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June 30, 2016
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<br />"reasonableness" standard into the, non-interference language. Id. (emphasis added). The Objection Letter also
<br />omits the second part of the rule established by Riddell v. Ewell, which likewise considers the reasonableness of
<br />the interference. 929 P.2d 30 (Colo. App. 1996). The Objection Letter correctly notes that "on one hand, the
<br />Court stated that `if the width, length, and location of an easement for ingress and egress have been specifically
<br />and definitely set forth in the grant, the owner of an easement has the right to unobstructed passage over the
<br />entire area described in the grant."' Objection Letter, citing Riddell, 929 P.2d at 31. However, the very next
<br />paragraph in that decision goes on to state that "on the other hand, the owner of the servient estate continues to
<br />enjoy all the rights and benefits of ownership `consistent with the burden of the easement."' Riddell, 929 P.2d at
<br />32, citing Barnard v. Gaumer, 361 P.2d 778, 780 (Colo. (en banc) 1961). Although the Riddell case relates to
<br />the use of an easement by the dominant owner, it goes on to apply the same reasonableness standard in
<br />analyzing whether the use is permitted. Id.
<br />Several Colorado courts, along with the Objection Letter, have repeated the concept that "wherever there is
<br />ownership of property subject to an easement, there is a dichotomy of interests, both of which must be respected
<br />and kept in balance as nearly as possible." Id. at 31; Hornsilver Circle, 904 P.2d 1353. That dichotomy of
<br />balanced interests certainly requires consideration of the reasonableness of each parties' use, and the extent to
<br />which such uses unreasonably interfere with the use and enjoyment of the rights granted to the other parties.
<br />See, e.g., Riddell, 929 P.2d 30; Hornsilver Circle, 904 P.2d 1353; Osborn & Caywood Ditch Co. v. Green, 673
<br />P.2d 380 (Colo.App.1983); Byou Irrigation District v. Empire Club, 804 P.2d 175 (Colo.1991), cert. denied,
<br />500 U.S. 918 (1991). Indeed, the Restatement of Property states that where the language of the granting
<br />document is not precise, "the principle that the owner of the easement and the possessor of the servient tenement
<br />must be reasonable in the exercise of their respective privileges becomes more pronounced." Restatement
<br />(First) of Property § 486 (1944). The Objection Letter entirely omits the reasonableness component in its
<br />analysis, but instead cursorily concludes that any interference, no matter how slight or temporary in nature, with
<br />a grant of easement or right-of-way would be inconsistent with the terms thereof. Not only is this interpretation
<br />inconsistent with established Colorado case law, but it would also severely limit the servient owner's use of its
<br />property —not permitting any interference would effectively prohibit activities such as raising cattle on land
<br />burdened by an easement or right-of-way, for fear that a stray cow stops in the middle of the road for even a
<br />moment, or performing scheduled maintenance of the road itself, which would surely impede access thereon.
<br />As noted in Riddell, however, what constitutes a reasonable interference is a question of fact, meaning that a
<br />court will analyze the facts and circumstances of the interfering use to determine whether it unreasonably
<br />interferes with the dominant owner's use and enjoyment of its easement or right-of-way. Most Colorado case
<br />law addresses the reasonableness of the dominant owner's interference with the servient owner's rights, which is
<br />not particularly helpful with respect to the Mining Operations proposed to be undertaken by the servient owner.
<br />The court in Hornsilver Circle, however, found that the servient owner's construction of a home addition that
<br />cantilevered into the middle of the easement, combined with landscaping improvements that effectively raised
<br />the ground level of a portion of the easement area, effectively excluded the dominant owner from approximately
<br />one third of the easement at issue. 904 P.2d 1353. The court stressed the permanence of the improvements in
<br />ultimately finding that the building and landscaping improvements constituted an unreasonable interference with
<br />the dominant owner's access. Id.
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