Horse Gulch Blog

Watchdogging for the greater Durango area

21 Dec 2017

‘General public’ hiker confronted by Kristi Zink at Falls Creek Road off County Road 203

Posted by Adam Howell


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Rhonda Brown was minding her own business one day where she parked along County Road 203 at the entrance to Falls Creek Road. She was leashing up her dog, getting ready to go on a hike up the public roadway that’s known to many locals as a trail.

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This gate with restrictive signage on it was removed from its hinges after people learned that Falls Creek Road is open to the general public.

A local resident named Kristi Zink drives up, rolls down the window, and tells Brown that she cannot hike there, because it’s private property, said Brown.

Brown, who’s been hiking the road for twenty years, said that she told Zink that she was given permission from the Swansons to hike on the road and trails on the Swanson’s land.

Zink says ok, and then starts to drive off. A couple seconds later, Zink stops, puts the car in reverse, and comes back to ask Brown not to park there, as it draws too much attention, Brown said.

“I said, ‘ok, have a nice day,'” said Brown. “I just left my car.”

Brown then ignores Zink’s request, leaves her car in the right-of-way and then goes hiking, Brown said.

“She definitely confronted me, and also she had called because I had my business number on the car and she had told me that I can no longer hike up there,” said Brown. “And I asked if I can meet with her, and maybe she can meet me, and my mom likes to hike up there and meet her. Maybe we can have permission to stay on the road and we don’t ever mess with the irrigation or throw rocks at people or anything. But she declined to do that.”

Before that interaction, Zink had contacted Brown by text message to let her know that she could not travel on the road.

“Hello Rhonda. I’m sorry but you and your mother will no longer be able to use our property. Everyone is asking for special permission and we have to draw the line somewhere. Ours will now only be open to family. I’ll look the other way if u want to go up one last time. It will probably take us and the other landowners a while to change the signs at the gate. We will begin prosecuting trespassers and we currently have security cameras up there on our property which is the majority of that road. There are lots of public land in this area so I would greatly appreciate if u took advantage of that and not private property.  Thanks for your understanding. Kristi.”

Kristi Zink declined to return my phone calls requesting comments for this story.

Meanwhile, threats made towards people using the road could be misleading, given that Falls Creek Road was designated as a public roadway that’s open to the general public, by a district court judge in 1979.

History of Falls Creek Road as a public roadway

Falls Creek Road is a popular connector for people that use it as an access route from County Road 203 to the Church Camp Trails and Falls Creek Archaeological Area of the San Juan National Forest.

IMG_1570[1]It is basically an unimproved road that people mostly use as a trail.

A district judge ordered Falls Creek Road open to the general public in response to a 1979 civil court complaint that was filed by John Zink.

It’s legal status as a public roadway was recently challenged by John’s son, Ed Zink, in a Durango Herald article where he said that the word ‘public,’ was nebulous, and that a public right-of-way could apply to a select number of people.

Neither Zink or the The Durango Herald story acknowledged that the court order specified that Falls Creek Road is open to the general public.

In 1979, neighbors whose property the road crosses had signed an easement agreement with the Zink's parents, stating that they would grant the public a 60-foot wide easement across their properties.

They signed it right after the court order of 1979, which said that Falls Creek Road was open to the general public as a roadway.

I was unable to find a recorded version of the easement agreement, but a copy of the document is embedded as a link into this story.

Zink’s neighbors objected to driveway improvements

In early May of 2008, Ed and Patti Zink invited their neighbors over for a meeting to talk about their thoughts and future plans for accessing their 30-acre parcel up on the hill.

IMG_6203Afterwards and over the next two months, the neighbors wrote letters that the Zinks included with their road application to the Forest Service stating that they would prohibit the Zinks from improving the road across their properties to access their land above.

Without permission to improve the road, the Zinks then had a way of stating in their road application as to why alternative routes were not selected, which was because the neighbors denied them access.

In reality, the denial letters from the neighbors had questionable legal grounding based on the non-exclusive easement that was written into the deeds of two of those same neighbors.

Plus, Judge Emigh’s 1979 court order granted the public roadway open to the general public. As such, what legal grounds did the neighbors have to say that the roadway couldn’t be improved?

Emigh’s court order, as well as the non-exclusive easement on Falls Creek Road, were not mentioned in the application that the Zinks submitted to the Forest Service 29 years later.

Six years after the Zinks submitted their road application in 2008, the Forest Service sent out a scoping cover letter to get public comment on the Proposed Action to issue a Special Use Permit for the driveway.

Mysteriously, the 1979 court order, as well as the deeds with the non-exclusive easement were also missing from the list of issues already identified in the scoping cover letter.

Neighbor’s driveway improvement objections contradict non-exclusive easement in five deeds

Letters that the neighbors wrote to the Forest Service for the Zink’s road application also appear to directly contradict the non-exclusive road easement that’s written into the property deeds for the neighbor’s parcels that Zink’s driveway would need to cross.

This sign was nailed to a cottonwood tree that had fallen over by Falls Creek Road. The sign appeared to be on the Zink's 30-acre parcel.

This sign was nailed to a cottonwood tree that had fallen over by Falls Creek Road. The sign appeared to be on the Zink’s 30-acre parcel.

Both Robert Swanson and Karen Benson had objected to the Falls Creek Road being upgraded for the purpose of a driveway that the Zinks could use to access their property on the hill, despite the non-exclusive easement across their properties that appeared to suggest otherwise.

The Sanines used to own the parcel that Benson later bought. When the Sanines owned it, a non-exclusive easement was written into the deed.

Here are some excerpts of the earlier deeds that may have effected the parcels that Falls Creek Road crosses over, given that non-exclusive easements stay with the property, not the owner:

“Together with all the right, title and interest of the beneficiary in and to a non-exclusive easement for a road known as “Falls Creek Road” commencing a point in Primary La Plata County Highway designated as No.2 and crossing the above described tract; but subject to said easement as it crosses above tract,” says the Van Den Berg to Zink Deed.

“Except general taxes for 1978 and subsequent years and except easements, rights-of-ways, restrictions and reservations of record, in any. EXCEPTING also a non-exclusive easement for a road known as “Falls Creek Road” as referred to in Instrument recorded April 22, 1974 under Reception No. 384258,” said the Van Den Berg to Sanine Deed.

“It is the intention of the parties of the first part to create an access roadway connecting old U.S. Highway No. 550 to the roadway commonly known as Falls Creek Road and to confirm unto parties of the second part the right to use said Falls Creek Road. SUBJECT to a non-exclusive easement and right-of-way for a road not exceeding 30 feet in width as laid out and constructed and commonly known as Falls Creek Road,” said the Ruby Zink-to-Swanson Deed.

“A non-exclusive easement and right of way for a road not to exceed thirty feet in width lying along the south boundary line of the following tract of land: [meets and bounds legal description] It is the intention of the parties of the first part to create an access roadway connecting old U.S. Highway No. 550 to the roadway commonly known as the Falls Creek Road and to confirm unto parties of the second part the right to use said Falls Creek Road,” said the deed from Don and Ida Kolb to John and Ruby Zink. Reception 369770

“Subject to easements and rights of way for all existing roads, highways, pipelines, and utilities, and particularly the Falls Creek Road as constructed over, through and across said premises as described in Deed recorded March 3, 1972 as Reception No. 369482,” said the Sittner-Harding Warranty Deed.

To this day, the San Juan National Forest continues to weigh the issues effecting the Zink’s road application, as well as the Zink’s request for the agency to buy their 30-acre parcel.

Even if the 30-acre parcel ends up becoming public land, the Zinks could continue to claim that anyone on Falls Creek Road that’s crossing their adjacent parcel is trespassing.

Anyone who is threatened for using Falls Creek Road is advised to call the Sheriff’s office immediately, and have them file a police report. Their number is (970) 385-2900.

Adam Howell is an advocate for trails and mountain bike access. He can be reached by clicking on this link to the contact page.


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2 Responses to “‘General public’ hiker confronted by Kristi Zink at Falls Creek Road off County Road 203”

  1. Interesting. A couple days ago I drove to the falls creek access road and parked on the dirt pad on the E side of 203 (I usually walk, but the ~2 miles on pavement each way is rough on my dog’s paws). After a nice long walk on the ridgeline, on my way down the trail back to 203, I noticed a woman taking pictures of my car license plate. Can’t say who it was as they were gone by the time I got down there.

    I took the removal of the sign at the entry to be an acknowlegment by the Zinks et al that the ‘falls creek road’ must remain open to the public. Apparently not? If they are truly still trying to close off access then I will lose what respect I still have for that family.

    How far does the public right-of-way extend to either side of CR 203? Do we, the public, have a right to park along the road if we are just outside of the white lines? Or do we rely on permission from adjacent property owners?

     

    HMH

  2. Screenshot from La Plata Maps of CR 203 right-of-wayYou can see a rough layout of the right-of-way on La Plata Maps, but its accuracy is always questionable. I’ll let everyone know if and when I find a document that mentions the foot specs for the County Road 203 right-of-way distance.

     

    Adam Howell

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