By Mark Esper
Lawyers for San Juan County and the owners of Cole Ranch dug deep into history on Friday, July 24, citing documents dating to the 1880s in arguing over whether County Road 22A actually exists.
And the lawyers also argued over the chain of custody of the long-abandoned Silverton Northern Railroad that crosses the 37-acre Cole Ranch subdivision near Eureka.
The showdown came in San Juan County District Court — and during a field trip to the site of the alleged road. It was a hearing on San Juan County’s motion to dismiss a lawsuit filed a year ago by the property owners.
The Cole Ranch owners sued the county in July 2008, challenging its claim of ownership of two roads across the property and a 200-foot-wide easement along the abandoned railroad.
“The purpose of the motion was to weed things out and whatever is left over we’ll litigate,” Sunderland told District Judge Gregory Lyman, who came up to Silverton from Durango for the hearing.
Sunderland pointed to a number of faults he sees with the lawsuit brought by Cole Ranch owners Merlin Schaefer of Gunnison and Sandra Ippolite of Mountain Village.
Sunderland disputed the plaintiff’s claim that the county long ago abandoned County Road 22A, along with a tiny dead end trail called County Road 2D and the former railroad grade.
“There is no evidence of formal abandonment,” Sunderland argued.
Sunderland added that the county cannot be sued for adverse possession under Colorado law.
“You cannot assert an adverse possession claim against a sovereign,” Sunderland said.
He said the plaintiffs are claiming the county must prove it owns the rights of way in dispute, which he said “turns things on its head. There is an absolute bar to litigation of that substantive type against the county.”
Sunderland also questioned the standing of plaintiffs in the lawsuit.
The Cole Ranch subdivision has three owners — Schaefer, Ippolite and San Juan Properties LLC.
Sunderland said that the disputed rights of way do not affect all those owners.
With respect to County Road 22A, which barely touches the western edge of the subdivision, “Merlin Schaeffer has no horse in that race,” Sunderland said. “They are asserting what I would call ‘standing by proximity.’”
Sunderland said that was “utterly inconsistent with Colorado law. We need to pare down who has a right to bring these claims.”
Sunderland also pointed to “potential time limit” problems with the litigation.
First of all, he said prior uses of those rights-of ways are a problem for the plaintiffs. He said that after 20 years of use as a road, “adverse use ripens into public ownership of a right of way” under state law, and adverse possession claims by property owners would be rejected.
Sunderland also questioned whether the plaintiffs filed their lawsuit on time. He said they had two years to sue after becoming aware of the county’s claims.
“Did the plaintiffs know the county was claiming some sort of interest (in the rights of ways) prior to Aug. 6, 2006?” Sunderland asked.
He said the plat approved for the Cole Ranch subdivision in 2001 included a 50-foot-wide “no-build zone” on either side of the abandoned railroad.
“How the heaven could anyone suggest the county was not asserting a public right recorded in 2001?” Sunderland asked.
Sunderland also pointed to a letter from Schaeffer to county officials in October 2006 complaining of snowmobile traffic on County Road 22A.
Sunderland surmised that Schaeffer must have been talking about prior winters, since snowmobiles were not yet operating at that time.
“It is plain knowledge by Mr. Schaeffer that the county was asserting its right (to County Road 22A),” Sunderland argued.
He also rattled off a list of what he called “undisputed facts”:
• County Road 22A has had a road sign since 2001.
• The road is maintained up to the mudslide below Dome Mountain, and a portion was rebuilt in 2000.
• The road has been on snowmobile club maps since 2000.
Sunderland said the section of County Road 22A in question dates to a toll road charter granted in 1885.
“Colorado law is very clear on the peculiar and unique nature of toll roads,” Sunderland said. He said the charter granted a 20-year right to collect tolls, after which the road would be “returned to its status as a public road.”
Sunderland argued that the plaintiffs cannot show the county ever abandoned the road.
He said their claim that it wasn’t included in the subdivision plat is not adequate.
“They have to exhibit intent to abandon,” Sunderland said. He said it was “sheer nonsense” to argue that county officials’ failure to catch an error on a plat constituted an intent to abandon the road.
“This road is on every historic map we’ve been able to locate,” Sunderland said.
“Our position is that as of 1905 to 1910, these roads plainly became public roads. There is no question that neither has been abandoned. An (adverse use) challenge had to be made prior to 1905.”
Sunderland also pointed out that some two dozen property owners rely on County Road 22A to access their property, regardless of the alleged road’s condition.
He also pointed out “the county from time to time has removed blockades put up by Mr. Schaeffer” and that the road is signed.
“How can you argue there is any sort of abandonment here? “This case should be put to rest at this point,” Sunderland said.
Regarding the railroad right of way, Sunderland told Judge Lyman that the county has “not asserted” its ownership there.
“Frankly, we don’t know who owns the Silverton Northern Railroad right of way at this point,” Sunderland said. “It’s a serious question, but you don’t need to get to that issue. There is no reason to go forward. The case should be put to rest at this point.”
Attorney Shannon Bell of Denver, representing the Cole Ranch owners, responded that all the plaintiffs have standing in the case because the results impact the outcome of their collective investment in the properties.
She then launched into the plaintiff’s argument with the county.
“Mr. Sunderland has admitted nobody knows who owns the Silverton Northern Railroad,” Bell said. She said the railroad was officially abandoned in 1942.
“After that it reverted to private ownership,” Bell said.
She said that in the Cole Ranch plat, the railroad grade is “simply noted” as an historic feature.
“It is not recognition of ownership by San Juan County or by anyone else for that matter,” Bell argued.
She said a county tax sale sold the French Placer parcel (now the Cole Ranch and adjacent property owned by Joe Jepson) “as a whole.”
She said her clients have paid taxes on that land for the past several years “including the 200-foot-wide swath of railroad” easement the county claims.
Bell insisted that county maps show Road 22A ending south of the Cole Ranch plat. And she said that since the landslide in 1983 below Otto Gulch, traffic beyond there has been blocked.
“There had been no maintenance since 1983,” Bell said. “Mr. Schaeffer didn’t come into possession until 1999.”
Bell said the court needs to decide if alleged County Road 22A was ever a pubic road “and if it was a public road, if subsequent action by the county abandoned it.”
She said the road is not included in the 1999 deed obtained by Schaefer.
And she also said county officials don’t seem to know the exact location of the road.
“If County Road 22A is a public road, where is its location?” Bell asked. She said a survey would be needed and it “may or may not cross the Schaeffer and Ippolite properties.”
Bell argued that when the old toll road’s charter expired around 1905, the road reverted to the private landowner, not the public domain.
She said her research found that the toll road charter was granted across the French Placer in 1885.
The “toll road” label appeared in an 1891 county map and in 1892, San Juan County received the right to collect the toll and maintain the road for the next two years.
In 1896 the Silverton-Animas Forks toll road was deeded over to the Silverton Northern Railroad.
She said that on an 1898 map, “there was no toll road label on what is alleged to be County Road 22A. This calls into question what happened. The same gentleman who created that earlier (1891) map now removed the toll road designation.”
She said she could find no record of the alleged road in deeds since the 1920s.
Bell said “it is a question of fact as to whether it was a public road and whether the road was abandoned north of Otto Gulch.”
She argued abandonment of a road does not necessarily require official county action. It can happened when it becomes “practically impossible” to use. She said that happened in 1983, when a “significant landslide” blocked access.
“There has been no attempt since 1983 to clear the landslide,” Bell said. She said the lack of maintenance shows the “county’s intent stopped at Otto Gulch. The county’s decision to maintain one side and not the other shows an intent to abandon.”
Bell also questioned Sunderland’s assertion that the road is needed to access other properties.
“In the state the road is in it has been nearly impossible for these landowners to access it since 1983,” she said.
After hearing the arguments, the lawyers, judge and other interested parties drove out to Middleton to see the alleged County Road 22A for themselves.
Judge Lyman gave no indication when he would rule on the county’s motion to dismiss the lawsuit.