <br />interference with the use of the easement," extrinsic evidence may be received, reading an implicit <br />950 SEVENTEENTH STREET SUITE 1600 DENVER COLORADO 80202 P 303 825 8400 F 303 825 6525 <br />OTTENIOHNSON.COM <br />