A Texas corporation is seeking an injunction to prohibit Montezuma County maintenance on parts of County Road 41 until the court defines the county’s easement on the road, south of Mancos.
After a nearly eight-hour hearing in 22nd Judicial District Court on Thursday – with testimony from 10 witnesses – Judge Todd Plewe gave all parties 14 days to file written closing arguments.
Nicholas Hawkes, director of operations of PAX 2013 Ltd., and Durango attorney Geoffrey Craig appeared in court for the Texas limited partnership.
In a complaint filed Oct. 30 and amended Jan. 29, PAX 2013 named Montezuma County, the Board of Commissioners of Montezuma County and county Road and Bridge Superintendent Rob Englehart as defendants. County Commissioners Don Suckla and Jim Candelaria sat in the front row of the gallery during most of Thursday’s hearing.
PAX 2013 claims the historic width of the road is 12 to 20 feet, and county maintenance should stay within that width. The defendants claim a 60-foot right of way is standard for public highways and is necessary for maintenance and emergency vehicles.
Much of the property bounding Road 41 is private, but federal land also exists on both sides of the road. Bureau of Indian Affairs land is farther south.
Hawkes testified that he is a former engineer who farms industrial hemp on Road 41. He said that he, his brother and sister-in-law own PAX 2013, which was registered with the Texas Office of the Comptroller in 2015 and with the Colorado Secretary of State in 2017.
According to Montezuma County property records, PAX 2013 owns four parcels totaling 435 acres along Road 41. PAX 2013 first purchased property there in 2015 and bought more land in 2018. All the PAX 2013 property is south of the “no-winter maintenance” sign. Hawkes testified that he has driven Road 41 nearly every day for the past two years.
In its amended complaint, PAX 2013 claims that the county has no written easement for Road 41 on or south of the plaintiff’s property. The complaint states the county has only a “prescriptive easement” on the road, obtained merely by continued use of the road.
Hawkes testified that the county violated his rights and damaged his property.
The complaint claims that the county trespassed on PAX 2013 property in early 2018 when it installed two culverts under Road 41 and exceeded the historic width of 12 to 20 feet.
Then, in late October 2018, Hawkes said, the county bladed part of Road 41 wider than its historic width, tearing up soil, vegetation and rocks on the plaintiff’s property. PAX 2013 also claims the county removed its posts and gates.
The plaintiff claimed it would suffer “irreparable harm” unless the court restrained the county from working on Road 41 at the plaintiff’s property. PAX 2013 asks the court to issue a declaratory judgment defining the county’s easement, in terms of road width and its right to conduct maintenance.
On Nov. 2, three days after PAX 2013 filed the complaint, Plewe signed a temporary order restraining the county from working on Road 41. Plewe wrote there is a “substantial likelihood of success on the merits of the Plaintiff’s claims.” According to the order, he agreed that PAX 2013 would suffer immediate and irreparable damage if the motion were not granted.
Hawkes then installed a more narrow fence along parts of Road 41.
Neighbors interveneThe complaint, restraining order and fence led eight other property owners on Road 41 to hire Pagosa Springs law firm Cunningham Swaim to represent their interests. Attorney Todd Starr filed a motion to intervene on Jan. 26, which Plewe granted Thursday.
“I represent your neighbors,” Starr told Hawkes before his cross-examination.
In the motion, Starr wrote that PAX 2013 has challenged the status of Road 41 as a public road, which threatens to degrade the road and limit its use. As a result, other nearby properties could be devalued, he said.
Starr said the “frivolous nature” of PAX 2013’s legal action has caused nearby landowners to incur legal fees.
Road petitionIn his response to the plaintiff’s complaint, Montezuma County John Baxter admitted that the county has no written easement for Road 41, but he said Road 41 is a “public highway” as defined in Colorado Revised Statute 43-2-201.
The county argued that all public highways have a 60-foot-wide right of way. Baxter denied that the county trespassed on the PAX 2013 property and stated that the culvert and blade work were within the 60-foot right of way.
Baxter also produced an 1894 road petition filed with the Montezuma County clerk and recorder on Jan. 12, 1901. Ten property owners on Road 41 at that time signed a petition asking the county to take over the road at “not less than 60 feet in width.”
Baxter argued that the petition shows that property owners 125 years ago intended to establish Road 41 as a public road. He added that the road has a long history of use by traders, Ute Mountain Utes, the town of Mancos, the U.S. Bureau of Land Management and public recreation users.
Plaintiff witnessesCraig, attorney for PAX 2013, called four witnesses, all property owners along Road 41. They testified that they recalled that the historic width of Road 41 was 12 to 20 feet wide.
They are Hawkes, his client; Luke Smith, who lives just north of the “no-winter maintenance” sign; Scott Cox, a farmer; and Dennis Bartels, a California resident who developed the Stagecoach Acres subdivision in 1994 and ran the Mancos Valley Stage Line on the road from 1995 to 2004.
During cross-examination, Baxter asked Bartels whether he was ever confused about Road 41 being a private or public road.
“No, I was never confused that way,” Bartels said.
As Baxter questioned Smith, he showed him a copy of the 1894 road petition, which his great-grandfather, James Smith, signed. It asked the county to take the road at a width not less than 60 feet in width.
Defense witnessesBaxter called Doug Roth, Montezuma County GIS manager; Larry Lee, a county equipment operator for 29 years; Tyler Fouss, a BLM ranger; Lawrence Oby, an intervening property owner; Englehart, county road superintendent; and James Dietrich, county natural resources planning and public lands coordinator.
For Baxter’s direct examination of Roth, he produced the first Montezuma County road map from 1936 and the most recent map from 2017. Roth testified that Road 41 has appeared on the 1936 road map and every road map since then. He explained that the county adopts a new map every few years, in part to determine the level of gasoline tax funding.
Roth also examined the 1894 road petition. He said he is familiar with road petitions and knows that they stipulate a standard width of 60 feet, but he clarified that the road surface is not 60 feet; rather, it’s the land available to build, maintain and access the public road.
He said the county rarely has an actual deed to a road, and road petitions are generally seen as easements. The road petition process ended in Montezuma County in 1916.
Next up was equipment operator Lee. He told Assistant Montezuma County Attorney Ian MacLaren that he has maintained Road 41 since 1993. He said the county typically blades the road twice a year.
Lee stated that he believes a 60-foot right of way is necessary to safely operate equipment on the road.
As Craig began to ask Lee about his work on Road 41, Plewe stopped the proceeding, noting that 5 p.m., and the end of the workday, was approaching.
Plewe was frank. He said testimony was unlikely to waver: The county would argue for a 60-foot right of way; and the plaintiff for 12 to 20 feet.
He emphasized that the issue at hand was an injunction on a temporary restraining order. He added that he found it interesting that Road 41 might have been in the federal domain at the time of the road petition.
“It’s an interesting question of law,” Plewe said. “The facts, I think, I’ve seen them.”
The witnesses then continued as Baxter called BLM ranger Fouss.
Fouss testified that PAX 2013’s new narrow fence means that he must now drive the length of the PAX 2013 property to find a wide enough section to turn around. He said the narrow road could cause delays during an emergency.
Englehart testified that a 60-foot right of way is necessary for all public highways. Under cross-examination from Craig, Englehart said the county bladed wider than the road in October because operators reach out from ditch to ditch to pull dirt into the middle of the road.
A history of commerceDietrich, the liaison between Montezuma County and federal agencies, was offered as an expert on the history of Road 41. He cited his background in ethnographic research and mapping for the Ute Mountain Ute Tribe and his experience in landscape architecture and planning.
He said Road 41 initially was a foot path used by Ancestral Puebloans, and by 1300, for Ute Mountain Ute traders. The road also was used to access a Four Corners trading post about 1900, and to haul freight from an East Canyon coal mine in 1917. The defense used this testimony to argue that Road 41 was historically wider than it is today.
On cross-examination, Craig asked Dietrich whether it was possible that the mine could have operated on a narrower road than today. Dietrich said it was.
Oby, one of eight intervening neighbors, testified that based on Mancos Times newspaper archives, the town of Mancos organized a public meeting in 1893 to establish a wagon trail for trade with Farmington. Oby added that he considered Hawkes a friend until October. Road 41 is primitive, and neighbors are all about cooperation, he said.
More timeAs 5 p.m. approached, a ruling seemed farther away. And Plewe, noting that because the road petition was discovered just a day before the hearing, decided to give the plaintiff time to respond to it.
He granted 14 days for all three parties to file written closing arguments.
