No. 70-070, (Supreme Court No. 22722.)

471 P.2d 645 (1970)

Francis J. JESMER and Ralph K. Jesmer, Plaintiffs in Error, v. Walter R. HODGE and Thova E. Hodge, Defendants in Error.

Colorado Court of Appeals, Div. II.

April 14, 1970.

Attorney(s) appearing for the Case

Franklin C. Douglas, Denver, for plaintiffs in error.

Frank P. Land, Laurel, Md., for defendants in error.

Not Selected for Official Publication.

COYTE, Judge.

This case was originally filed in the Supreme Court of the State of Colorado, and was subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.

Francis and Ralph Jesmer, plaintiffs in error here, and plaintiffs in the trial court, will be referred to herein as plaintiffs.

Plaintiffs claimed a right by prescription to use a road across defendants' land. To enforce this right, plaintiffs filed their complaint seeking declaratory judgment and damages from defendants for having blocked the way.

Defendants denied that plaintiffs had a prescriptive right in the road and filed a counterclaim seeking to quiet title in themselves to the disputed road.

At the conclusion of the trial to the court, the trial judge found in favor of defendants and against plaintiffs. Plaintiffs' motion for a new trial was granted. In the second proceeding all evidence introduced in the first trial was considered by the court. The court found that plaintiffs had failed to sustain their burden of proof, dismissed their claim, and entered an order quieting the title in defendants to the road.

We affirm the trial court's decision and hold that sufficient evidence exists to support its decision.

It is plaintiffs' claim that they gained an easement by prescription across defendants' land. They seek to establish their right to use the road in question by relying on a right established by prescriptive use dating from approximately 1944 to 1963.

However, Oscar Berg, defendants' predecessor in title, testified he blocked the road in question when he discovered its existence in 1948; and that Francis Jesmer then requested permission to use the road, which was granted under certain conditions. He also testified, without objection, that a written agreement involving use of the road was signed by both he and Francis Jesmer. This testimony was disputed by Jesmer, who claimed no such agreement had ever been entered into and denied having been granted permission to use the road.

The essence of this decision hinges on whether permission was granted to use this road. For, if permission was granted, the use of the road cannot evolve into a prescriptive easement. As was stated in Segelke v. Atkins, 144 Colo. 558, 357 P.2d 636:

"The mere lapse of time after a permissive entry obtained from one whose title is recognized by the lessee does not confer adverse or hostile title."

In the instant case, if it was determined that plaintiffs were using the road by permission, then the statutory period for asserting a prescriptive easement does not commence until plaintiffs deny defendants' title in the road and assert their use as a matter of right.

In its findings the trial court found that defendants' witness, Berg, blocked the claimed roadway in 1948 and that he and Francis J. Jesmer then entered into a written agreement, giving Francis Jesmer permission to use the roadway and that any use of the road after 1948 was permissive and was not adverse.

Since this matter was tried to the court, the trial judge is the sole judge as to the credibility of the witnesses. People ex rel. Dunbar v. Lee Optical, Colo., 452 P.2d 21. If the evidence will support the trial court's findings, even though reasonable men might have reached different conclusions based upon that same evidence, this court will not upset those findings upon review. Whatley v. Wood, 157 Colo. 552, 404 P.2d 537.

Judgment affirmed.

DWYER and DUFFORD, JJ., concur.


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