February 24, 2012

Disputed Elk Falls subdivision roads declared public
Judge’s order comes Feb. 21 after five-day trial in late January to early February

Mike Potter
Staff Writer

Roads are public

Fairplay-based District Judge Stephen Groome ruled on Feb. 21 that three disputed roads in the Elk Falls subdivision in northeastern Park County are public roads. The lawyer for Vera and Drayton Dunwody, the owners of the land around the roads and the building shown here, has indicated he expects an appeal of the decision. (Flume file photo)

Portions of three disputed roads in the Elk Falls subdivision in northeastern Park County were declared public roads on Feb. 21 in an order from Fairplay-based District Judge Stephen Groome, and the defendants’ lawyer in the case said he anticipates an appeal of the decision.

The move makes permanent an injunction issued by Groome in 2010 granting access to the subdivision by way of Juniper and Jenson roads and a portion of South Elk Creek Road.

The roads were claimed as private by Vera and Drayton Dunwody, owners of Lower Lake Ranch at Elk Falls. The couple purchased the ranch in 2008 from the Elk Falls Development Co., the entity that owned the sportsman’s club property.

The Dunwodys asserted ownership of a portion of some of the roads in 2010 when they placed boulders across a portion of Juniper Road, blocking access of that road.

The Elk Falls Property Owners Association fought back, filing a lawsuit asking the court to determine the status of the roads.

“This is something that we felt we deserved all along, and it appears that the correct decision has been rendered,” said Paul Vastola, president of the Elk Falls Property Owners Association.

In a 16-page order, Groome details how he came to his decision based on testimony and evidence presented over the course of five days of testimony.

“The facts of this case are voluminous, encompassing nearly 100 years of local history,” Groome wrote in his order.

The Elk Falls Property Owners Association argued that subdivision residents had a legal right to use the roads, and presented several theories in support of its position during the trial.

The Dunwodys argued that the disputed roads were never dedicated or granted by the owner of the land through which the disputed roads go, and that use of the roads was with permission.

According to Groome’s order, Colorado law provides for several ways that roads can become public roads.

“The most common method is by express dedication to a public entity by the landowner and an acceptance by that public entity,” said the order. “In this case, there was no evidence presented that the landowner, Elmer or Alice Berg, or their successors in interest, ever dedicated the disputed roads to Park County.”

Groome did find that a portion of South Elk Creek Road east of a gate referred to as the “West Gate” was public because it was freely used by the general public without interruption for well over 20 years.

Disputed roads

This map shows the area where the roads were recently declared public roads in a Feb. 21 order from Fairplay-based District Judge Stephen Groome. Portions of the roads in question are surrounded in a bold line outlining a parcel of land that juts north, just to the west of Block 1 on the map. (Courtesy map)

Groome also found that Elmer and Alice Berg, acting together, intended that the lot owners in Elk Falls Blocks 1 and 2 had a “right of way” to use Juniper and Jenson roads to access their lots.

Groome made that finding by examining “extrinsic evidence” in the interpretation of the former owners’ intentions for the roads.

“First, Elmer and Alice Berg acted in concert when they initially undertook the platting of Elk Falls Block 1,” said the order.

The plat map of Block 1 included two 50-foot rights of way that the Elk Falls POA argued gave an indication that the owners originally intended for the roads to be access points for all property owners.

“They jointly hired a professional land surveying company to survey the land, prepare the plat, and process its approval with Jefferson County. They also jointly retained [an attorney] to perform all of the associated legal work, including signing the final plat,” said Groome’s order. “Both Elmer and Alice Berg were copied on virtually all correspondence to and from their hired representatives, which included copies of the drafts of the Elk Falls Block 1 plats. The plats not only clearly show the disputed roads as right of ways, but also showed that the areas surrounding the disputed roads was owned by Alice Berg, not Elmer Berg.”

The Dunwodys argued that because Alice Berg owned the property in Block 1, and her husband owned the property across which the rights of way were granted, she lacked the legal authority to grant those rights of way.

However, Groome found that Elmer and Alice Berg “acted in unison in all respects, and effectively treated all of the subject property as being jointly owned.”

The Dunwodys argued that since the Elk Falls Block 1 plat was never recorded in Park County, they and their predecessor in interest, the Development Company, were not on constructive or recorded notice of the existence of the disputed roads being created as rights of ways.

According to Groome’s order, “The Dunwodys do not dispute that, at the time of their purchase, they had actual notice of the existence of the disputed roads being used by Elk Falls property owners to access their property. ... However, they argued that the plaintiffs have not met their burden of proof to establish that the Development Company had constructive or actual notice; and that under the ‘shelter rule,’ the Dunwodys become bona fide purchasers without notice by ‘stepping into the shoes’ of the Development Co.” Groome found that the record contains enough evidence to establish that the Elk Falls Development Company had constructive notice, and that the Dunwodys were not bona fide purchasers pursuant to the shelter rule.

“I am obviously disappointed, and I anticipate that there will be an appeal,” said Victor Boog, the attorney for the Dunwodys.

According to Groome’s order, there is a window of 15 days to request a reconsideration of the decision by the judge, but Boog doubted that such a request for reconsideration would be sought.

Boog said there is also a 45-day period in which to file a notice of appeal.

“I think we’ll file a notice of appeal long before that,” Boog said. “Unfortunately, this case is going to go on to the next level.”

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