landusepbb
08-16-2005, 08:38 AM
Roads lead to court for county, DOW
By Shane Benjamin
Herald Staff Writer
La Plata County and the Colorado Division of Wildlife will likely square off in a trial next month to determine road ownership in the Perins Peak State Wildlife Area, northwest of Durango.
The county sued the DOW in October 2003 in an effort to determine ownership of two roads going through the area: the Dry Fork Road (County Road 208) and Dry Gulch Road (Old Wagon Road). Part of the dispute stems over the DOW's refusal to allow the county to extend the Colorado Trail to Durango.
Earlier this month, District Judge Jeffrey Wilson issued a summary judgment against the county, saying the county failed to record ownership of the roads in the Grantor/Grantee Index.
Such indexes are held by county clerks and recorders across the state to document the sale and purchase of all property. They have been used since the 1860s and 1870s, said county lawyer Michael Goldman. But it wasn't until the 1930s or 1940s, he said, that laws became strict about using the books.
Goldman says the county has other evidence proving ownership, including historical documents from July 1887 and January 1892. The records are from minutes taken at Board of County Commissioners meetings describing money spent on the roads, mapping of the roads and creation of the roads.
Goldman argues that the DOW had sufficient evidence that the roads existed when it purchased the 10,000-acre wildlife area in 1969 and 1970. The roads were clearly visible, he said, and at a very minimum, the DOW should have inquired as to who owned the rights of way.
Whether the county or the DOW owns the road should be settled by Judge Wilson after a five-day trial scheduled to start Sept. 12. The trial should be interesting to watch, Goldman said, "if you're a history buff."
Dry Fork Road is still used by the traveling public, and some property owners use it as a primary access to their homes.
A Denver lawyer representing the DOW declined to comment Friday.
Kristen Hubbell, spokeswoman for the attorney general's office, said the summary judgment against the county is largely procedural and does little to resolve the dispute. She declined to respond to Goldman's statements that the roads have existed for many decades, and the DOW should have inquired about their ownership.
Tony Gurzick, a DOW official familiar with the case, was out of the office Friday and did not return a phone call.
A legal brief filed on behalf of the DOW, suggests the county has the burden of proving the
Durango Real Estate Durango Colorado
DOW was given notice of the county's ownership of roads. "The party asserting actual or inquiry notice has the burden of proving that such notice was given to the innocent purchaser," it says.
The brief also takes issue with the county books. It cites a 1961 case in which a judge compared county road books to "a senseless mass of documents, books and papers without the means of identification or classification," in contrast to the orderly Grantor/Grantee Index.
Goldman said he's confident the case will go to trial. "We've tried to resolve this one," he said.
For more than five years, the DOW has refused to allow the county to extend the Colorado Trail, claiming it would harm elk and deer that inhabit the area in winter. In earlier interviews, Gurzick said the wildlife preserve provides winter habitat for bobcat, bear, elk, peregrine falcon, deer and turkeys, among other species.
In the past, the DOW has posted signs at the entrance of Dry Fork Road indicating the road is closed to the public. In June 2001, the county wrote a letter to the DOW saying "such signs are unacceptable."
In the same letter, the county said it might be willing to abandon Dry Gulch Road in exchange for an easement on other portions of the DOW's property in order to extend the Colorado Trail to Durango.
While no studies have been done to determine the impact of trails in the Perins Peak State Wildlife Area, Gurzick said dozens of other studies suggest trails are detrimental to wildlife areas in general.
http://www.durangoherald.com/asp-bin/article_generation.asp?article_type=news&article_path=/news/05/news050813_5.htm
By Shane Benjamin
Herald Staff Writer
La Plata County and the Colorado Division of Wildlife will likely square off in a trial next month to determine road ownership in the Perins Peak State Wildlife Area, northwest of Durango.
The county sued the DOW in October 2003 in an effort to determine ownership of two roads going through the area: the Dry Fork Road (County Road 208) and Dry Gulch Road (Old Wagon Road). Part of the dispute stems over the DOW's refusal to allow the county to extend the Colorado Trail to Durango.
Earlier this month, District Judge Jeffrey Wilson issued a summary judgment against the county, saying the county failed to record ownership of the roads in the Grantor/Grantee Index.
Such indexes are held by county clerks and recorders across the state to document the sale and purchase of all property. They have been used since the 1860s and 1870s, said county lawyer Michael Goldman. But it wasn't until the 1930s or 1940s, he said, that laws became strict about using the books.
Goldman says the county has other evidence proving ownership, including historical documents from July 1887 and January 1892. The records are from minutes taken at Board of County Commissioners meetings describing money spent on the roads, mapping of the roads and creation of the roads.
Goldman argues that the DOW had sufficient evidence that the roads existed when it purchased the 10,000-acre wildlife area in 1969 and 1970. The roads were clearly visible, he said, and at a very minimum, the DOW should have inquired as to who owned the rights of way.
Whether the county or the DOW owns the road should be settled by Judge Wilson after a five-day trial scheduled to start Sept. 12. The trial should be interesting to watch, Goldman said, "if you're a history buff."
Dry Fork Road is still used by the traveling public, and some property owners use it as a primary access to their homes.
A Denver lawyer representing the DOW declined to comment Friday.
Kristen Hubbell, spokeswoman for the attorney general's office, said the summary judgment against the county is largely procedural and does little to resolve the dispute. She declined to respond to Goldman's statements that the roads have existed for many decades, and the DOW should have inquired about their ownership.
Tony Gurzick, a DOW official familiar with the case, was out of the office Friday and did not return a phone call.
A legal brief filed on behalf of the DOW, suggests the county has the burden of proving the
Durango Real Estate Durango Colorado
DOW was given notice of the county's ownership of roads. "The party asserting actual or inquiry notice has the burden of proving that such notice was given to the innocent purchaser," it says.
The brief also takes issue with the county books. It cites a 1961 case in which a judge compared county road books to "a senseless mass of documents, books and papers without the means of identification or classification," in contrast to the orderly Grantor/Grantee Index.
Goldman said he's confident the case will go to trial. "We've tried to resolve this one," he said.
For more than five years, the DOW has refused to allow the county to extend the Colorado Trail, claiming it would harm elk and deer that inhabit the area in winter. In earlier interviews, Gurzick said the wildlife preserve provides winter habitat for bobcat, bear, elk, peregrine falcon, deer and turkeys, among other species.
In the past, the DOW has posted signs at the entrance of Dry Fork Road indicating the road is closed to the public. In June 2001, the county wrote a letter to the DOW saying "such signs are unacceptable."
In the same letter, the county said it might be willing to abandon Dry Gulch Road in exchange for an easement on other portions of the DOW's property in order to extend the Colorado Trail to Durango.
While no studies have been done to determine the impact of trails in the Perins Peak State Wildlife Area, Gurzick said dozens of other studies suggest trails are detrimental to wildlife areas in general.
http://www.durangoherald.com/asp-bin/article_generation.asp?article_type=news&article_path=/news/05/news050813_5.htm