Free Brief in Opposition to Motion - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-CV-0075- EWN- PAC ORIN LOOS, Plaintiff, v. LEVEL 3 COMMUNICATIONS, LLC, et al., Defendants. ____________________________________________________________________________ PLAINTIFF'S MEMORANDUM IN OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT _____________________________________________________________________________ The Motion for Summary Judgment ("Motion") of Defendants Level 3 Communications, LLC ("Level 3"), WilTel Communications, LLC f/k/a Williams Communication, Inc. ("WilTel"), Sprint Nextel Corporation f/k/a Sprint Corporation ("Sprint Nextel"), Sprint Communications Corporation (sic Company), LP ("Sprint CC"), and Union Pacific Railroad Company ("UP") (collectively "Defendants"), must be denied because the Defendants have failed to establish that they are entitled to judgment as a matter of law. The Defendants' selective reading of Tenth Circuit and United States Supreme Court authority ignores controlling precedent establishing that a federal land grant right-of-way to a railroad in even-numbered sections of United States territory is in the nature of an easement. As alleged by the Plaintiff, this limited grant did not carry with it the right to license the Defendants to use the right-of-way for the installation of fiber optic cable and related equipment. That right, along with all other property rights not conveyed to the railroad by federal land grant,

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was subsequently conveyed by a United States Land Patent to the Plaintiff's predecessors in interest. Contrary to the Defendants' argument, the Plaintiff now possesses an interest in the railroad right-of-way crossing his property that entitled him to damages for Defendants' unlawful use of the corridor. With respect to the statute of limitations, the period is not a bar to recovery, as argued by Defendants, but rather limits the duration of use for which the Plaintiff may seek damages. Under the doctrine of continuing trespass, each day of unsanctioned use of the Plaintiff's interest in the right-of-way amounts to a new trespass for which recovery may be obtained. As such, the statute of limitations is considered to run anew for this continuing intrusion, limiting the Plaintiff's damages but not barring his right to recovery. Finally, the assertion that Sprint Nextel Corporation did not participate in the installation or operation of fiber optic cable in the right-of-way crossing the Plaintiff's property does not entitle it to judgment as a matter of law. Plaintiff has alleged that Sprint Nextel was unjustly enriched by the receipt and retention of benefits from its subsidiary's unlawful use of the rightof-way easement. This claim is not extinguished by the facts asserted in support of summary judgment. I. RESPONSE TO DEFENDANTS' STATEMENT OF UNDISPUTED FACTS. The Plaintiff admits Paragraphs 1 through 17 of the Defendants' Statement of Undisputed Facts. The Plaintiff denies Paragraph 18 of the Defendants' Statement of Undisputed Facts because they are not consistent with the designated record. Paragraph 18 of Defendants' Motion asserts that "[o]ne of the three telecommunications companies that Plaintiff alleges installed fiber

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optic cable in the Right of Way sent him a letter, before installing the cable, to inform him it might be doing so." However, none of the cited pages of the Deposition of Plaintiff Orin Loos, submitted in the Appendix of Exhibits to Memorandum in Support of Defendants' Motion for Summary Judgment ("Def. App.") as Exhibit A-10 ("Loos Depo."), nor any other portion of the deposition, makes this statement. Instead, Mr. Loos testified that he "received a letter from a cable company at one time that they were going to lay cable, ...." Loos Depo., p. 70, l.13 to 15 (emphasis added). Mr. Loos further testified that he did not recall the identity of the company that sent the letter or when he received it. Loos Depo., p. 103, l.5 to 22. The cited record does not support the assertions that: (i) one of the three fiber optic Defendants sent a letter to the Plaintiff; (ii) a "telecommunications" company sent the letter; or (iii) whoever sent the letter did so "before installing the cable." The Plaintiff denies Paragraph 19 through 22 of the Defendants' Statement of Undisputed Facts because they are also not consistent with the designated record. Each of these Paragraphs refers to a "telecommunications company" and to "fiber optic cable," while Mr. Loos only testified that he "received a letter from a cable company at one time that they were going to lay cable, ...." Loos Depo., p. 70, l.13 to 15 (emphasis added). The Plaintiff further denies Paragraph 19 through 22 to the extent the Defendants intend to suggest the "telecommunications company" referred to therein is one of the Defendants. Mr. Loos testified that he did not recall the identity of the company that sent the letter or when he received it. Loos Depo., p. 103, l.5 to 22. The Plaintiff admits Paragraphs 23 through 26 of the Defendants' Statement of Undisputed Facts.

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II.

ARGUMENT. A. Summary Judgment Standard.

Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The court views the evidence and all reasonable inferences derived therefrom in the light most favorable to the nonmoving party. Kidd v. Taos Ski Valley, Inc., 88 F.3d 848 (10th Cir. 1996); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The moving party must initially show not only an absence of a genuine issue of material fact, but also an entitlement to judgment as a matter of law. Adler v. Wal-Mart Stores Inc., 144 F.3d 664, 670 (10th Cir. 1998). While there is little dispute as to the material facts asserted by the Defendants, they have failed to establish that they are entitled to judgment as a matter of law. The Motion must therefore be denied. B. As a Matter of Law Union Pacific Does Not Own Fee Title to the Right-Of-Way.

The Defendants' argument that UP owns the fee title to the right-of-way crossing the Plaintiff's property rests on language that has been recognized by the United States Supreme Court as innately confusing. Missing from the authority cited by Defendants is the relatively recent case of United States v. Union Pacific Railroad Co., 353 U.S. 112, 77 S.Ct. 685, 1 L.Ed.2d 693 (1957), in which the Supreme Court reversed a Tenth Circuit opinion and confirmed the limited nature of railroad right-of-way grants under the 1862 Land Grant Act. The case arose when the United States sought to enjoin UP from drilling for oil and gas on "the right of way"

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granted it by Section 2 of the Act of July 1, 1862, 12 Stat. 489 (1862 Act"), the Land Grant Act under which Defendants now claim UP obtained fee simple title to its right-of-way. See, Opening Brief in Support of Defendants' Motion for Summary Judgment ("Def.Br."), p.1. The Court began by referring to the basic language of the Act itself. Section 2 of the Act, which applies to the property in question in this case, states that "the right of way through the public lands be, and the same is hereby, granted to said company for the construction of said railroad and telegraph line; ..." 1862 Act, §2, Def. App., Tab A-1. The Supreme Court construed this language as follows: On the face of the Act it would seem that the use of the words `the right of way' describes a lesser interest than the grant of `public land.' Moreover, this right of way was granted Union Pacific `for the construction of said railroad and telegraph line.' s 2. That purpose is not fulfilled when the right of way is used for other purposes. See Northern Pacific R. Co. v. Townsend, 190 U.S. 267, 271, 23 S.Ct. 671, 672, 47 L.Ed. 1044. It would seem that, whatever may be the nature of Union Pacific's interest in the right of way, drilling for oil on or under it is not a railroad purpose within the meaning of s 2 of the Act. Union Pacific, 77 S.Ct. at 686 (emphasis added). The Court thus concluded that the right-of-way under Section 2 of the 1862 Act did not convey the right to drill for minerals and gas. In support of its position Union Pacific argued, as it and the other Defendants do here, that the use of the term "limited fee" in Northern Pacific R. Co. v. Townsend, 190 U.S. 267, 271, 23 S.Ct. 671, 672, 47 L.Ed. 1044 (1903), and earlier cases established that the railroad's predecessor received fee simple title to the right-of-way granted under Section 2 of the 1862 Act. The Supreme Court rejected this argument. Citing to a number of cases1 using the "limited fee"

In addition to the Court's consideration of Townsend, the cases listed by the Court in the 1957 Union Pacific case when rejecting this broad reading of the "limited fee" language were the principal cases cited by Defendants here, including St Joseph & D. C. Railroad Co. v. Baldwin, 103 U.S. 426, 26 L.Ed. 578 (1880), Missouri, K. & T.R. Co. v. Roberts, 152 U.S. 114, 14 S.Ct. 496, 38 L.Ed. 377 (1894), and Territory of New Mexico v. United States Trust Co., 172 U.S. 171, 19 S.Ct. 128, 43 L.Ed. 407 (1898).

1

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language, the Court stated, "The most that the `limited fee' cases decided was that the railroads received all surface rights to the right of way and all rights incident to a use for railroad purposes." Union Pacific, 77 S.Ct. at 688-89. This rule of law is consistent with the claims now brought by the Plaintiff. This language was applied by the Tenth Circuit Court of Appeals in a case cited by Defendants, Wyoming v. Udall, 379 F.2d 635 (10th Cir. 1967), cert. denied, 389 U.S. 985, 88 S.Ct. 470, 19 L.Ed.2d 479, to again refute the suggestion that the language used in Townsend and earlier cases meant that railroads received fee title to rights-of-way under the 1862 Act: For the purposes of this case, we are not impressed with the labels applied to the title of the railroads in their rights-of-way across the public lands of the United States. The concept of 'limited fee' was no doubt applied in Townsend because under the common law an easement was an incorporeal hereditament which did not give an exclusive right of possession. With the expansion of the meaning of easement to include, so far as railroads are concerned, a right in perpetuity to exclusive use and possession [FN22] the need for the 'limited fee' label disappeared. Udall, 379 F2d at 640. As Union Pacific and Udall make clear, the grant of a right-of-way under Section 2 of the 1862 Act did not convey fee simple title to UP's predecessor, but merely "all surface rights to the right of way and all rights incident to a use for railroad purposes." Union Pacific, 77 S.Ct. at 688-89. The Tenth Circuit Court of Appeals has applied the Supreme Court's Union Pacific decision, and its own Udall decision, to facts directly applicable to the present case. The decision in Energy Transportation System, Inc ("ETSI") v. Union Pacific Railroad Co., 606 F.2d 934 (10th Cir. 1979) confirms that in this Circuit a railroad's interest in its right-of-way, obtained under Section 2 of the 1862 Act, is limited to the purpose of operating a railroad, and that the railroad cannot interfere with the non-conflicting rights that remain in the servient owner. In the

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ETSI case, ETSI proposed to build an underground pipeline to transport finely ground coal in a water slurry from coal fields in Wyoming to Arkansas. To do so, it obtained an easement from the owner of an even-numbered section of land in Wyoming. As in this case, the Union Pacific's railroad tracks traversed and cut in two the tract of land whose owner granted an easement to ETSI. Union Pacific objected to the building of the pipeline under its right-of-way, claiming it held the right to grant such subsurface use of the property. ETSI sought a declaratory judgment confirming the authority received from the owner of the servient estate. ETSI, 606 F.2d at 935. The ETSI court began by considering the U.S. Land Patent by which the landowner's predecessor obtained title, and then concluded that "under the homestead patent in 1913 Maggie Majors acquired All (sic) interest that the United States Then (sic) possessed in the North Half of Section 2, with certain possible exceptions not here pertinent." Id. at 936. The court then identified succinctly the issue of the case: The real question then, is what interest did the United States have in the North Half of Section 2 in 1913? The answer to that question depends, in turn, on the interest granted the railroad by the United States under the Pacific Railroad Acts of 1862 and 1864. If that grant included the servient estate to the surface right-ofway, then the servient estate was removed from the category of unappropriated public lands, and the servient estate could not have been conveyed to Maggie Majors under her homestead patent in 1913. If, however, the servient estate beneath the right-of-way was not granted the railroad by the United States, then the servient estate remained in the category of unappropriated public lands and thereafter passed to Maggie Majors under her homestead patent. Id. This same issue controls here, in that the Plaintiff's predecessor obtained title to the land in question pursuant to a U.S. Land Patent in 1914, and UP received its right-of-way crossing the

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parcel pursuant to Section 2 of the 1862 Act. See, Defendants' Statement of Undisputed Facts, ¶¶ 2,3, Def. Br., p. 2; United States Land Patent, Def. App., Tab. A-5.2 The ETSI court next turned to Section 2 of the 1862 Act, which granted Union Pacific's predecessor a right-of-way to the extent of 200 feet in width on each side of said railroad through public lands for the construction of a railroad line. The court concluded of the Act's language that "[s]uch words themselves suggest that Union Pacific's predecessor received something less than a fee simple absolute, and, in the words of the statute, received a right-of-way." ETSI, 606 F.2d at 936. The court then concluded that, in light of the Land Patent and the plain language of Section of the 1862 Act, the right to permit a non-railroad use of the subsurface of the right-ofway was held by the servient landowner: Without belaboring the point, we are convinced, as was the trial court, that the grant to Union Pacific's predecessor pursuant to section 2 of the Pacific Railroad Act of 1862 was just what the statute said it was, the grant of the right-of-way, and did not convey title to the servient estate underlying the right-of-way. Such being the case, the servient estate remained with the United States and later passed under the homestead patent to Maggie Majors. We believe the result reached by the trial judge to be the proper one, and we generally subscribe to his reasoning. Id. at 937. The result reached by the trial judge and approved by the ETSI court was that Union Pacific received only an easement in the rights-of-way granted under Section 2 of the 1862 Act, and that all non-conflicting rights passed to the servient estate by virtue of the homestead patent

The U.S. Land Patent to Plaintiff Orin Loos' predecessors also includes "exceptions not here pertinent." The grant is made "subject to any vested and accrued water rights for mining, agricultural, manufacturing or other purposes, and rights to ditches and reservoirs used in connection with such water rights, as may be recognized by the local customs, laws and decisions of courts; and there is reserved from the lands hereby granted a, a right of way thereon for ditches or canals constructed by the authority of the United States." Id.

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from the United States. Energy Transp. Systems, Inc. v. Union Pac. R. Co., 435 F.Supp. 313, 317 (D.Wyo. 1977).3 As it does here, along with the other Defendants, Union Pacific argued in ETSI that Townsend stood for the proposition that Section 2 of the 1862 Act granted fee title to railroads. The Tenth Circuit disagreed, explaining as it did in Udall that the "limited fee" concept was being misapplied by Union Pacific: The "limited fee" concept enunciated in Townsend was severely cut back in United States v. Union Pacific Railroad Co., 353 U.S. 112, 77 S.Ct. 685, 1 L.Ed.2d 693 (1957). That case involved a dispute between the United States and Union Pacific over the right to drill for oil and gas underlying the railroad's rightof-way. The Supreme Court in that case held that the exception of "mineral lands," referred to in section 3 of the Pacific Railroad Act of 1862, applied also to rights-of-way granted under section 2 of that same Act, and that under a grant of a right-of-way under section 2 the railroad received no right to oil and gas underlying the right-of-way. Apparently, the Supreme Court in Townsend was also faced with the limited fee argument. In that regard the Court stated that "the most the `limited fee' cases decided was that the railroad received all Surface rights to the right of way and all rights incident to a use for railroad purposes." ETSI, 606 F.2d at 936-37, citing Union Pacific, 353 U.S. at 119, 77 S.Ct. at 689. The ETSI court further cited Udall for its conclusion that "the need for the `limited fee' label" has disappeared. Id. at 937.
3

The District Court opinion of Judge Brimmer, approved by the Tenth Circuit, is pointed: The only conclusion that this Court can reach, after careful reading of the foregoing cases, is that Congress under the Pacific Railroad Acts of 1862 and 1864 separated the servient estate from the right of way grant made to the Defendant. The railroad did not get a fee simple absolute title to the land within the right of way. Out of what Professor Hohfeld said was a "complex aggregate of rights (or claims), privileges, powers and immunities" (26 Yale Law Journal 746) that we call "land," Congress granted the railroad exclusive use of the surface of the right of way, with broad and extensive rights of sub-lateral and subjacent support to prohibit interference with railroad operations and maintenance; but, from that Hohfeldian bundle of sticks, Congress held back some, like the right of reverter and the subsoil and mineral rights except where the lands were "coal or iron lands." The lands in question are not within the latter category. That it granted only an easement for the right of way cannot be gainsaid.

Id.

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Despite its direct application to this case, and its continuing presence as unaltered authority, the Defendants relegate consideration of the ETSI opinion to a footnote. Def. Br., p. 11, fn.1. Defendants can only argue that ETSI was wrongly decided in light of Townsend and its predecessor cases, but they fail to distinguish ­ much less mention ­ the Supreme Court's 1957 Union Pacific case clarifying that the "limited fee" language is obsolete and did not, in any event, mean what Defendants now argue it means. Indeed, Defendants claim ETSI was wrongly decided in light of Udall, even though the Tenth Circuit considered Udall and relied directly upon the decision in support of its holding. This error is also found in the two Tenth Circuit decisions relied upon by Defendants. What is most significant about Union Pacific Ry. Co. v. City of Atoka, 2001 WL 273298 (10th Cir. 2001), and Missouri, Kansas & Texas Ry. Co. v. Early, 641 F.2d 856 (10th Cir. 1981), is that they do not discuss the ETSI opinion and do not consider the post-Union Pacific treatment of the "limited fee" language found in Townsend and earlier cases. It follows that both cases must be harmonized with the authority of ETSI. One distinguishing factor is that both cases concern not the 1862 Act but 1866 Acts of Congress. Early, 641 F.2d at 857-58; Atoka, 2001 WL 273298,*1. Another is that the Early opinion concerns a unique issue of tribal lands granted to the railroad. Early, 641 F.2d at 858. Most important, though, is that neither incorporates the Union Pacific court's plain rejection of the argument that federal land grants of right-of-way did not covey fee title to railroads. The same misapplication of Townsend, and failure to apply ETSI and Udell, pervades the brief analysis put forth in Kunzman v. Union Pacific Railroad Co., 456 P.2d 743 (Colo. 1986).

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In short, the Defendants' argument ignores controlling authority in this Circuit finding that Section 2 of the 1862 Act did not convey to Union Pacific title to even-numbered sections like the one owned by the Plaintiff. Union Pacific received only an easement for the purpose of operating a railroad, with all remaining rights vesting in the Plaintiff by virtue of his predecessors' Land Patent from the United States. Because the central premise of the Defendants' argument fails as a matter of law, the Motion for Summary Judgment should be denied. C. The Plaintiff Owns Fee Title to the Land Underlying Union Pacific's Right-of-Way.

The same flaws which undermine the Defendants' argument that Union Pacific owns its right-of-way in fee prevent the conclusion that the Plaintiff does not possess and interest in the Union Pacific right-of-way crossing his property. The "appropriation doctrine" argument raised by Defendants was considered and rejected by the District Court's opinion in ETSI, approved by the Tenth Circuit, which held that "the servient estate was separated from the surface grant" and "the servient estate retained by the United States then passed to the subsequent patentee under the Homestead Act of 1862." ETSI, 435 F.Supp. at 319. In fact, in rejecting the "appropriation doctrine," the District Court in ETSI rejected the reading of Udall now urged by the Defendants: The Court is not unmindful of apparently contrary language in Wyoming v. Udall, where the Court held that the servient estate did not pass with the land grant to the State of Wyoming. The grant there involved school lands that were subject to a railroad right of way and the right of the railroad to the subsurface coal and iron. The state could have made an "in lieu selection" so as to receive an indemnity for the land encumbered by the railroad grant but failed to make such a selection, and the Court found that this failure worked as a forfeiture of the encumbered land. The Court stressed that Wyoming's Enabling Act exempted "all mineral lands" from the grant to the State, and said " . . . the decision here depends on the narrow issue of construction of the Wyoming Enabling Act in the light of the 1862 and

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1864 Acts and the decisions relating thereto." The Udall case is unique and not controlling. Id. at 317-18. This conclusion, while not adopted verbatim, was approved by the Tenth Circuit. The Defendants' flawed rejection of ETSI, and their citation to authority from other Circuits, cannot alter the effect of controlling authority in this Circuit. Like the previous landowners discussed in ETSI, the predecessors of Orin Loos obtained fee title to a quarter of an even-numbered section of land from the United States. That property is burdened by an easement held by the Union Pacific, but the servient estate remained with the United States after the 1862 Act grant, and later passed under the Land Patent and subsequent conveyances to the Plaintiff. Defendants' argument that the Plaintiff does not own the fee to the estate underlying Union Pacific's right-of-way is incorrect as a matter law. For this additional reason, the Motion should be denied. D. The Plaintiff's Claims Against the Sprint Defendants Are Not Barred by the Statute of Limitations.

Defendants Sprint Nextel and Sprint Communications Company, LP ("Sprint Defendants") assert that the Plaintiff's claims against them are barred by the two and three year statutes of limitation applying respectively to trespass and unjust enrichment. Def. Br., p. 12. According to the Sprint Defendants, the Plaintiff was on notice of their intrusion upon his property either from the time that a warning sign was posted or from the time that a letter was sent from a "telecommunications" to Mr. Loos. Def. Br., p. 13. This argument fails as a matter of both fact and law. As set forth above in response to the Defendants' Statement of Undisputed Facts, Mr. Loos testified that he "received a letter from a cable company at one time that they were going to

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lay cable, ...." Loos Depo., p. 70, l.13 to 15 (emphasis added). Mr. Loos further testified that he did not recall the identity of the company that sent the letter or when he received it. Loos Depo., p. 103, l.5 to 22. Therefore, the Plaintiff did not testify ­ and no designated evidence establishes ­ that he received a letter from any of the fiber optic Defendants, or when he received the letter from "a cable company." It simply does not follow from the limited testimony taken from the Plaintiff abut "the letter" that he was on notice, for purposes of the statute of limitation, that Sprint had installed fiber optic cable on his property. It is also impossible on this designated evidence to determine ­ as admitted by the Sprint Defendants ­ when the letter was received. The same shortfall is present with respect to the Sprint Defendants' sign. Mr. Loos testified that he was aware of the sign, but there is no testimony by Mr. Loos stating when he became aware of the sign. Defendants' Statement of Undisputed Material Facts, ¶¶23-26. Nor does the sign, as described by Defendants, necessarily alert a reader that the installation was unlawful. If, for example, the Sprint Defendants' fiber optic cable was installed purely for railroad purposes, this might not have exceeded the scope of Union Pacific's easement. The wholesale commercial nature of the installation is not disclosed by the word "WARNING" or the Sprint name and logo. Defendants' Statement of Undisputed Material Facts, ¶17. The burden rests upon the Defendants to establish an absence of a genuine issue of material fact and an entitlement of judgment as a matter of law. Adler, 144 F.3d at 670. The Sprint Defendants' designations in support of their statute of limitations argument fail to meet this initial burden. The Plaintiff's testimony concerning a letter from "a cable company" cannot establish that any Defendant put the Plaintiff on notice, or even when the letter was sent or received. Evidence of the mere placement of a sign stating "WARNING" with the Sprint

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Defendants' logo does not establish that the Plaintiff knew or should have known that the Sprint Defendants placed their fiber optic cable in his property for a non-railroad purpose. The Sprint Defendants therefore have not established facts supporting judgment as a matter of law, and ­ more important ­ have designated facts sufficient to shift the burden to the Plaintiff to create a genuine issue. Colorado recognizes the doctrine of "continuing trespass." Under this rule, a trespass is considered a continuing wrong, carrying forward the statute of limitations until the incursion is remedied: In the context of trespass, an actor's failure to remove a thing tortiously placed on another's land is considered a "continuing trespass" for the entire time during which the thing is wrongfully on the land. Until the thing tortiously placed on the land, or underneath the land, is removed, then liability for trespass remains. *** For continuing intrusions ­ either by way of trespass or nuisance ­ each repetition or continuance amounts to another wrong, giving rise to a new cause of action. The practical significance of the continuing tort concept is that for statute of limitation purposes, the claim does not begin to accrue until the tortious conduct has ceased. Hoery v. United States, 64 P.3d 214, 218 (Colo. 2003) (emphasis added), citing RESTATEMENT (SECOND) OF TORTS § 161 cmt. B; 75 AMER. JUR.2D TRESPASS § 26 (2002); FOWLER V. HARPER
ET AL.,

THE LAW OF TORTS § 1.7 (3d ed.1996). See also, Steiger v. Burroughs, 878 P.2d 131,

136 (Colo. Ct. App.1994) (defendant's house remaining on plaintiff's property constituted continuing trespass). Thus, the applicable statutes of limitation can only limit the time period for which the Plaintiff may seek damages, but do not bar his claims. The cases cited by the Sprint Defendants for their "reasonable diligence" argument are inapposite. Sandoval v. Archdiocese of Denver, 8 P.3d 598 (Colo. Ct. App. 2000), is a case alleging negligence for sexual assault of a child. The case does not concern trespass, and does

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not hold that a reasonable diligence requirement applies under the doctrine of continuing trespass. Harrison v. Pinnacol Assur., 107 P.3d 969 (Colo. Ct. App. 2004), is a workers compensation case, and similarly does not concern trespass or hold that a reasonable diligence requirement applies under the doctrine of continuing trespass. Neither case provides any basis to alter the continuing trespass rule adopted by Colorado courts. The Sprint Defendants have failed as a matter of both fact and law to establish a right to summary judgment under the applicable statutes of limitation. This aspect of the Motion should therefore also be denied. E. Sprint Nextel is Not Entitled to Summary Judgment.

Defendant Sprint Nextel asserts that it is entitled to summary judgment because it "did not participate in any manner in the installation or construction of the fiber optic cable or telecommunications network that is the subject of this action," and therefore "engaged in none of the conduct alleged in the Complaint as a basis for Plaintiff's claims." Def. Br., p. 13. This brief argument fails because direct "installation," "construction" and "operation" of fiber optic cables and equipment are not the only bases on which the Plaintiff alleges that Sprint Nextel is liable. Plaintiff alleges that Sprint Nextel "by itself or through its divisions, subsidiaries, affiliates, joint venture partners, agents or otherwise, owns and operates telecommunications equipment and provides telecommunications and related services throughout the United States, including fiber optic and other telecommunications cable, and is legally responsible for the acts of its subsidiaries, affiliates, joint venture partners, agents, and predecessors in interest, including Sprint Corporation, that are described in this Complaint." Complaint, ¶10. The Complaint further alleges that Sprint Nextel has been unjustly enriched through the unlawful commercial

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use of his land, which has resulted in the receipt and retention by Sprint Nextel of funds in the form of rents, profits, and other benefits properly payable to the Plaintiff. Complaint, ¶41. In short, Plaintiff alleges that Sprint Nextel has received payments, profits or other benefits from the unlawful use of his property. These allegations are not contrary to the Sprint Defendants' designated affidavit testimony, which simply says that Sprint Nextel did participate in the "installation" or "construction" of the Sprint Defendants' long-distance network, Affidavit of Brian Jordan, Def. App., Tab A-9, ¶4, and does not "operate" the network. Id. at ¶5. The carefully selected language does not foreclose the basic allegation of Count II of the Complaint that Sprint Nextel was unjustly enriched at the Plaintiff's expense. A claim for unjust enrichment under Colorado law is not barred by Sprint Nextel's less direct role in the use of the Plaintiff's property. A claim for unjust enrichment does not require any promise or privity between the parties. Salzman v. Bachrach, 996 P.2d 1263, 1265 (Colo. 2000), en banc. It is a judicially created remedy designed to avoid benefit to one to the unfair detriment of another, and requires only that "(1) at plaintiff's expense (2) defendant received a benefit (3) under circumstances that would make it unjust for defendant to retain the benefit without paying." Id. at 1265-66. These basic elements are easily met by the Plaintiff's allegations and are not put in dispute by Mr. Jordan's conclusory statements. Sprint Nextel is alleged to have received a financial benefit from selling telecommunications services throughout the nation using, in some part, the portion of its network crossing the land of the Plaintiff, when it had not lawful right to do so. Complaint, ¶¶10, 41. Sprint Nextel therefore is not entitled to judgment as a matter of law under the evidence designated. This element of the Motion must therefore also be denied.

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III.

CONCLUSION For the foregoing reasons, the Defendants are not entitled to judgment as a matter of law

and their Motion for Summary Judgment should be denied in all respects. Respectfully submitted,

Date: January 23,2006

s/Charles W. Lilley____________ S/Karen Cody-Hopkins_________ Charles W. Lilley, #9943 Karen Cody-Hopkins, #35367 Lilley & Garcia, LLP 1600 Stout Street, Ste. 1100 Denver, CO 80202 T: (303) 293-9800 F: (303) 298-8975 [email protected] [email protected]

Irwin B. Levin Scott D. Gilchrist, #027774 Cohen & Malad, LLP One Indiana Square, Suite 1400 Indianapolis, IN 46204 T:(317) 636-6481 F: (317) 636-2593 Samuel D. Heins Stacey L. Mills David L. Woodward Heins Mills & Olson P.L.C. 3550 IDS Center 80 South Eighth Street Minneapolis, MN 55402 T: (612) 338-4605 F: (612) 338-4692 Attorneys for Plaintiffs

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CERTIFICATE OF SERVICE The undersigned hereby certifies that on January 23, 2006, I electronically filed PLAINTIFF'S MEMORANDUM IN OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT using the CM/ECF system which will send notification of such filing to the following counsel via their emails on file (as listed below) with the U.S. District Court for the District of Colorado's CM/ECF system: Daniel Warden Bond & Morris 303 17th Avenue, #888 Denver, CO 80203 (303) 837-9222 / Fax: (303) 837-0849 [email protected] Jonathon D. Bergman DAVIS GRAHAM & STUBBS LLP 1550 17th Street, Suite 500 Denver, CO 80202 (303) 892-9400 /Fax: (303) 893-1379 [email protected] Ron Bodinson Gregory T. Wolf Joseph Michael Rebein SHOOK, HARDY & BACON L.L.P. 84 Corporate Woods 10801 Mastin, Suite 1000 Overland Park, KS 66210-1669 (913) 451-6060 /Fax: (913) 451-8879 [email protected] [email protected] [email protected] Steven E. Napper Union Pacific Railroad Company Law Department 1331 Seventeenth Street, #406 Denver, CO 80202 [email protected] J. Kevin Haves {& Pamela Anderson) HALL, ESTILL, HARDWICK, GABLE GOLDEN & NELSON, P.C. 320 South Boston #400 Tulsa, OK 74103 (918) 594-0400 / Fax: (918) 594-05050 [email protected] J. Emmett Logan STINSON MORRISON HECKER LLP 1201 Walnut, Suite 2900 Kansas City, MO 64106-2150 (816) 842-8600 /Fax: (816) 691-3495 [email protected] Joseph E. Jones Fraser, Stryker, Meusey, Olson, Boyer & Bloch 409 South 17th Street, #500 Omaha, NE 68102 [email protected]

S/Karen Cody-Hopkins________________ Karen Cody-Hopkins, #35367 Lilley & Garcia, LLP 1600 Stout Street, Ste. 1100 Denver, CO 80202 18

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T: (303) 293-9800 F: (303) 298-8975 [email protected]

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