The 22nd Judicial District Court in Cortez has denied a request by a landowner to prevent the Montezuma County road department from maintaining County Road 41 south of Mancos.
On March 22, District Judge Todd Plewe denied a motion for a preliminary injunction to stop county work on the road, and he vacated a temporary restraining order previously issued Nov. 2.
The order does not represent a final determination in the case, which will proceed to a trial on the merits.
PAX 2013 Ltd., a Texas Limited Partnership, owns property along Road 41. PAX sued Montezuma County in October, claiming the road department is maintaining the road wider than legally allowed and caused alleged damage.
The county claims a 60-foot right of way, but Nicholas Hawkes, director of operations for PAX 2013 Ltd., and corporation lawyer Geoffrey Craig claim the historic width of the route is limited to 12-20 feet. They requested an injunction to prevent any county maintenance while the case was decided.
But after reviewing submitted evidence and arguments, Plewe determined the plaintiff’s request did not satisfy three standards required for a preliminary injunction.
The unmet standards, according to the decision are: reasonable probability of success on the merits; a danger of real, immediate, and irreparable injury that may be prevented by injunctive relief; and no disservice to the public interest.
On reasonable probability of success on the merits, Plewe wrote the plaintiff “failed to meet its burden” in its contention the historic width of the road is 12-20 feet.
“On the contrary, the evidence presented at the hearing tended to show that Road 41 is a sixty (60) foot wide county road from north to south through Plaintiff’s property — at least until Road 41 reaches ‘East Canyon’ and likely further south through Plaintiff’s remaining property,” according to the order.
On the danger of real injury standard, it was noted the plaintiff stated his land and crops had been damaged because of the county’s road maintenance. But Plewe stated “there was no showing that this damage was ‘irreparable.’”
On disservice to the public interest, the standard requires the plaintiff to show a preliminary injunction will not be a disservice to the public, but Plewe said it would. Road 41 has been bladed once or twice per year since at least 1991, is used by the public and landowners, and would “disserve the public interest if Road 41 were not maintained.”
Montezuma County Road Superintendent Rob Englehart said the decision to lift the restraining order and deny the injunction “was fair.” He said the road department will conduct the annual spring maintenance on Road 41 in the coming weeks, including blading and cleaning out of the ditches.
“It needs maintenance for the people who live down there and for others that use the road,” Englehart said.
The landowner claims the county has no written easement for Road 41 on or south of its property and that the county only has a narrow 12- to 20-foot “prescriptive easement” on the road merely by continued use.
Montezuma County asserts the road is a “public highway” as defined by Colorado law and has been used historically by Native Americans, traders, recreationists, U.S. Bureau of Land Management, and to haul freight from and East Canyon coal mine in 1917.
In its defense of the 60-foot right of way, Montezuma County cited an 1894 road petition filed with the county clerk in 1901. Ten property owners on Road 41 signed a petition asking the county to take over the road at “not less than 60 feet in width,” according to court documents. The county said the road surface does not need to be 60 feet, but a 60-foot right of is necessary for maintenance purposes and road crew safety.
In a court brief, PAX 2013 attorney Geoffrey Craig dismissed the road petition, calling it a “meaningless and ineffectual document” with several “fatal flaws.” He argued 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.
Craig claimed the 1883 statute allowing new public roads through petitions “specifies a plethora of obligatory procedures to ensure due process and just compensation to landowners ... and that the County had no evidence confirming that it had complied with any of those procedures.”
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.
Montezuma County attorney John 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.
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.
The case is set for a status conference on April 15 at 11 a.m. in District Court.
jmimiaga@the-journal.com