Horse Gulch Blog

Watchdogging for the greater Durango area

20 Nov 2017

Court order gave prescriptive easement for public right-of-way on Falls Creek Road

Posted by Adam Howell


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A married couple that owns a bike shop and a land-locked parcel by Falls Creek is defying a court-ordered prescriptive easement to open a public roadway on their property to the general public.

IMG_1471[1]Ed and Patti Zink currently own two Falls Creek parcels on the hill between Hidden Valley and Animas Valley by County Road 203 of around 41 acres.

Many people know the Falls Creek Road as a trail. Because of its unimproved nature, it’s been a while since four-wheeled vehicles have driven on it.

In addition to the Zink’s signage asking the general public to stay off of the Falls Creek Road, they are also asking the Durango community to rally behind their request to the Forest Service to buy their 30-acre parcel for conservation purposes.

If the San Juan National Forest won’t buy their land, they will try to sell it to the highest bidder, they said. A private owner could potentially bulldoze a road across Forest Service land to their conservation-easement-protected piece of land after an Environmental Assessment is done, said Patti Zink.

Building a home on the property could also be difficult from County Road 203, due to the steep hill next to it. The county’s driveway standards prohibit driveways that are greater than 12% grade, without a waiver from the Public Works Director.

Once the owners get permission to build a developed driveway to the bigger parcel, they could also build a mansion there, according to the terms of the conservation easement.

A listing of the property could not be found on either the Wells Group website or the Zillow website on November 19th.

Meanwhile, the public has no way to access the Hidden Valley Archaeological Area on Forest Service land from County Road 203 without knowing that the signed closure of the Falls Creek Road is groundless in law.

Un-interupted public use of Falls Creek Road prior to 1979 closure

Leading to and from Ed and Patti Zink’s land that overlooks pristine waterfalls and the Animas Valley, the Falls Creek Road has been known for at least 119 years as providing travel connectivity between Hidden Valley and County Road 203.

Tract 1, 10.04-acre parcel, Ed and Patti Zink

Zink’s 10.04-acre parcel, Tract 1, is the western lot on the left side of this map. Their 30-acre parcel is directly to the north of Tract 1. Map courtesy of La Plata County GIS Department.

Under Colorado Revised Statute 43-2-201(c), roads over private lands that have been used adversely without interruption or objection on the part of the owners of such lands for twenty consecutive years shall be declared a public highway.

Falls Creek Road had been used without interruption or objection for at least twenty years, according to a court ruling in 1979.

The road starts at the bottom of the hill at 3911 County Road 203 on Michael and Johnna Bronson’s property. Michael Bronson declined to comment for this story.

Before the Bronson’s bought the property at the bottom of the Falls Creek Road, someone had put up a gate there at the entrance. Ed Zink’s sister, Ida Kolb, used to own the Bronson’s parcel, where she lived.

Judge declares road a public right-of-way through adverse use

Kolb, who was Ed Zink’s sister, had a neighbor next door named Oscar Sittner.

In 1979, Sittner decided to build a barricading fence across Falls Creek Road on Kolb’s property, according to a civil court complaint that Kolb’s dad filed on their behalf.

Sittner’s fence prevented Kolb’s dad, John Zink, from accessing their property up on the hill, where they needed to go to perform maintenance on their reservoir, the complaint said.

“That because of the heavy amount of snow accumulation, Plaintiffs need to get immediate access to their property which contains a reservoir, so that reservoir may be cleaned, maintained and worked upon to prevent the possible collapse thereof and prevent the flooding of downstream properties as well as ready same for the flow of water during irrigation season,” the complaint says.

“Plaintiffs herein will suffer damages by reason of Defendants’ refusal to allow Plaintiffs the use of Falls Creek Road, in that said Plaintiffs will be unable to gain access to their lands in order to maintain the reservoir thereon, which might cause damages to downstream property owners and subjecting said Plaintiffs to the possibility of lawsuits being filed against them,” the complaint says.

In response, the judge presiding over the case ruled the road a public right-of-way through its adverse use. He said that access to the road had been provided, without interruption or objection for 20 consecutive years, citing C.R.S. 43-2-201 (1) (c).

John Zink won the lawsuit, and the defendant’s Sittner and Nicks were ordered to open the road to the public and pay the court costs.

As a result of the court order that came out of John Zink’s civil complaint, the “public roadway” that’s open to the “general public” as a “public right-of-way,” was reaffirmed and acknowledged in court case documentation using the word ‘public’ as the common adjective.

Sittner was ordered to pay for the court costs, expert witness fees, as well as the work that John did with a backhoe to remove Sittner’s fence, court records show.

Neighbors signed public road easement following court order

Falls Creek Easement that grants a public road easement to Falls Creek Road. Drafted on July 21, 1979, immediately after the court ordered the presecriptive easement for the road.

Document courtesy of a La Plata County official.

‘Private Property Access Restricted’ sign posted on road defies court order

Falls Creek Road was likely reopened to the public, thanks to a judge’s response to John Zink’s complaint.

The signs on this gate were put there by Ed and Patti Zink, according to Patti Zink.

The signs on this gate on the Bronson’s property were put there by Ed and Patti Zink, according to Patti Zink.

Twenty three years later, pedestrian traffic on the road has increased.

Since then, Ed and Patti have experienced people disrespecting them and their Falls Creek property.

That’s why the Zink’s are posting threatening signage on Falls Creek Road.

Ironically, the Zinks are now using ‘private property’ signage to keep the public off of Falls Creek Road, which Judge Emigh declared a public roadway in response to Ed’s dad’s complaint in 1979.

A “Private Property Access Restricted” sign at the trailhead on County Road 203, as well as the “No Trespassing Hunting or Fishing Violators Prosecuted Under Penalty Of Law” signs at Falls Creek Road’s intersection with their property were installed by Ed and Patti Zink, said Patti Zink.

Patti said that they also installed another sign where Falls Creek Road intersects with their land stating the following:

IMG_1470[1]“The National Forest land has ended and private property has begun. Please do not trespass. The website saying that this land is open to the public is incorrect,” the sign says. “Security cameras are in use. Thank you.”

In contrast, the ruling from Judge Frederic Emigh stated that the public road going across the Kolb’s property, just below the Zink’s, should not be barricaded, nor should the people using it be harassed.

As for the road’s jurisdictional status, the County does not see it as an official county road, said Megan Graham, the County’s Public Affairs Officer.

IMG_1472[1]

Patti Zink does not want this story to run

While Ed Zink had implied in a Durango Herald story that Falls Creek Road is private, Patti Zink told me the opposite.

Just before Patti Zink kicked me out of her house for asking her questions about the status of Falls Creek Road, she deterred me from running a story about the road.

“I’m not going to answer any questions about the public road,” said Patti Zink.

“Doing a side story about whether or not that’s a public road will do nothing to help the community to come together to buy this,” she said.

“In the last five years we’ve had vandalism, people messing with the water diversion, there have been fire pits done up there,” she said. “Do we want the land above our house that we’ve let the public use cause a fire that takes down our neighbors houses? No, we sure don’t.”

The ‘No Trespassing’ signage along the road may come across as confusing when given the context of the judge’s ruling that Falls Creek Road is a public right-of-way.

“These signs have been up here for fifteen years,” she said. “Never have we asked anybody to come off the land. Never have we prosecuted anybody or said you’re trespassing.”

Even if their 30-acre parcel ends ups in the hands of the Forest Service, the Falls Creek Road still crosses over the Zink’s 10.04-acre parcel, leaving the question of whether the ‘Private Property Access Restricted’ campaign on behalf of the Zinks would continue.

Groundless access restrictions of two conservation easements

Adding to the confusion of whether the public is allowed on the Falls Creek Road is the existence of two conservation easements for the parcels owned by the Zinks, which attempt to restrict the public’s access to the road. The conservation easements were created 11 years after the judge ordered the roadway right-of-way to be reopened to the general public.

“Nothing contained herein shall be construed as affording the public access to any portion of the land subject to this Easement,” the conservation easements say.

A conservation easement for the 10.04-acre parcel (Reception #509713) says that the owners shall preserve its wildlife and recreational uses. The conservation easement deeds also do not acknowledge that the property had a road or trail running across it, despite its existence on La Plata County maps, San Juan National Forest maps and USGS Topographic Quadrangle maps dating back to 1898.

Baseline documentation for the conservation easements could help determine why they attempted to restrict the public from accessing the public roadway right-of-way, or why the road was not mentioned in the conservation easements.

This blogger was unable to obtain the baseline data for the conservation easements because Amy Schwarzbach, Executive Director for La Plata Open Space Conservancy, said that the baseline documentation for conservation easements are not public record, and would not provide it.

Ed Zink said that the conservation easements on the two parcels of land that him and his wife currently own were established by other people.

“The 11 acre parcel by my parents, and the 30 acre parcel by my sister, all of which are passed away now,” said Zink. “Both conservation easements were done several years before we became the owners and we were not involved in the process in any way.”

“I do not recall ever seeing the “Baseline Documentation Reports” for either parcel,” he said.

Additionally, no baseline data on the property is available through the La Plata County Clerk and Recorder’s office.

If the Zinks or any future owner of their land want to amend the groundless access restrictions of their conservation easements, a request to La Plata Open Space Conservancy to amend it could cost $1,000 dollars, according to their written policy.

Conservation Easement for the Zink’s 11-acre property: reception number 509713

Conservation Easement for Ida Kolb’s old 30-acre parcel, now belonging to Ed and Patti Zink: reception number 604730, CLICK HERE.

La Plata County tax maps

ScreenHunter_131 Nov. 21 20.24

Map of Falls Creek Road easement from 1997. Courtesy of La Plata County GIS Department and Elizabeth Dufva.

Map courtesy of La Plata County GIS Department and Elizabeth Dufva.

Map courtesy of La Plata County GIS Department and Elizabeth Dufva.

La Plata County Map from 1980. Courtesy of La Plata County GIS Department.

La Plata County Map from 1981. Courtesy of La Plata County GIS Department and Elizabeth Dufva.

ScreenHunter_127 Nov. 21 20.21

Map of Section 28 from 1968. Courtesy of La Plata County GIS Department and Elizabeth Dufva.

Relevant deeds and court order for prescriptive road easement–Click documents below

Court records, click below:
Lawsuit between John Zink and Oscar Sittner, Judgement and Court Order. Reception Number 433516

Lawsuit between John Zink and Oscar Sittner with Complaint, Motion for Default, and Order for Default

Old deeds with non-exclusive easement, click below:
Benson Property_easement
Kolb Deed (Zink)_OCR
Swanson Deed and Easement from Zink, 1972, reception number 369482
Sanine Deed (Van den Berg) Benson. Reception Number 421622
Van den Berg Deed (Zink) Deed. Reception Number 384258

Newer deeds, click below:
Personal Representative’s Deed to Michael and Johnna Bronson’s property, 2016, reception number 1114776, CLICK HERE

Swanson Beneficiary Deed to Musil Burris, (easement noted), 2012,reception number 1046603, CLICK HERE
General Warranty Deed to Ed and Patti Zink, from Ida Kolb, 2005, reception number 920090
Deed to Ed Zink from Ruby Zink, reception number 675208
Deed of Trust to Ed Zink, from John and Ruby Zink, reception number 675209

Bargain and Sale Deed, Ed Zink, 2014, reception number 1087391

Supplemental affidavit for title to Grace Swanson’s property, 2012, reception number 1045992
Deposit Plat 2815 for Ed and Patti Zink's parcels

State law prohibits closure of public highways extending to public lands

C.R.S. 43-2-201.1

COLORADO REVISED STATUTES
*** Current through all laws passed during the 2017 Legislative Session. ***
TITLE 43. TRANSPORTATION
HIGHWAYS AND HIGHWAY SYSTEMS
ARTICLE 2.STATE, COUNTY, AND MUNICIPAL HIGHWAYS
PART 2. COUNTY AND OTHER PUBLIC HIGHWAYS
C.R.S. 43-2-201.1 (2017)
43-2-201.1. Closure of public highways extending to public lands – penalty

(1) Any person, other than a governing body of a municipality or county acting pursuant to part 3 of this article, who intentionally blocks, obstructs, or closes any public highway, as described in section 43-2-201, that extends to any public land, including public land belonging to the federal government, thereby closing public access to public lands, without good cause therefor, commits a class 1 misdemeanor and shall be punished as provided in section 18-1.3-501, C.R.S.

(3) Any peace officer of this state, as described in section 16-2.5-101, C.R.S., has the authority to enforce the provisions of this section.

Map of Falls Creek Road with La Plata County tax map overlay

Map courtesy of La Plata County GIS Department.

Map courtesy of La Plata County GIS Department.

A USGS map of the Durango area from 1898.

A USGS map of the Durango area from 1907.

A USGS topo map of the Durango area from 1908.

Definitions

Adverse Possession, as defined by Law Dictionary, Fifth Edition, Steven Gifis:

A method of acquiring complete title to lands as against all others, including the record owner,, through certain acts over an uninterupted period of time, as prescribed by statute. 13 So. 2d 649, 650; 502 P. 2d 672, 682; 226 S.W. 2d 484, 486. It is usually prescribed that such possession must be actual, visible, open, notorious, hostile, under claim of right, definite, continuous, exclusive etc. 138 So. 2d 696, 699; 71 A. 2d 318, 320. The purpose of such requirements is to give notice that such possession is not subordinate to the claims of others. 244P. 2d 582, 584. Possession by a mortgagor is not generally considered to ripen into title through adverse possession because it is not notorious or hostile. 9 N.W. 2d 421, 426.

Colorado Revised Statutes, 2015, Title 43, Public Highways, page 104:

43-2-201. Public highways. (1) The following are declared to be public highways: (a) All roads over private lands dedicated to the public use by deed to that effect, filed with the county clerk and recorder of the county in which such roads are situate, when such dedication has been accepted by the board of county commissioners. A certificate of the county clerk and recorder with whom such deed is filed, showing the date of the dedication and the lands so dedicated, shall be filed with the county assessor of the county in which such roads are situate. (b) All roads over private or other lands dedicated to public uses by due process of law and not heretofore vacated by an order of the board of county commissioners duly entered of record in the proceedings of said board; (c) All roads over private lands that have been used adversely without interruption or objection on the part of the owners of such lands for twenty consecutive years; (d) All toll roads or portions thereof which may be purchased by the board of county commissioners of any county from the incorporators or charter holders thereof and thrown open to the public; (e) All roads over the public domain, whether agricultural or mineral.




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6 Responses to “Court order gave prescriptive easement for public right-of-way on Falls Creek Road”

  1. Great article! It will be interesting to see how it develops. I appreciate your research.

     

    Rebecca

  2. Thank you, Rebecca. I’m glad that you got something out of it.

     

    Adam Howell

  3. TRUE LOCAL JOURNALISM

    Thank you for all your efforts and time!

     

    CWA

  4. It’s my pleasure. This one only took 178 revisions.

     

    Adam Howell

  5. thank you for this reporting! for those of us living on 203, that access trail is all we’ve got – all the public land on the west side of the animas valley is otherwise buffered by private land.

     

    HMH

  6. You are welcome. Please let me know if you or anyone you know has been verbally harassed for using Falls Creek Road.

     

    Adam Howell

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