     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                  SUMMARY
                                                           February 27, 2020

                                2020COA34

No. 18CA2250, Woodbridge Condominium Association, Inc., v.

Lo Viento Blanco, LLC — Real Property — Prescriptive

Easements — Adverse Use

     A division of the court of appeals addresses whether the

requirement that the use be “adverse” in the adverse possession of

property context is coextensive with the requirement of adverse use

in the prescriptive easement context. While there is overlap, the

division concludes that overlap is not complete; claim to exclusive

ownership during the prescriptive period is required to show hostile

adverse use when a party seeks to acquire title by adverse

possession, but it is not required when a party seeks to acquire a

prescriptive easement by adverse use. Rather, adverse use in the

prescriptive easement context requires only a showing of use made
without consent or other authorization of the landowner, such as

would justify a tort action for interference with property rights.

Applying this rule, the division affirms the trial court’s conclusion

that plaintiff Woodbridge Condominium Association Inc. acquired a

prescriptive easement over the disputed parcel. The division also

affirms the trial court’s ruling as to the scope of that easement.
COLORADO COURT OF APPEALS                                      2020COA34


Court of Appeals No. 18CA2250
Pitkin County District Court No. 12CV223
Honorable Christopher G. Seldin, Judge


Woodbridge Condominium Association, Inc., a Colorado nonprofit corporation,

Plaintiff-Appellee,

v.

Lo Viento Blanco, LLC, an Arizona limited liability,

Defendant-Appellant.


                            JUDGMENT AFFIRMED

                                   Division V
                         Opinion by JUDGE J. JONES
                         Harris and Brown, JJ., concur

                         Announced February 27, 2020


Peck Feigenbaum PC, Heather J. Manolakas, Lucas Peck, Denver, Colorado, for
Plaintiff-Appellee

Law Office of James A. Knowlton, LLC, James A. Knowlton, Denver, Colorado,
for Defendant-Appellant
¶1    Lo Viento Blanco, LLC (Lo Viento) owns an approximately half-

 acre (actually 0.452-acre) piece of property in Snowmass Village

 (the disputed parcel). Reversing the trial court, a prior division of

 this court held that Woodbridge Condominium Association, Inc.

 (Woodbridge) hadn’t acquired the disputed parcel by adverse

 possession. Woodbridge Condo. Ass’n, Inc. v. Lo Viento Blanco, LLC,

 (Colo. App. No. 15CA0596, May 19, 2016) (not published pursuant

 to C.A.R. 35(f)) (Woodbridge I). On remand, however, the trial court

 found that Woodbridge is entitled to a prescriptive easement over

 most of the disputed parcel.

¶2    Lo Viento again appeals, contending that the trial court erred

 by finding a prescriptive easement and also by delineating the scope

 of the easement. To resolve Lo Viento’s first contention, we must

 address, among other issues, whether the requirement that the use

 be “adverse” in the adverse possession context is coextensive with

 adverse use in the prescriptive easement context. We conclude that

 while those requirements overlap, that overlap isn’t complete. As

 most relevant, we hold that while claim to exclusive ownership

 during the prescriptive period is required to show hostile adverse

 use when a party seeks to acquire title by adverse possession, it


                                    1
 isn’t required when a party seeks to acquire a prescriptive easement

 by adverse use. Rather, adverse use in the prescriptive easement

 context requires only a showing of use made without consent or

 other authorization of the landowner, such as would justify a tort

 action for interference with property rights. See Restatement

 (Third) of Property: Servitudes § 2.16 cmt. b (Am. Law Inst. 2000).

 And for this reason, a user’s recognition of the landowner’s title

 doesn’t necessarily defeat a claim for a prescriptive easement based

 on adverse use.

¶3    The trial court properly applied these principles. And because

 (1) its underlying findings of historical fact enjoy record support; (2)

 Lo Viento’s separate contention that its predecessor in title gave

 Woodbridge permission to use the disputed parcel fails; and (3) the

 other elements of a prescriptive easement claim aren’t disputed, we

 affirm its conclusion that Woodbridge acquired a prescriptive

 easement over the disputed parcel. We also affirm the trial court’s

 ruling as to the scope of that easement.




                                    2
                           I.    Background

                         A.     Historical Facts

¶4    In the early to mid-1970s, L.R. Foy Construction Co., Inc.

 (Foy), owned and controlled by Lyle Foy, built several condominium

 buildings on a parcel that included, but was quite a bit larger than,

 the disputed parcel. None of those buildings are on the disputed

 parcel.1 The disputed parcel is shown on the following diagram.




 1The plan Foy submitted to the county for approval showed a
 building on the disputed parcel. The record doesn’t say why Foy
 didn’t construct that building.

                                    3
¶5    In late 1975, Foy conveyed the larger parcel — but not

 including the disputed parcel — to Woodbridge. (This conveyance

 failed to conform to the development plan approved by the county,

 which included the entirety of the larger parcel. So the conveyance

 may have been illegal because it subdivided the property without




                                  4
the county’s approval.) Thereafter, and continuing through at least

2012, Woodbridge used the disputed parcel in a number of ways.

       • Residents and guests skied across it to access a

          pedestrian bridge leading to a ski area.

       • Woodbridge maintained sod previously installed by Foy

          for erosion control by regularly mowing, watering,

          fertilizing, and raking it.

       • Residents and guests regularly used a gravel road

          running through the disputed parcel to access one of the

          buildings (Building 31) and to park on.

       • Woodbridge maintenance personnel used the gravel road

          to access Building 31.

       • Woodbridge maintained and put gravel on the gravel

          road.

       • In 1992, and again in 1995, Woodbridge planted some

          pine trees on it.

       • Also in 1995, Woodbridge used it as a staging area for a

          large construction project and built a berm just north of

          the gravel road.




                                   5
        • Woodbridge added a picnic table and split rail fence in

           1997.

        • Sometime in the late 1990s, Woodbridge planted aspen

           trees on it (some of which it later moved in 2004).

        • In the early 2000s, Woodbridge put a chain across the

           gravel road to limit use of the gravel road to maintenance

           personnel.

        • In 2004, Woodbridge installed signs on it that read

           “Woodbridge Condominiums,” and Woodbridge installed

           lights and landscaping around the signs.

        • Also in 2004, Woodbridge installed an in-ground

           sprinkler system to water the sod that covers most of the

           disputed parcel.

¶6    In sum, as the trial court said, “beginning in November 1975,

 Woodbridge maintained and used the [d]isputed [p]arcel as if it

 owned the parcel” — it used the property as an amenity and

 convenience for residents, guests, and maintenance personnel as if

 it were a part of the overall condominium development.




                                  6
¶7    All this would seem, considered in a vacuum, to make out a

 case for adverse possession of the disputed parcel.2 But, as the

 prior division determined, a letter from Woodbridge to Foy in 1992

 offering to buy the disputed parcel doomed that idea.

¶8    In early 1991, Woodbridge sent two letters to Foy asking for

 permission to plant trees and shrubs on the disputed parcel. Foy

 responded with a letter offering to give such permission if

 Woodbridge would agree to certain conditions. (Foy made the offer

 on behalf of the entity to which it had conveyed the property in

 1989, an entity controlled by Mr. Foy.) Woodbridge didn’t agree to

 those conditions, but then offered to buy the disputed parcel from

 Foy in a June 1992 letter. 3 Neither Foy nor the then-owner

 responded to that offer.




 2 Indeed, as discussed below, the trial court found, following a
 bench trial, that Woodbridge had acquired the disputed parcel by
 adverse possession.
 3 There is some question whether these letters related to land within

 the disputed parcel. But the trial court found that, by these letters,
 Woodbridge sought to plant on and then buy property owned by
 Foy’s successor in title, including the disputed parcel, despite not
 knowing precisely what land that entity owned.

                                   7
¶9     Woodbridge nonetheless continued to use the disputed parcel

  as if it owned it. No record owner of the disputed parcel made any

  use of it for any purpose from 1975 until 2011.

¶ 10   Lo Viento ultimately purchased the disputed parcel at auction

  from a bankruptcy estate in 2010 for $2,500. In 2011, Lo Viento

  presented plans to Woodbridge to build on the disputed parcel.4

                           B.   This Litigation

¶ 11   On learning of Lo Viento’s plans to build, Woodbridge told Lo

  Viento that it owned the disputed parcel by adverse possession. It

  followed up by filing this case in August 2012, claiming title to the

  disputed parcel by adverse possession. In the alternative, it sought

  a declaration that it has a prescriptive easement over the disputed

  parcel. Lo Viento counterclaimed to reform the deed it had received

  from the bankruptcy estate and to quiet title.

¶ 12   Following a bench trial, during which the court visited the

  disputed parcel, the court found that Woodbridge had acquired title

  by adverse possession, explaining its ruling in a commendably




  4Lo Viento didn’t do anything to interrupt Woodbridge’s use of the
  disputed property until September 2012, when it filed its
  counterclaims.

                                    8
  thorough written order. Lo Viento appealed, and, as noted, a

  division of this court reversed.

¶ 13   The division reasoned that Woodbridge’s June 1992 letter

  offering to buy the disputed parcel was, in essence, an admission

  “that it did not claim superior title or have any right to or ownership

  of the disputed parcel.” Because “hostility requires the adverse

  possessor to claim exclusive ownership of the property,” the 1992

  letter torpedoed Woodbridge’s adverse possession claim by

  interrupting the continuity of Woodbridge’s adverse possession

  before the passage of the statutory eighteen-year vesting period that

  began in 1975. Woodbridge I, slip op. at 7 (citing Anderson v. Cold

  Spring Tungsten, Inc., 170 Colo. 7, 11, 458 P.2d 756, 758 (1969)).

  The division also held that the June 1992 letter defeated any claim

  to adverse possession beginning in November 1993 (after the initial

  eighteen-year period beginning in 1975) because it showed that

  Woodbridge didn’t believe it was the actual owner of the disputed

  parcel. Id. at 10 (citing § 38-41-101(3)(b)(II), C.R.S. 2019). 5 So the



  5Under section 38-41-101(3)(b)(II), C.R.S. 2019, an adverse
  possession claimant can’t prevail on a claim that would vest on or
  after July 1, 2008, unless it shows that it had a good faith belief

                                     9
  division reversed the order quieting title in Woodbridge and

  remanded the case to the trial court to quiet title in Lo Viento “and

  to consider Woodbridge’s easement claims.” Id. at 11.

¶ 14   On remand, the parties agreed that the court (a different judge

  than the one who had presided at trial) would rule without taking

  additional evidence. (And Lo Viento argued that the division’s

  previous decision controlled.) After considering the parties’

  post-remand arguments and the record, the trial court found that

  Woodbridge had proved its right to a prescriptive easement,

  explaining its reasoning in yet another thorough written order.

  After additional briefing, the court issued a third detailed written

  order setting forth the geographical bounds, permissible uses, and

  nature of the easement. Lo Viento appeals these last two orders,

  which collectively make up the court’s final judgment.

                             II.   Discussion

¶ 15   As noted, Lo Viento first challenges the trial court’s finding

  that Woodbridge is entitled to an easement by prescription.




  that it actually owned the property that was reasonable under the
  circumstances.

                                    10
  Alternatively, it challenges the court’s findings as to the scope of the

  easement. We consider, and reject, these challenges in turn.

                   A.   The Existence of the Easement

¶ 16   In Colorado, “[a]n easement by prescription is established

  when the prescriptive use is: 1) open or notorious, 2) continued

  without effective interruption for the prescriptive period, and 3) the

  use was either a) adverse or b) pursuant to an attempted, but

  ineffective grant.” Lobato v. Taylor, 71 P.3d 938, 950 (Colo. 2002)

  (citing Restatement (Third) of Property: Servitudes §§ 2.16, 2.17);

  accord LR Smith Invs., LLC v. Butler, 2014 COA 170, ¶ 14.

¶ 17   This case doesn’t involve an attempted, but ineffective grant;

  Woodbridge’s claim is based on adverse use. As to that element, Lo

  Viento argues that Woodbridge’s use of the disputed parcel wasn’t

  adverse because the prior division’s holding that Woodbridge’s June

  1992 letter defeated Woodbridge’s adverse possession claim is the

  law of the case and applies equally to Woodbridge’s prescriptive

  easement claim. It argues in the alternative that Foy’s July 1991

  letter shows that Woodbridge’s use of the disputed parcel was

  permissive, not adverse, as of mid-1991, so Woodbridge didn’t show

  eighteen continuous years of adverse use from 1975 or from


                                    11
  mid-1991, as required by section 38-41-101(1). (Or, put another

  way, Lo Viento argues that Woodbridge’s adverse use was fatally

  interrupted during the prescriptive period.)

                                1.    Law

                          a.    Law of the Case

¶ 18   “[T]he law of the case doctrine ‘provides that prior relevant

  rulings made in the same case are to be followed unless such

  application would result in error or unless the ruling is no longer

  sound due to changed conditions.’” Stockdale v. Ellsworth, 2017

  CO 109, ¶ 37 (quoting People v. Dunlap, 975 P.2d 723, 758 (Colo.

  1999)). “[T]he law of the case established by an appellate court

  must be followed on remand in subsequent proceedings before a

  trial court.” San Antonio, Los Pinos & Conejos River Acequia Pres.

  Ass’n v. Special Improvement Dist. No. 1, 2015 CO 52, ¶ 31.

  “Conclusions of an appellate court on issues presented to it as well

  as rulings logically necessary to sustain such conclusions become

  the law of the case.” Super Valu Stores, Inc. v. Dist. Court, 906 P.2d

  72, 79 (Colo. 1995).




                                     12
        b.    Adverse Use in the Prescriptive Easement Context

¶ 19   To obtain title to property by adverse possession, the claimant

  “must prove that his possession . . . was actual, adverse, hostile,

  under claim of right, exclusive and uninterrupted for the statutory

  period.” Smith v. Hayden, 772 P.2d 47, 52 (Colo. 1989).6 This

  requirement means that the adverse possessor must claim exclusive

  ownership of the occupied parcel; in the absence of such a claim, a

  use isn’t deemed “hostile.” Id. at 56; Anderson, 170 Colo. at 11,

  458 P.2d at 758.

¶ 20   This conception of hostility (requiring claim to exclusive

  ownership) is one aspect of the law of adverse possession that

  differs from the law of prescriptive easements. In the latter context,

  an adverse use

             is a use made without consent of the
             landowner, or holder of the property interest
             used, and without other authorization.
             Adverse uses create causes of action in tort for
             interference with property rights. . . . [Such]




  6 In addition, as previously noted, a party claiming fee simple title
  by adverse possession for which title would vest after July 1, 2008,
  must also prove that it had a good faith belief that it was the actual
  owner of the property that was reasonable under the
  circumstances. § 38-41-101(3)(b)(II).

                                    13
             uses are adverse or hostile to the property
             owner in the ordinary sense of the words.

  Restatement (Third) of Property: Servitudes § 2.16 cmt. b. Put

  slightly differently, “[t]o be adverse, . . . a use must create a cause of

  action for interference with an interest in property like trespass,

  nuisance, or interference with a servitude benefit. To be adverse,

  the use must be made without authority and without permission of

  the property owner.” Id. at cmt. f; see also Matoush v. Lovingood,

  177 P.3d 1262, 1270 (Colo. 2008) (“When an easement is created by

  adverse possession, a party uses land that is not in his or her

  possession, and does so in a way that is adverse to the property

  rights of the party who possesses the land.”); Restatement (Third) of

  Property: Servitudes § 2.16 cmt. a (when a prescriptive easement is

  claimed by adverse use, “a person begins using the property

  without the consent or authority of the owner and acquires a

  servitude if the use continues for the prescriptive period and [the

  use is open or notorious and continued without effective

  interruption]”).

¶ 21   So while a party claiming adverse possession must show that

  it asserted exclusive ownership of the property during the



                                     14
  prescriptive period, a party claiming a prescriptive easement

  doesn’t; in the latter context, the claimant need only show a

  nonpermissive or otherwise unauthorized use of property that

  interfered with the owner’s property interests. 7

¶ 22   A prescriptive easement claimant that shows that its use of

  the property was open and notorious and continuous for the

  statutory period is entitled to a presumption that its use was

  adverse. Trueblood v. Pierce, 116 Colo. 221, 233, 179 P.2d 671, 677



  7 To be sure, such a use without permission or authorization may
  support a claim of adverse possession. But such a showing is
  insufficient to show hostility; a claim of exclusive ownership is also
  required. In arguing that this requirement also applies to
  prescriptive easements, Lo Viento points to the following statement
  by Justice Kourlis in her dissenting opinion in Lobato v. Taylor, 71
  P.3d 938 (Colo. 2002): “This court has consistently held that the
  same requirement of adversity applies to acquiring easement and
  profit rights by prescription as to the acquisition of title by adverse
  possession.” Id. at 970-71 (Kourlis, J., dissenting). But Lo Viento
  takes that statement (which, in any event, is from a dissent) out of
  context. Justice Kourlis was arguing that Colorado courts had
  always required a showing of adversity to prove a prescriptive
  easement: she disagreed with the majority’s decision to follow the
  Restatement’s position that a prescriptive easement can also be
  created by an intended but ineffective grant. See id. at 971 (“Thus,
  the adoption of the second prong of the Restatement test, which can
  create a prescriptive right in the context of permissive, consensual
  use is contrary to our law, and I would decline to engraft it.”). She
  wasn’t saying that the adversity requirement is the same in both
  contexts in all respects.

                                    15
  (1947); LR Smith Invs., ¶ 15; Durbin v. Bonanza Corp., 716 P.2d

  1124, 1129 (Colo. App. 1986); see Brown v. Faatz, 197 P.3d 245,

  250 (Colo. App. 2008); Restatement (Third) of Property: Servitudes

  § 2.16 cmt. g, § 2.17 cmt. g. The landowner can rebut that

  presumption by showing that the claimant’s use at any time during

  the statutory period was permissive. Trueblood, 116 Colo. at 233,

  179 P.2d at 677; LR Smith Invs., ¶ 15. But if the landowner doesn’t

  meet that burden, and the claimant proves the other elements, the

  court must find a prescriptive easement. Trueblood, 116 Colo. at

  233, 179 P.2d at 677; LR Smith Invs., ¶ 15.

                         2.   Standard of Review

¶ 23   A trial court’s determination that a party is entitled to a

  prescriptive easement is one of fact. See Brown, 197 P.3d at 249;

  Trask v. Nozisko, 134 P.3d 544, 550 (Colo. App. 2006). And more

  specifically, whether a claimant’s use of property was adverse to the

  owner’s property interests is a question of fact, as is whether the

  use was permissive. LR Smith Invs., ¶ 25; Maralex Res., Inc. v.

  Chamberlain, 2014 COA 5, ¶ 21; cf. Smith, 772 P.2d at 56 (in the

  adverse possession context, “whether possession is hostile or

  adverse is a question of fact to be determined by the trier of fact”).


                                     16
¶ 24   We review findings of fact for clear error, meaning that we

  won’t disturb such findings if there is any evidence in the record

  supporting them. M.D.C./Wood, Inc. v. Mortimer, 866 P.2d 1380,

  1384 (Colo. 1994); see LR Smith Invs., ¶ 17 (appellate court must

  accept trial court’s findings concerning adversity of use if they have

  record support); Weisiger v. Harbour, 62 P.3d 1069, 1071 (Colo.

  App. 2002) (when the trial court bases its factual findings on

  competent evidence in the record, the appellate court won’t disturb

  its determination regarding a prescriptive easement). 8

¶ 25   But we review legal issues de novo. Brown, 197 P.3d at 249.

  Whether the trial court neglected to follow the law of the case or

  otherwise failed to apply correct legal principles — both of which Lo

  Viento asserts — are two such issues. See Ledroit Law v. Kim, 2015




  8 Lo Viento suggests that because the judge on remand relied on the
  previous judge’s findings of fact, those findings are subject to
  “heightened scrutiny.” But that test applies when a court adopts,
  virtually word for word, a party’s proposed findings of fact. See
  Uptime Corp. v. Colo. Research Corp., 161 Colo. 87, 92-93, 420 P.2d
  232, 234-35 (1966); Trask v. Nozisko, 134 P.3d 544, 549 (Colo. App.
  2006). That didn’t happen here. So we review the court’s findings
  of fact as we ordinarily do — for clear error, recognizing the trial
  court’s unique perspective to determine the credibility of witnesses
  and weigh conflicting evidence.

                                    17
  COA 114, ¶ 47; Hardesty v. Pino, 222 P.3d 336, 339 (Colo. App.

  2009).

              3.   Application: Woodbridge Proved Adverse Use

¶ 26      Lo Viento seizes on the prior division’s conclusion that

  Woodbridge’s June 1992 letter offering to buy the disputed parcel

  defeated Woodbridge’s claim for adverse possession because it

  showed that Woodbridge “did not claim superior title or have any

  right of ownership to the disputed parcel.” Woodbridge I, slip op. at

  7. It argues that this conclusion is the “law of the case” as to

  whether Woodbridge’s use of the disputed property was adverse

  because the prior division said that the letter “is sufficient to rebut

  the presumption of adversity raised by Woodbridge’s possession.”

  Id. 9

¶ 27      But in so arguing, Lo Viento fails to recognize that, as

  discussed above, in contrast to a claim to title by adverse

  possession, a claim for a prescriptive easement by adverse use


  9 Lo Viento seems to equate the trial court’s supposed failure to
  follow the law of the case with a failure to follow the prior division’s
  mandate. But the prior division’s mandate was to quiet title in Lo
  Viento “and to consider Woodbridge’s easement claims.” The trial
  court clearly did that. Whether the trial court followed the law of
  the case is a separate issue.

                                      18
  doesn’t require a party to show that it asserted exclusive ownership

  during the prescriptive period. The prior division’s conclusions

  about the June 1992 letter addressed only the requirement of

  adversity in the adverse possession context, and even then only as

  to whether Woodbridge had asserted exclusive ownership. Thus,

  the prior division’s holding didn’t control Woodbridge’s prescriptive

  easement claim. See Kuhn v. State, Dep’t of Revenue, 897 P.2d 792,

  795 (Colo. 1995) (appellate court’s prior decision wasn’t law of the

  case as to an issue it didn’t address); Rodgers v. Colo. Dep’t of

  Human Servs., 39 P.3d 1232, 1235 (Colo. App. 2001) (same).

¶ 28   To the extent Lo Viento argues as a matter of substantive law

  that Woodbridge’s mere recognition of Lo Viento’s predecessor’s title

  in 1991 and 1992 necessarily defeats Woodbridge’s claim of adverse

  use, that argument also fails.

¶ 29   True, “[u]ses made in subordination to the property owner are

  not adverse . . . .” Restatement (Third) of Property: Servitudes

  § 2.16 cmt. f. But

             [r]ecognition of the landowner’s title is not the
             same as subordination to that title.
             Subordination requires that the user act with
             authorization, express or implied, from the
             landowner, or under a claim that is derivative


                                     19
             from the landowner’s title. Use made in
             defiance of a recognized title is adverse to the
             title. The fact the user tried unsuccessfully to
             purchase a servitude from the landowner does
             not establish that his subsequent use was
             subordinate to the landowner’s title. . . . A use
             is adverse even though made in the mistaken,
             but good faith, belief that the user is entitled to
             make it, and it is adverse even if the user
             acknowledges that the land is owned by
             another and the user has no right to make the
             use.

  Id.; cf. Warsaw v. Chi. Metallic Ceilings, Inc., 676 P.2d 584, 588 (Cal.

  1984) (fact that claimants had tried to buy the parcel at issue or

  negotiate an express easement didn’t show that use was

  permissive); Rafanelli v. Dale, 924 P.2d 242, 247-49 (Mont. 1996)

  (attempts to negotiate over access didn’t show that use was

  permissive; claimants acted as if they had a right to use the access).

¶ 30         Woodbridge recognized that it didn’t hold title, but there

  isn’t any evidence that it acted in subordination to the owner’s title.

  Indeed, the evidence is to the contrary: Woodbridge consistently

  treated the disputed parcel as if it belonged to Woodbridge and did

  so (as discussed further below) without express or implied

  authorization.




                                     20
¶ 31   Lo Viento’s reliance on Trask to support this argument is

  misplaced. In that case, the division broadly stated as follows: “In

  general, when an adverse occupier acknowledges or recognizes the

  title of the owner during the occupant’s claimed prescriptive period,

  the occupant interrupts the prescriptive use.” Trask, 134 P.3d at

  553. With all due respect to the division in Trask, that statement is

  too broad, as we hope the foregoing discussion makes clear. See In

  re Estate of Gattis, 2013 COA 145, ¶ 27 (one division of the court of

  appeals isn’t bound by the decisions of other divisions). And the

  case Trask cites for this proposition, Pagel v. Reyman, 628 P.2d 166

  (Colo. App. 1981), on which Lo Viento also relies, doesn’t actually

  support it. In Pagel, the parties executed an agreement recognizing

  the landowner’s title. Id. at 168. This can be seen as an act in

  subordination of the owner’s title.

¶ 32   In any event, we aren’t bound by Pagel either. Pagel cites an

  adverse possession case, Segelke v. Atkins, 144 Colo. 558, 357 P.2d

  636 (1960), in support of its analysis. Pagel, 628 P.2d at 168. As

  discussed above, the rule in the prescriptive easement context

  concerning recognition of title differs from that which applies in the

  adverse possession context.


                                    21
¶ 33   Lastly, Lo Viento argues that it rebutted the presumption of

  adverse use by submitting evidence that in 1991 its predecessor in

  title gave Woodbridge permission to landscape the disputed parcel.

  Lo Viento is correct that a grant of permission would rebut the

  presumption of adverse use. But the record refutes its argument.

       In the letter on which Lo Viento relies, Foy said,

            The present owners have no objection to you
            landscaping the property they own as long as
            you have no claim for the property, trees,
            shrubs, etc. for the improvements and in the
            future if they decide to develop the area, the
            Woodbridge Condominium Association would
            not object to this as long as it was in keeping
            with the present properties.

            They also would like to have approval of one
            week’s use in the winter and one week’s use in
            the summer of one of the condominiums that
            is there now and they would only pay the
            service charges or the maid’s service,
            whichever you call it[,] for the use of this
            property.

¶ 34   The trial court found that (1) the permission offered in this

  letter was conditional and (2) Woodbridge never agreed to the

  conditions. These findings are supported by record evidence,

  including the letter itself and witness testimony. So in the end,

  there was no permission. It follows that Lo Viento failed to rebut



                                    22
  the presumption of adverse use. And because Woodbridge

  established the other required elements — a conclusion Lo Viento

  doesn’t contest — it is entitled to a prescriptive easement.

¶ 35   We turn then to Lo Viento’s challenges to the trial court’s

  findings as to the appropriate scope of the easement.

                     B.   The Scope of the Easement

¶ 36   The trial court ruled that Woodbridge has a prescriptive

  easement over most of the disputed parcel (all of it except the area

  south of the gravel road) for (1) maintaining the gravel road (as it

  currently exists) for purposes of providing access to the Woodbridge

  complex and parking along Building 31; (2) maintaining the

  disputed parcel as the entrance to the Woodbridge complex, with

  the rights to landscape the area, maintain signage, and use

  sprinklers and electrical lines; (3) skier access across the disputed

  parcel to the bridge; and (4) controlling drainage and erosion. And

  the trial court ruled that Woodbridge’s easement is exclusive — that

  is, only Woodbridge can use the disputed parcel for the approved

  purposes. The following diagram shows by cross-hatching the

  portion of the disputed parcel south of the gravel road not subject

  to the easement.


                                    23
¶ 37   Lo Viento attacks each aspect of the trial court’s rulings as to

  the scope of the easement. As to the four approved categories of

  uses specifically, Lo Viento essentially challenges the evidentiary

  bases for the court’s conclusions, though it mixes in a couple of

  challenges to exclusivity. As to exclusivity generally, Lo Viento




                                    24
  appears to argue that Colorado law doesn’t allow for exclusive

  prescriptive easements at all.

                         1.     Standard of Review

¶ 38   The parties assert, citing Cielo Vista Ranch I, LLC v. Alire, 2018

  COA 160, ¶ 65, that we should review the trial court’s findings as to

  the scope of the easement for an abuse of discretion. We don’t

  agree. The division in that case said that “[w]here compliance with

  the appellate mandate requires evidentiary or other post-remand

  factual determinations by the trial court, we review for an abuse of

  discretion.” Id. But the division was considering whether the

  process employed by the trial court on remand conformed to the

  mandate. And the division cited Murray v. Just In Case Business

  Lighthouse, LLC, 2016 CO 47M, ¶ 16, which concerned a challenge

  to an evidentiary ruling. Lo Viento doesn’t mount any such

  procedural or evidentiary challenge; rather, it challenges certain of

  the trial court’s findings of fact and certain discrete principles of law

  applied by the trial court.

¶ 39   As already noted, we review a trial court’s findings of fact for

  clear error, M.D.C./Wood, 866 P.2d at 1384, and we review legal

  issues de novo, Brown, 197 P.3d at 249.


                                     25
       2.    Application: The Scope of the Easement is Appropriate

                           a.   Permissible Uses

¶ 40   Before addressing directly Lo Viento’s arguments as to each of

  the four categories of permissible uses, we pause to acknowledge

  the legal principles governing any determination of permissible use

  under a prescriptive easement. The supreme court articulated

  those principles in Wright v. Horse Creek Ranches, 697 P.2d 384

  (Colo. 1985):

            • “[T]he extent of an easement created by prescription is

              fixed by the use through which it was created.” Id. at

              388 (quoting Restatement of Property § 477 (Am. Law

              Inst. 1944)).10

            • “[T]he beneficiary of an easement established by

              prescription will be permitted to vary the use of the




  10 The current version of the Restatement appears to be consistent
  with this notion. See Restatement (Third) of Property: Servitudes
  § 2.17 cmt. f (Am. Law Inst. 2000) (“The interest or estate burdened
  by a prescriptive servitude is determined by the nature and extent
  of the use made during the prescriptive period and by the interest of
  the person who had the legal right to terminate the use before the
  prescriptive period expired.”); id. at § 4.1(1) (“A servitude should be
  interpreted to give effect to . . . the circumstances surrounding
  creation of the servitude . . . .”).

                                     26
            easement to a reasonable extent.” Id. at 388-89. To

            determine “whether a particular use is permissible under

            an easement created by prescription a comparison must

            be made between such use and the use by which the

            easement was created with respect to (a) their physical

            character, (b) their purpose, [and] (c) the relative burden

            caused by them upon the servient tenement.” Id. at 388

            (quoting Restatement of Property § 478).

          • In determining whether a particular use is permissible,

            the court should also consider “the needs which result

            from a normal evolution in the use of the dominant

            [estate] and the extent to which the satisfaction of those

            needs increases the burden on the servient estate.” Id. at

            389 (quoting Restatement of Property § 479).

¶ 41   With these principles, and the appropriate standard of review,

  in mind, we reject Lo Viento’s challenges to the four categories of

  permissible uses found by the trial court as follows:

          (1) Gravel road. Contrary to Lo Viento’s suggestion, the

              evidence didn’t show that the gravel road was used by

              pedestrians (other than Woodbridge residents and


                                    27
            guests) during the prescriptive period. The historic use

            of the bridge, on which Lo Viento relies, is beside the

            point because the bridge isn’t part of the disputed

            property. And evidence supports the trial court’s

            finding that the gravel road was regularly used by

            vehicles for access to and parking near the Woodbridge

            complex, and by Woodbridge residents, guests, and

            maintenance personnel exclusively. Thus, the trial

            court’s determination of an exclusive easement for these

            purposes must stand. 11




11 Also, Lo Viento’s reliance on McIntyre v. Board of County
Commissioners, 86 P.3d 402, 413 (Colo. 2004), for the proposition
that “[t]ravel over vacant land is deemed permissive and cannot
serve as the predicate for a prescriptive use” is misplaced. The
disputed property isn’t truly vacant: it has a roadway, landscaping,
and signage. 4 Richard R. Powell, Powell on Real Property
§ 34.10[2][c], at 34-97 (Michael Allan Wolf ed. 2016) (presumption
of adversity may not apply if “the land over which the easement is
claimed is open, unenclosed, and unimproved”) (emphasis added).
And, in any event, McIntyre involved a claim to a public prescriptive
easement, a situation involving different considerations of public
policy. See also Lobato, 71 P.3d 938 (approving private prescriptive
easement over large swaths of vacant land); Simon by Simon v.
Pettit, 651 P.2d 418 (Colo. App. 1982) (involving claim of a public
prescriptive easement), aff’d, 687 P.2d 1299 (Colo. 1984).

                                  28
(2) Entrance to the Woodbridge complex. Lo Viento’s

   contention that the scope of the easement is fixed by the

   first use made of the disputed parcel — mowing,

   weeding, and watering to control drainage — is wrong

   on the law and inconsistent with the facts, as found by

   the trial court. The trial court found that Woodbridge

   made several different uses of the disputed parcel

   beginning as early as 1975, and Lo Viento cites no

   authority for the proposition that a prescriptive

   easement can have only one permissible use. Indeed,

   Wright holds to the contrary, adopting, as it did,

   sections 478 and 479 of the Restatement. And record

   evidence supports the trial court’s findings that the

   additional uses Woodbridge made of the disputed

   property over the years — e.g., adding landscaping and

   signage — were consistent with the uses through which

   Woodbridge obtained the easement — all of which

   related to treatment of the disputed parcel as an

   entrance to the Woodbridge complex. Put another way,

   these additional uses were merely changes in degree,


                         29
            not kind, and didn’t add any appreciable burden to the

            servient estate.

        (3) Skier access. The trial court found that skiers

            (Woodbridge residents and their guests) use the entirety

            of the developable portion of the disputed parcel. Lo

            Viento’s argument that skiers only used a gravel path is

            nothing more than an invitation for us to reweigh the

            evidence. That isn’t our role. Gagne v. Gagne, 2019

            COA 42, ¶ 51; IBC Denver II, LLC v. City of Wheat Ridge,

            183 P.3d 714, 719 (Colo. App. 2008). 12

        (4) Drainage and erosion control. Lo Viento’s challenge to

            this category of permissible uses is difficult to discern.

            It appears to want us to change the easement to

            “mandat[e] drainage control.” But it isn’t entirely clear

            how that is any different from what the trial court

            ordered. (Perhaps Lo Viento wants the use for drainage


12 Lo Viento also asserts, in purely conclusory fashion, that allowing
skier access over most of the disputed parcel “affects a taking in
violation of . . . Article II, § 4 of the Colorado Constitution.” We
don’t consider undeveloped and unsupported arguments. Am.
Family Mut. Ins. Co. v. Am. Nat’l Prop. & Cas. Co., 2015 COA 135,
¶ 42.

                                  30
              control to be not merely permissible, but mandatory.)

              And Lo Viento hasn’t pointed us to any place in the

              record where it asked the trial court for this relief. We

              are a court of review, not first look. See C.A.R.

              28(a)(7)(A) (the appellant’s opening brief must indicate

              “the precise location in the record where the issue was

              raised and where the court ruled”); Estate of Stevenson

              v. Hollywood Bar & Cafe, Inc., 832 P.2d 718, 721 n.5

              (Colo. 1992) (“Arguments never presented to, considered

              or ruled upon by a trial court may not be raised for the

              first time on appeal.”).

¶ 42   In sum, we don’t see any error in the trial court’s

  determinations as to the types of permissible uses.

                             b.    Exclusivity

¶ 43   We also reject Lo Viento’s contention that Colorado law doesn’t

  recognize exclusive easements. The cases on which Lo Viento

  relies, LR Smith Investments, Wright, and Lazy Dog Ranch v.

  Telluray Ranch Corp., 965 P.2d 1229 (Colo. 1998), don’t address

  that issue. But the Restatement recognizes that a prescriptive

  easement may be exclusive: “If the use is exclusive, the servitude


                                     31
  obtained is exclusive . . . .” Restatement (Third) of Property:

  Servitudes § 2.17 cmt. a; see also Gray v. McCormick, 84 Cal. Rptr.

  3d 777, 785-87 (Cal. Ct. App. 2008); Otay Water Dist. v. Beckwith, 3

  Cal. Rptr. 2d 223, 226-27 (Cal. Ct. App. 1991); 7 Thompson on Real

  Property § 60.04(a)(1)(iii), at 534 (2d David A. Thomas ed. 2006)

  (recognizing that an exclusive easement can occur by prescription).

  And the trial court found that Woodbridge’s use was exclusive — a

  finding that enjoys record support.

¶ 44   Relatedly, Lo Viento seems to assert that the trial court went

  too far in determining how Woodbridge may use the disputed parcel

  because the approved uses effectively prevent Lo Viento from

  making any beneficial use of the property. But Lo Viento hasn’t

  provided us with any coherent, developed argument on the point.

  We therefore don’t address it. See Vallagio at Inverness Residential

  Condo. Ass’n v. Metro. Homes, Inc., 2017 CO 69, ¶¶ 39-40 (declining

  to address conclusory assertions offered without supporting

  argument or authority); Barnett v. Elite Props. of Am., Inc., 252 P.3d




                                    32
  14, 19 (Colo. App. 2010) (“We will not consider a bald legal

  proposition presented without argument or development.”). 13

                            III.   Conclusion

¶ 45   We affirm the trial court’s judgment.

       JUDGE HARRIS and JUDGE BROWN concur.




  13 On the one hand, the current version of the Restatement
  recognizes that courts in some circumstances have been reluctant to
  find prescriptive easements when the use by the claimant is so
  extensive that the servient estate would be rendered valueless.
  Restatement (Third) of Property: Servitudes § 2.17 cmt. d and Note
  to cmt. d. On the other hand, the Restatement also recognizes that
  the owner’s use of the servient estate is limited to any use that
  doesn’t interfere with the easement holder’s use consistent with the
  easement. Id. at cmt. a; see also Restatement of Property § 481
  cmt. a (Am. Law Inst. 1944) (“The limitations of this privilege
  correspond with the extent of the easement.”). “The possessor of
  land subject to an easement created by prescription is privileged, as
  against the owner of the easement, to make such uses of the
  servient tenement as are not incompatible with the use authorized
  by the easement.” Restatement of Property § 481. And the
  prescriptive easement doctrine favors long-time users of property
  and penalizes owners who sleep on their rights, for several sensible
  reasons. Restatement (Third) of Property: Servitudes § 2.17 cmt. c.
  Lo Viento’s deficient briefing precludes us from properly considering
  this relatively complicated issue, as does its failure to have
  developed a sufficient factual record for us to assess the accuracy of
  its claim that it is unable to make any beneficial use of the disputed
  parcel.

                                    33
