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Couple will appeal 'adverse possession' ruling
Kirlins locked in legal battle after ex-judge claimed their land using 'adverse possession'
By Heath Urie (Contact)
Thursday, November 15, 2007

Don and Susie Kirlin stand on their property in Boulder's Shanahan Ridge subdivision in front of the home of their neighbors Richard McLean and Edith Stevens on Wednesday. A judge's recent decision gave ownership of a portion of the Kirlins' property to McLean and Stevens.
A couple in south Boulder who last month lost a big chunk of their million-dollar property when a district court judge awarded it to their neighbors said Wednesday they are prepared to appeal the decision all the way to the Colorado Supreme Court.

Don and Susie Kirlin have been locked in a legal battle for more than a year over one of their two properties in the 2000 block of Hardscrabble Drive in the Shanahan Ridge subdivision.

The fight began in October 2006, when former district court judge and Boulder mayor Richard McLean and his wife, attorney Edith Stevens, decided to assert a little-known legal doctrine known as "adverse possession" to claim their neighbor's landas their own.

The law allows people to claim land that they have used for at least 18 years as their own if they are more "attached" to it than its true owners.

Boulder District Court Judge James C. Klein last month ordered the Kirlins to sign over the title to about 34 percent of their 4,750-square-foot lot to their neighbors, who said in court that they knowingly trespassed on their neighbor's property unchallenged for 25 years. The land includes an access path.

McLean and Stevens have since asked the judge to award them an additional section of the Kirlins' property about 9 inches wide by 80 feet long, since the final ruling included only about half of the path. The couple also has asked for the Kirlins to pay their legal fees and court costs. A ruling on those requests is expected within a few weeks.

The Kirlins, who since 1980 have lived just down the street from the disputed property, said they always intended to build their "dream house" on the lot once their youngest child left home.

"Time kept passing by," said Don Kirlin, a commercial airline pilot. "Twice over 23 years we met with architects and drew up plans to build (a house) on the lot."

Last fall, the Kirlins decided it was time to finally build on the property — which, they estimate, is worth between $800,000 and $1 million and features a clear view of surrounding open space and the nearby mountains.

Shortly after their decision to build, Susie Kirlin said, she attended a Fairview High School football game where a friend told her McLean and Stevens were talking with other neighbors about using the adverse-possession argument to take over a portion of the Kirlins' land.

The next day, the Kirlins applied for and received a permit from the city to build a fence to block access to their land. But just a few hours after the couple began putting down stakes, someone knocked on their door to serve them a restraining order signed by Boulder District Judge Morris Sandstead. The document, ordering an immediate halt to construction, was requested by McLean and Stevens.

"I thought, 'I've never met this individual, I've never seen this individual, I'm going to see (McLean) and see if we can talk this out,'" Don Kirlin said. "I introduced myself. ... I said, 'If there's an issue, let's work this out.' His only response was, 'We're gonna start an action.'"

The Kirlins said they understood the issue was that their neighbors wanted continued access through the property to their backyard. Don Kirlin said he offered to give the couple 5 feet of his land from the existing fence line to accommodate the concern, but his offer was rejected. He said he now thinks there was an ulterior motive for the lawsuit.

"I believe that their intent was not to have access to their backyard, as they claim, but actually to make my lot un-buildable so they would be able to maintain their view of the southwest."

The lot under dispute is about 55 feet wide by 80 feet long. The lot would be too small to build a house on if a third of it is taken away, the Kirlins say.

Neither McLean nor Stevens would comment about the case last week, and they could not be reached Wednesday.

The Kirlins maintain they had "absolutely no idea" anyone was using their property, or they would have acted to stop it. For their neighbors to claim adverse possession is a misuse of their backgrounds in law, the Kirlins say.

"They're not supposed to use their knowledge of the law for personal gain over laypeople," Don Kirlin said. "This person was supposed to be the moral compass of our community. While this person was a sitting judge, he was trespassing on his neighbor's property with the intent of taking it away from him. Just because it's legal doesn't mean it's moral."

The Kirlins say they expect to file their appeal with the district court within the next week.

They expect their legal fees, already about $110,000, will top $250,000 if the case continues to the state Supreme Court for review. The entire appeal process could take three years, the couple said.