Three attorneys have submitted written closing arguments in a civil case in 22nd Judicial District Court that could impact the future of Montezuma County maintenance on County Road 41 south of Mancos and potentially set a precedent in Colorado road law.
Counsel for the plaintiff, a Texas corporation that owns 435 acres along Road 41, alleges government overreach.
They write that the Montezuma County Road and Bridge Department exceeded its historic use, trespassed on its land and violated the U.S. Constitution when the county in 2018 graded the road wider than the 12- to 20-foot historic use and installed culverts.
“Through its recent actions, the County has committed clear and flagrant trespasses on Plaintiff’s land by ignoring and exceeding the historic width and scope of its easement, without making any attempt to comply with the constitutional and statutory requirements for the acquisition of additional land,” Geoffrey Craig, attorney for PAX 2013 Ltd., a Texas limited partnership, wrote in his closing arguments.
The Texas corporation is seeking an injunction to prohibit Montezuma County from performing maintenance outside of what they argue is the historic width of 12 to 20 feet.
The named defendants in the case — the Montezuma County Board of County Commissioners and the county’s road superintendent — argue that a road petition signed by 10 property owners along Road 41 in 1894 and recorded with the county Clerk and Recorder in 1901 statutorily conveyed a 60-foot right of way to Montezuma County.
Montezuma County Attorney John Baxter cites an 1883 Colorado Session Law to justify the right of county commissioners to lay out and open county roads and the 1892 Colorado case Starr v. People to show the mechanism for common law conveyance of a 60-foot right of way.
But Craig dismisses the road petition, calling it a “meaningless and ineffectual document” with several “fatal flaws.”
He argues that a major property owner — the federal government — failed to sign the petition and the road described in the petition is in a different location than the current road.
The plaintiff’s closing arguments references an affidavit from a Road 41 resident with firsthand knowledge of the road back to the 1950s and family history knowledge of the road back to the late 1800s. The affiant is willing to testify that the original road was abandoned in the early 1900s as it kept washing out by the nearby creek, Craig states.
About half the road shown on the road petition passes over federal government land, but the federal government never signed the petition, Craig wrote. He cited the 1914 Colorado Court of Appeals case Goerke v. Town of Manitou, which states a county cannot establish a public road unless it meets certain procedures, including a provision that all landowners must sign a road petition.
Baxter, in his closing arguments, sought to dismantle the plaintiff’s reference to Goerke. He argued that the circumstances in that case differ drastically from Road 41, primarily that the court in Goerke noted that the county failed to acquire jurisdiction over the matter because there was no evidence the road was definitively laid out or that owners were notified.
He went on to argue that the lack of objection from private landowners for more than 20 years conveyed the 60-foot right of way and established Road 41 as a public highway, as described in Colorado Revised Statutes 43-2-201(1)(c).
According to testimony on Jan. 31 and Baxter’s closing arguments, Road 41 was used by Native Americans in the 1600s and became a trading route by foot, horse, wagon and motorized vehicles once Europeans arrived. Road 41 was an early wagon route from Mancos to Farmington, a freight route in the late 1800s and was used to transport coal in the 1930s.
Most recently, Dennis Bartels ran a stagecoach business on Road 41 in 2005. It’s also used to access Bureau of Land Management wilderness and the Southern Ute Reservation.
Along with those major landowners, eight private landowners wedged between the Texas corporation’s property and the Southern Ute Reservation have filed an intervening lawsuit, alleging that reduced maintenance could degrade the road and devalue their properties.
Closing arguments from Todd Starr, attorney for the interveners, added a few new twists to the civil case.
He argues that the plaintiff’s injunction should be denied based on a failure to “join indispensable parties.” He said the BLM and other affected landowners — the indispensable parties — were not made party to the lawsuit but could be negatively impacted by the court’s ruling. He cited the 1986 Colorado Court of Appeals case Prutch Bros. TV v. Crow Watson.
“The Intervenors object to any further action being taken without their neighboring landowners having a voice and opportunity to be heard – without due process to all!“ Starr wrote.
Starr went on to challenge “the very nature” of the plaintiff’s request for an injunction, arguing that injunctions are designed to maintain the status quo and protect an existing right, not establish a new right, as the plaintiff is seeking.
He then argued that courts are generally reluctant to grant injunctions against a branch of government, as it constitutes a form of judicial overreach. He cited the 1997 Colorado Court of Appeals case City of Eagle v. Fixed Base Operators to back up that argument.
Starr concluded that a preliminary injunction would be a disservice the public interest and that the plaintiff has failed to show that it would suffer real, immediate and irreparable injury without the injunction.
At a hearing on Jan. 31, 2nd Judicial District Court Judge Todd Plewe gave all parties 14 days to file written closing arguments. All three attorneys filed their arguments dated Feb. 14, exactly 14 days after the first hearing. The court docket shows no additional hearings scheduled.
sdolan@the-journal.com
Defendant closing arguments (PDF)
Plaintiff closing arguments (PDF)
Intervenor closing arguments (PDF)
