Another Boulder homeowner has lost their property to their neighbor through adverse possession. A Boulder judge has ruled against the titled landowner and deemed that the neighbor had more of a claim to the property than the owner. What follows is the story of Dana Marshall and how she lost her land. If you also check out the link to the Daily Camera, dated May 11, 2008, you can read about the story and also read the judges ruling regarding this case.
Dana Marshall, Defendant
Case No. 07 CV 431
Boulder County District Court
The Other Side of The Story
“The only thing necessary for evil to flourish is for good men to do nothing.”
In September of 2006, I took down a forty-five year old, six foot high, wooden fence at
the back of my property. I took it down because I love nature and wanted to see and
hear the creek, not the blank wall of a decrepit fence. I looked through broken slats of
the fence and saw only a wild area and bubbling brook, not someone’s backyard. I
confirmed that the fence was mine, and I removed it, intending to put up a cedar postand-
rail with an arbor, clematis, and wild flowers.
Four different surveyors and the property monuments (pins) confirmed that the fence
was on my property. My back neighbors wanted the fence back up to provide them with
privacy, although a wooded area and a creek separate our properties. They could not
easily put up their own fence, on their own property, because we live on the creek and
the city controls what can be built in wetlands and flood plain areas. However, these
neighbors were told by the city that the old fence could be put back up in the exact
same place because it was grandfathered in; so my neighbors sued me for adverse
possession of the land up to and beneath the fence and the fence itself. In May 2008,
we went before a judge. On June 2nd, the Ruling and Order was issued by the
Boulder County District Court. My land, described in my deed as belonging to me, was
awarded to the adverse possessors, including my fence. I am ordered to give them
the land and pay for the fence to be put back up. Thusly, I am required to provide my
neighbor with privacy. This is a dangerous precedent. Does everybody in Boulder now
need to provide their neighbors with privacy?
I have now had almost two years of education regarding adverse possession and
acquiescence, and how the legal system works. Alarm bells should go off for ordinary
citizens who do not realize how vulnerable they are. First of all, few of us realize that all
it takes is a greedy, litigation-happy neighbor (trespasser) to file a lawsuit and we are
suddenly sucked into the expense and trauma of defending ourselves. The only other
choice is to lose the property you worked for all your life. Here is what I have learned:
The defendant does not choose the fight, and may not have the resources to
adequately defend themselves. We need access to advocacy and legal advice.
Current hourly rates for a lawyer are between $250 and $450 per hour. Because of the
enormous expenses involved, I felt very fortunate to have lawyers provided by my title
insurance company. There is, however, an inherent conflict of interests for them.
Insurance companies want to settle out of court and there is a great deal of pressure
brought upon the insured to do so. And, of course, the title company is concerned with
1
saving their money. But there are corners that cannot be cut, and witnesses that must
be deposed, and expert testimony that must be heard in order to achieve a successful
defense. This all costs money. If the client asserts needs that cost more money, or
refuses to settle, the relationship can become less amicable and even adversarial. I
was very fortunate to have the pro bono help of, my angels, the law firm of Smittkamp
and Walters, LLC, as well as Holland and Hart, who told me to stay involved, know my
case, study the law, and provide support to my lawyers. Which I did. I still lost. Why? I
will explain:
1) The defendant has the most to lose, but little or no control over what witnesses get
called, what questions their witnesses (or the client, for that matter) get asked in
deposition or in court, or input on the content of their closing arguments. I propose
that the defendant, as well as their lawyers, be allowed to speak in their own defense
because of the dire consequences borne by the defendant. The witnesses and the
defendant swear to tell the truth, the whole truth, and nothing but the truth; except that
they are really not allowed to.
In a court of law, no matter how well prepared the defendant is, the defense lawyer
must be burdened with the responsibility of asking all the right questions, staying
organized and focused, and being well prepared. This is a lot to ask of even the most
professional, albeit extremely stressed and busy lawyer. The defendant may answer
only what is asked. The plaintiff’s attorney can object and the judge can sustain, and
the whole truth gets lost. So much for the “whole truth” oath.
2) The judge may be overloaded and uninformed regarding the intricacies of the
particular case and relevant precedent law. As in my case, the judge was appointed at
the last minute and probably did not have adequate time to prepare and review the
case. The previous magistrate and judge were aware that, at first, the adverse
claimants had tried to get my property by representing to the city that the fence
belonged to them. Then they attempted to manipulate the survey results. Then they
switched to a claim of adverse possession. Then, unable to support the 18 year
continuous requirement for predecessors, they flip-flopped to acquiescence- which
fails as a claim. It fails as a claim, due to the requirement that common ownership
dictates that acquiescence in boundary changes must be recorded in the deed or at
least memorialized in written form. A further problem arises because neither my
immediate predecessor in title, nor my neighbor to the west (whose fence is also
involved), would agree that they ever acquiesced to the plaintiff’s use of their fence as
the boundary. Edwin McConnell (referred to as “Old Mac”), the original owner of the
plaintiff’s property also owned my property; introducing a problem of common
ownership. So there’s a little problem with acquiescing to oneself. Acquiescence
requires two people to be in agreement. Finally, when none of the plaintiff’s claims
worked very well, they tried to have the trial continued in order to explore the possibility
that a mistake had been made by the city surveyor when the corner markings down
the street were re-monumented to make way for city improvements.
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And yet, the overworked, underprepared, last-minute judge is burdened with the
responsibility of deciding who is telling the truth, and who wins and who loses. In the
case of private property, this can be a very onerous loss. This decision often depends
on whose witnesses have been better prepared by counsel, who is more aggressive,
and who is better at twisting the truth. I doubt that many ordinary citizens are aware
that it is common for the attorneys to have input into, or sometimes even write, the
final judgment Ruling and Order, and for the court to just sign off on it. (See Rules of
Civil Procedure, rule 121, sections 1-16, sub 1.) The legal system should provide a
great deal more latitude and support to people who want, or need (because of
financial considerations), to represent themselves pro se. Because we are the ones
who stand to lose the most, the defendant generally knows a great deal about the
intricacies of the case, the facts that support his defense, and the witnesses that can
provide credibility and confirmation. But we do not have much choice as to which
witnesses are selected and what questions are asked. We do not know the law or
how to use it in court. One judge should not have the discretion to give your property to
someone else simply because another party wants it. Give me a jury trial any day.
Most citizens would not do to each other what we would not want to have happen to
ourselves.
3) We have warranty deeds and surveys recorded with the Land Use Department and
the County Clerk and Recorder. When there are property pins and monuments in
place, the adverse possessor has an obligation to recognize and respect them. If we
do not intend for these documents (titles, surveys) to be honored, and take
precedence over all else, why do we bother to record and file them? And why bother
buying a property at all when you can simply steal it? These documents should rule
supreme over adverse possession claims.
The provisions of adverse possession and acquiescence in the law were initially (in
the 1700s) intended to provide for homesteading on the prairie and in mountainous
regions when no surveyors were available. Adverse possession has no place in the
modern era of laser survey equipment, deeds and titles recorded, and survey maps
filed with the government. But so many entities are making use of the adverse
possession provision, and so much money is being made through it’s continuance,
that the powers that be are loathe to eliminate the doctrine. Mistakes in boundary in
the modern era can be blamed upon lack of due diligence. Why should property
owners have to defend their titles and land? Just look for the title and survey pins!
The law states that the presumption of the law should be in favor of the true record title
holder. In the court ruling, in my case, as far as I can tell, there is no presumption in
my favor. Yet I had a warranty deed which guaranteed me the right to own my land and
all that is on it, including my fence. Instead, the court Ruling and Order focuses on the
speculation, assumptions, and edited partial testimony and references that will
support the plaintiff’s case. (Please refer to the court transcript.) The court decree
does mention the elements that must be proven in order to win an adverse
possession case, but the Ruling and Order does not support why all of the evidence
3
for the true owner (me) can simply be cast aside. So, I will mention the required
elements here, because all of them should have been used to decide my case. The
claims must be: 1) Adverse to the true title holder. 2) Hostile (meaning against the
interests of the landowner). 3) Continuous (over a period of 18 years). 4) Open and
notorious (such as to apprise the true owner of an intent to claim adversely). And
finally, 5) Exclusive (the adverse claimant carries the burden of proving that he
excluded the true owner from his own land and property, ie. the true owner did none of
the fence repair and maintenance, or caring for the surrounding land.)
In my case, the previous owner of my property, swore in affidavit, deposition, and in
court, that he had always cared for and maintained the disputed property and fence.
He was never excluded from doing so. The fence faced him, and indeed could not
have been repaired from the backside without him knowing it. He never, in the 28
years that he lived there, saw or heard anyone else doing so. My next door neighbor to
the west, whose fence is contiguous with and adjoins my fence, appears to be in
jeopardy as well. (Both her fence, and mine, are referred to as “Old Mac’s fence”, or
“the fence” in the document.) The court ruling, by inference, appears to award her
fence to the plaintiffs as well, although, she has not even been given a fair trial. She
has always maintained her fence. Her fence also faces her property; and she has
always put the fence slats back on and repaired broken pieces. She has a shed with
a rooftop deck which incorporates the fence as a wall. She was never told to move her
shed, get off the deck, or excluded from repairing her fence. Her property pins are
behind her fence as well. Neither of these property owners were ever aware that the
claimants were asserting control over the property up to the fence on the backside, or
maintaining the fence from the back. On two occasions, in the 28-30 year time period,
each accepted neighborly help from one of the adverse possessors. But it was
permissive. However, one of the other plaintiffs admitted they had never repaired their
section of the fence at all, but were awarded that section of my fence anyway. Just
because an owner puts up a fence, or allows it to remain standing, does not mean
they have surrendered the land on the other side. The property does, and should,
belong to them by measurement and monument according to title and survey. In my
case, the court ruling does not address the fact that the plaintiffs were never open and
notorious “such as to apprise the true owner of an intent to claim adversely”.
The other claim is the issue of exclusivity. Both my predecessor in title and my
neighbor to the west (whose fence is contiguous), have always maintained their
fences (for 28 years and 30 years respectively). Indeed, it would not be logically
possible for anyone to repair a 45 year old fragile fence, solely from the back, but this
is what the plaintiffs claim they did. The slats fall off because of freeze and thaw and
rain swell, and the nails eventually work themselves loose. Replacement of fence
slats is the most common fence repair. Yet the plaintiffs claim never to have had to
repair or replace fence slats, because they know that it would be impossible to reach
over the top of a six foot high fence to nail fallen or broken slats to the other side. In
order to do so, they would have had to trespass. They do claim, however, to have
replaced all of the posts and most of the rails from their side of the fence (from the
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backside). The judge, perhaps, never having built a fence, might not reason this out.
But it would be like trying to replace the studs in a wall, without disturbing the drywall
(and without the owner of the wall knowing). It is clear that my predecessor and the
next door neighbors would have had to repair their fences, if only to replace fence
slats. There goes exclusivity!
The focus of the court ruling was on the anecdotal evidence regarding who originally
built the fence, and the neighbor’s suppositions (who couldn’t even see the back
fence). Three elderly witnesses, and a man who was only nine years old when the
events took place, referred to “the fence” as “Old Mac’s fence”. However, when
questioned as to whether “Old Mac” had built the back fence, (my fence, and the only
one in dispute), they uniformly replied that they really didn’t know, but had “just
assumed”. Assuming is not good enough to take away someone's property. I do not
dispute that “Old Mac” had built his front fence, or his side fences, only that he built
the back fence. My contention is that he attached his side fences to his neighbor’s
already existing fences. In order to get around this problem, the Ruling and Order
theorizes that “Old Mac” had put in the fence posts and rails but probably his
neighbors, the Birminghams (my neighbor to the west’s predecessors) and the
Howards (my predecessors), had nailed on the fence slats. This is how the Ruling
surmises why the fence slats faced the Birmingham’s and Howard’s yards, instead of
“Old Mac’s”. The only original predecessor in title who is alive, and knows who built
the back fence, is Mrs. Birmingham. The court questioned her memory because she
said it was forty-five years ago, and “my memory is not so good”, but she testified that
she did know for sure that it was her husband, and not “Old Mac”, who had built their
back fence. She is certain of this because she has photos from 1963 of her children
in the backyard with their new puppy- both before the back section of fence was added
(specifically to provide a dog enclosure), and after the fence was built. Mrs.
Birmingham pointed out that all the fences were new at that time and did not need
repair. She also said no one would have claimed another’s property back in those
days. “We just didn’t do those things back then”, she said. “We respected each
other’s properties.” She also noted that no one referred to Edwin McConnell as “Old
Mac” because he was quite young and handsome at the time. She told me that it
sounded like a contrived familiarity to add credibility to the plaintiff’s testimony. By the
way, she is a very modest person with a keen mind. She is a Lifemaster in duplicate
bridge and still plays three times a week. Another inconsistency in logic, is that
McConnell placed the fence structure clearly inside his back neighbor’s property
boundaries, clearly on their side of the pins. If he had intended it to be his fence, why
did he not put it on his own property? All of the fences on the Mariposa side of the
creek belong to the Mariposa property owners. Except now, of course, for mine.
The Ruling and Order discusses at length, the cooperative, neighborly atmosphere
when everyone was building their houses in the late 1950’s and early 1960’s, and all
of their children were playing together. It was during this time, around 1956-1957, that
the entire subdivision was originally surveyed and monumented. The ruling theorizes
that the reason McConnell had not ended this back fence where his property ended,
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was because he was a good neighbor helping my predecessors, the Howards, finish
the enclosure of their yard. However, my back fence attached to and depended on the
two side fences enclosing my yard, not the McConnell yard (or the plaintiff’s). Rather
than making the assumption that this made it McConnell’s fence, wouldn’t it be
equally reasonable to assume that he was helping his neighbors permissively with
their own fences. That is probably also why the fences face the yards of his neighbors
and not his own. This would seem to also negate any exclusivity on the part of the
predecessors. Accounting for the fencing style, McConnell may have built my fence
when he was the owner of my property, or at least had a hand in advising his
neighbors how to built theirs.
Additionally, the court focused the Ruling and Order on the credibility of the two main
witnesses, the plaintiffs and my predecessor in title. The judge appears to have found
a man (the plaintiff), who could name the exact year he surreptitiously (since neither of
the disputing property owners ever saw him) replaced each and every fence post,
more credible than the previous owner of my property, the prior record title holder. My
predecessor was a colonel in the Army with top secret security clearance and worked
at the University of Colorado as Assistant Dean of Engineering. He also has nothing
to gain by falsifying his testimony. The court cites the fact that his hands were shaking
to question his credibility. However, it is noteworthy that he was indignant and upset
because had just called the plaintiffs liars in reference to the October 25, 2006 letter
sent to the city by the plaintiffs. The letter misrepresented to the city: “The fence has
been maintained by the owners of 2211 Bluebell since 1981, with the understanding
and agreement of the previous owners of 2220 Mariposa that the fence was the
property and responsibility of 2211 Bluebell.” My predecessor was incensed that they
would lie in written communication. Another letter, dated October 13, 2006,
represented to the city that the fence belonged to the plaintiffs (in order to be allowed
to put it back up), although the plaintiffs had already received the results of their survey
which told them that the fence was not on their property. The city then sent them a
response via email stating that, “According to the survey conducted by Ehrhart, Griffin
& Associates dated 10/6/06, the fence that was removed by your neighbor at 2220
Mariposa did not appear to be located within your property”, and that they would be
required to meet the regulations governing new fences. The former owner of my
property, by the way, is a very kind, sensitive, Christian man who avoids conflict
whenever possible. He lived in my house for 28 years and has a reputation in my
neighborhood for helping his neighbors with their repairs, meticulous maintenance of
his own property, and a consistently amicable and moral character. No one, by any
stretch of the imagination, would ever believe that he would stoop to lying in court. So,
in whose favor is the presumption of the law in my case? (Or the Kirlin case.)
Although the plaintiff claims he never received a 1982 letter notifying him that the fence
was claimed by my predecessor, he does confirm in deposition testimony, that the
events described in the letter occurred. In fact, when a section of the fence blew down,
he admits that he said (in 1982) that, if my predecessor removed the fence (as he
was considering doing), then the plaintiff would simply build another privacy fence just
6
inside his own property. This would indicate that in 1982, he knew where the property
pins were, he knew where his own property began, and he knew that he did not own
the fence. He, therefore, had ample notice to build his own fence if he didn’t like my
prior owner’s plan to remove the fence. My predecessor put it back up to avoid a fight
with his aggressive back neighbor.
As to the credibility of the plaintiffs, in her testimony, my west neighbor was about to
describe communications that she’d had with the plaintiffs in which the plaintiff
admitted that he knew it was not his fence, that it was indeed her fence, but that as
long she did not take hers down, he would not claim it. He was seeking an agreement
with her that designated the fence as common ownership. She refused to sign the
agreement. This testimony was objected to by the plaintiff’s attorney on the grounds of
relevance, and was sustained by the judge without bothering to discover what the
relevance was. My neighbor’s partner, who was witness to the conversation, and
could have confirmed the testimony, was never called as a witness. This vital
information was never allowed into the court record.
I am not aware of any law requiring a property owner to provide his neighbor with
privacy. Yet this is the standard imposed upon me. We are guaranteed equal
protection under the law. The ruling diminishes the significance of the fence being
inside the property pins by only “a few inches”. But it is standard practice by fencebuilders
to place a fence inside the property by two to four inches. I was also told that
this is standard practice by three surveyors. Mine is inside my property by six inches
from the original monuments, and nearly twelve inches by modern measurement. If
this is not good enough, what, in the law’s judgment, is? However, as we have seen,
any land left on the other side is in danger of being adversely possessed. Does
everyone really want to comply with this onerous privacy obligation? And how many
feet would be required by the court to make a fence belong to the owner, such that
he/she can do what they want with it? Can none of us change anything on our
properties without getting the permission of all of our neighbors?
In summary, the elements of open and notorious and that of exclusivity were not
adequately proven in court. And they must, even by the old law, be proven by a
preponderance of the evidence. The findings are often based on supposition and
assumptions. The issues of openness (sufficient that the true owner would know his
property was being claimed) and exclusivity (excluding the true owner) are central to
any decision awarding the land purchased and granted by title to someone other than
the true owner. It is especially important here to remember that the presumption of the
law must be in favor of the record title holder who actually bought the property, rather
than the adverse possessors who merely covet their neighbor’s land (and fence).
In closing, I am reminded of a poster I once saw that referred to the book by Robert
Fulghum, All I Really Need To Know I Learned In Kindergarten, that said simply: “If it’s
not yours, GIVE IT BACK.”
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Dana Marshall, Defendant
Case No. 07 CV 431
Boulder County District Court
The Other Side of The Story
“The only thing necessary for evil to flourish is for good men to do nothing.”
In September of 2006, I took down a forty-five year old, six foot high, wooden fence at
the back of my property. I took it down because I love nature and wanted to see and
hear the creek, not the blank wall of a decrepit fence. I looked through broken slats of
the fence and saw only a wild area and bubbling brook, not someone’s backyard. I
confirmed that the fence was mine, and I removed it, intending to put up a cedar postand-
rail with an arbor, clematis, and wild flowers.
Four different surveyors and the property monuments (pins) confirmed that the fence
was on my property. My back neighbors wanted the fence back up to provide them with
privacy, although a wooded area and a creek separate our properties. They could not
easily put up their own fence, on their own property, because we live on the creek and
the city controls what can be built in wetlands and flood plain areas. However, these
neighbors were told by the city that the old fence could be put back up in the exact
same place because it was grandfathered in; so my neighbors sued me for adverse
possession of the land up to and beneath the fence and the fence itself. In May 2008,
we went before a judge. On June 2nd, the Ruling and Order was issued by the
Boulder County District Court. My land, described in my deed as belonging to me, was
awarded to the adverse possessors, including my fence. I am ordered to give them
the land and pay for the fence to be put back up. Thusly, I am required to provide my
neighbor with privacy. This is a dangerous precedent. Does everybody in Boulder now
need to provide their neighbors with privacy?
I have now had almost two years of education regarding adverse possession and
acquiescence, and how the legal system works. Alarm bells should go off for ordinary
citizens who do not realize how vulnerable they are. First of all, few of us realize that all
it takes is a greedy, litigation-happy neighbor (trespasser) to file a lawsuit and we are
suddenly sucked into the expense and trauma of defending ourselves. The only other
choice is to lose the property you worked for all your life. Here is what I have learned:
The defendant does not choose the fight, and may not have the resources to
adequately defend themselves. We need access to advocacy and legal advice.
Current hourly rates for a lawyer are between $250 and $450 per hour. Because of the
enormous expenses involved, I felt very fortunate to have lawyers provided by my title
insurance company. There is, however, an inherent conflict of interests for them.
Insurance companies want to settle out of court and there is a great deal of pressure
brought upon the insured to do so. And, of course, the title company is concerned with
1
saving their money. But there are corners that cannot be cut, and witnesses that must
be deposed, and expert testimony that must be heard in order to achieve a successful
defense. This all costs money. If the client asserts needs that cost more money, or
refuses to settle, the relationship can become less amicable and even adversarial. I
was very fortunate to have the pro bono help of, my angels, the law firm of Smittkamp
and Walters, LLC, as well as Holland and Hart, who told me to stay involved, know my
case, study the law, and provide support to my lawyers. Which I did. I still lost. Why? I
will explain:
1) The defendant has the most to lose, but little or no control over what witnesses get
called, what questions their witnesses (or the client, for that matter) get asked in
deposition or in court, or input on the content of their closing arguments. I propose
that the defendant, as well as their lawyers, be allowed to speak in their own defense
because of the dire consequences borne by the defendant. The witnesses and the
defendant swear to tell the truth, the whole truth, and nothing but the truth; except that
they are really not allowed to.
In a court of law, no matter how well prepared the defendant is, the defense lawyer
must be burdened with the responsibility of asking all the right questions, staying
organized and focused, and being well prepared. This is a lot to ask of even the most
professional, albeit extremely stressed and busy lawyer. The defendant may answer
only what is asked. The plaintiff’s attorney can object and the judge can sustain, and
the whole truth gets lost. So much for the “whole truth” oath.
2) The judge may be overloaded and uninformed regarding the intricacies of the
particular case and relevant precedent law. As in my case, the judge was appointed at
the last minute and probably did not have adequate time to prepare and review the
case. The previous magistrate and judge were aware that, at first, the adverse
claimants had tried to get my property by representing to the city that the fence
belonged to them. Then they attempted to manipulate the survey results. Then they
switched to a claim of adverse possession. Then, unable to support the 18 year
continuous requirement for predecessors, they flip-flopped to acquiescence- which
fails as a claim. It fails as a claim, due to the requirement that common ownership
dictates that acquiescence in boundary changes must be recorded in the deed or at
least memorialized in written form. A further problem arises because neither my
immediate predecessor in title, nor my neighbor to the west (whose fence is also
involved), would agree that they ever acquiesced to the plaintiff’s use of their fence as
the boundary. Edwin McConnell (referred to as “Old Mac”), the original owner of the
plaintiff’s property also owned my property; introducing a problem of common
ownership. So there’s a little problem with acquiescing to oneself. Acquiescence
requires two people to be in agreement. Finally, when none of the plaintiff’s claims
worked very well, they tried to have the trial continued in order to explore the possibility
that a mistake had been made by the city surveyor when the corner markings down
the street were re-monumented to make way for city improvements.
2
And yet, the overworked, underprepared, last-minute judge is burdened with the
responsibility of deciding who is telling the truth, and who wins and who loses. In the
case of private property, this can be a very onerous loss. This decision often depends
on whose witnesses have been better prepared by counsel, who is more aggressive,
and who is better at twisting the truth. I doubt that many ordinary citizens are aware
that it is common for the attorneys to have input into, or sometimes even write, the
final judgment Ruling and Order, and for the court to just sign off on it. (See Rules of
Civil Procedure, rule 121, sections 1-16, sub 1.) The legal system should provide a
great deal more latitude and support to people who want, or need (because of
financial considerations), to represent themselves pro se. Because we are the ones
who stand to lose the most, the defendant generally knows a great deal about the
intricacies of the case, the facts that support his defense, and the witnesses that can
provide credibility and confirmation. But we do not have much choice as to which
witnesses are selected and what questions are asked. We do not know the law or
how to use it in court. One judge should not have the discretion to give your property to
someone else simply because another party wants it. Give me a jury trial any day.
Most citizens would not do to each other what we would not want to have happen to
ourselves.
3) We have warranty deeds and surveys recorded with the Land Use Department and
the County Clerk and Recorder. When there are property pins and monuments in
place, the adverse possessor has an obligation to recognize and respect them. If we
do not intend for these documents (titles, surveys) to be honored, and take
precedence over all else, why do we bother to record and file them? And why bother
buying a property at all when you can simply steal it? These documents should rule
supreme over adverse possession claims.
The provisions of adverse possession and acquiescence in the law were initially (in
the 1700s) intended to provide for homesteading on the prairie and in mountainous
regions when no surveyors were available. Adverse possession has no place in the
modern era of laser survey equipment, deeds and titles recorded, and survey maps
filed with the government. But so many entities are making use of the adverse
possession provision, and so much money is being made through it’s continuance,
that the powers that be are loathe to eliminate the doctrine. Mistakes in boundary in
the modern era can be blamed upon lack of due diligence. Why should property
owners have to defend their titles and land? Just look for the title and survey pins!
The law states that the presumption of the law should be in favor of the true record title
holder. In the court ruling, in my case, as far as I can tell, there is no presumption in
my favor. Yet I had a warranty deed which guaranteed me the right to own my land and
all that is on it, including my fence. Instead, the court Ruling and Order focuses on the
speculation, assumptions, and edited partial testimony and references that will
support the plaintiff’s case. (Please refer to the court transcript.) The court decree
does mention the elements that must be proven in order to win an adverse
possession case, but the Ruling and Order does not support why all of the evidence
3
for the true owner (me) can simply be cast aside. So, I will mention the required
elements here, because all of them should have been used to decide my case. The
claims must be: 1) Adverse to the true title holder. 2) Hostile (meaning against the
interests of the landowner). 3) Continuous (over a period of 18 years). 4) Open and
notorious (such as to apprise the true owner of an intent to claim adversely). And
finally, 5) Exclusive (the adverse claimant carries the burden of proving that he
excluded the true owner from his own land and property, ie. the true owner did none of
the fence repair and maintenance, or caring for the surrounding land.)
In my case, the previous owner of my property, swore in affidavit, deposition, and in
court, that he had always cared for and maintained the disputed property and fence.
He was never excluded from doing so. The fence faced him, and indeed could not
have been repaired from the backside without him knowing it. He never, in the 28
years that he lived there, saw or heard anyone else doing so. My next door neighbor to
the west, whose fence is contiguous with and adjoins my fence, appears to be in
jeopardy as well. (Both her fence, and mine, are referred to as “Old Mac’s fence”, or
“the fence” in the document.) The court ruling, by inference, appears to award her
fence to the plaintiffs as well, although, she has not even been given a fair trial. She
has always maintained her fence. Her fence also faces her property; and she has
always put the fence slats back on and repaired broken pieces. She has a shed with
a rooftop deck which incorporates the fence as a wall. She was never told to move her
shed, get off the deck, or excluded from repairing her fence. Her property pins are
behind her fence as well. Neither of these property owners were ever aware that the
claimants were asserting control over the property up to the fence on the backside, or
maintaining the fence from the back. On two occasions, in the 28-30 year time period,
each accepted neighborly help from one of the adverse possessors. But it was
permissive. However, one of the other plaintiffs admitted they had never repaired their
section of the fence at all, but were awarded that section of my fence anyway. Just
because an owner puts up a fence, or allows it to remain standing, does not mean
they have surrendered the land on the other side. The property does, and should,
belong to them by measurement and monument according to title and survey. In my
case, the court ruling does not address the fact that the plaintiffs were never open and
notorious “such as to apprise the true owner of an intent to claim adversely”.
The other claim is the issue of exclusivity. Both my predecessor in title and my
neighbor to the west (whose fence is contiguous), have always maintained their
fences (for 28 years and 30 years respectively). Indeed, it would not be logically
possible for anyone to repair a 45 year old fragile fence, solely from the back, but this
is what the plaintiffs claim they did. The slats fall off because of freeze and thaw and
rain swell, and the nails eventually work themselves loose. Replacement of fence
slats is the most common fence repair. Yet the plaintiffs claim never to have had to
repair or replace fence slats, because they know that it would be impossible to reach
over the top of a six foot high fence to nail fallen or broken slats to the other side. In
order to do so, they would have had to trespass. They do claim, however, to have
replaced all of the posts and most of the rails from their side of the fence (from the
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backside). The judge, perhaps, never having built a fence, might not reason this out.
But it would be like trying to replace the studs in a wall, without disturbing the drywall
(and without the owner of the wall knowing). It is clear that my predecessor and the
next door neighbors would have had to repair their fences, if only to replace fence
slats. There goes exclusivity!
The focus of the court ruling was on the anecdotal evidence regarding who originally
built the fence, and the neighbor’s suppositions (who couldn’t even see the back
fence). Three elderly witnesses, and a man who was only nine years old when the
events took place, referred to “the fence” as “Old Mac’s fence”. However, when
questioned as to whether “Old Mac” had built the back fence, (my fence, and the only
one in dispute), they uniformly replied that they really didn’t know, but had “just
assumed”. Assuming is not good enough to take away someone's property. I do not
dispute that “Old Mac” had built his front fence, or his side fences, only that he built
the back fence. My contention is that he attached his side fences to his neighbor’s
already existing fences. In order to get around this problem, the Ruling and Order
theorizes that “Old Mac” had put in the fence posts and rails but probably his
neighbors, the Birminghams (my neighbor to the west’s predecessors) and the
Howards (my predecessors), had nailed on the fence slats. This is how the Ruling
surmises why the fence slats faced the Birmingham’s and Howard’s yards, instead of
“Old Mac’s”. The only original predecessor in title who is alive, and knows who built
the back fence, is Mrs. Birmingham. The court questioned her memory because she
said it was forty-five years ago, and “my memory is not so good”, but she testified that
she did know for sure that it was her husband, and not “Old Mac”, who had built their
back fence. She is certain of this because she has photos from 1963 of her children
in the backyard with their new puppy- both before the back section of fence was added
(specifically to provide a dog enclosure), and after the fence was built. Mrs.
Birmingham pointed out that all the fences were new at that time and did not need
repair. She also said no one would have claimed another’s property back in those
days. “We just didn’t do those things back then”, she said. “We respected each
other’s properties.” She also noted that no one referred to Edwin McConnell as “Old
Mac” because he was quite young and handsome at the time. She told me that it
sounded like a contrived familiarity to add credibility to the plaintiff’s testimony. By the
way, she is a very modest person with a keen mind. She is a Lifemaster in duplicate
bridge and still plays three times a week. Another inconsistency in logic, is that
McConnell placed the fence structure clearly inside his back neighbor’s property
boundaries, clearly on their side of the pins. If he had intended it to be his fence, why
did he not put it on his own property? All of the fences on the Mariposa side of the
creek belong to the Mariposa property owners. Except now, of course, for mine.
The Ruling and Order discusses at length, the cooperative, neighborly atmosphere
when everyone was building their houses in the late 1950’s and early 1960’s, and all
of their children were playing together. It was during this time, around 1956-1957, that
the entire subdivision was originally surveyed and monumented. The ruling theorizes
that the reason McConnell had not ended this back fence where his property ended,
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was because he was a good neighbor helping my predecessors, the Howards, finish
the enclosure of their yard. However, my back fence attached to and depended on the
two side fences enclosing my yard, not the McConnell yard (or the plaintiff’s). Rather
than making the assumption that this made it McConnell’s fence, wouldn’t it be
equally reasonable to assume that he was helping his neighbors permissively with
their own fences. That is probably also why the fences face the yards of his neighbors
and not his own. This would seem to also negate any exclusivity on the part of the
predecessors. Accounting for the fencing style, McConnell may have built my fence
when he was the owner of my property, or at least had a hand in advising his
neighbors how to built theirs.
Additionally, the court focused the Ruling and Order on the credibility of the two main
witnesses, the plaintiffs and my predecessor in title. The judge appears to have found
a man (the plaintiff), who could name the exact year he surreptitiously (since neither of
the disputing property owners ever saw him) replaced each and every fence post,
more credible than the previous owner of my property, the prior record title holder. My
predecessor was a colonel in the Army with top secret security clearance and worked
at the University of Colorado as Assistant Dean of Engineering. He also has nothing
to gain by falsifying his testimony. The court cites the fact that his hands were shaking
to question his credibility. However, it is noteworthy that he was indignant and upset
because had just called the plaintiffs liars in reference to the October 25, 2006 letter
sent to the city by the plaintiffs. The letter misrepresented to the city: “The fence has
been maintained by the owners of 2211 Bluebell since 1981, with the understanding
and agreement of the previous owners of 2220 Mariposa that the fence was the
property and responsibility of 2211 Bluebell.” My predecessor was incensed that they
would lie in written communication. Another letter, dated October 13, 2006,
represented to the city that the fence belonged to the plaintiffs (in order to be allowed
to put it back up), although the plaintiffs had already received the results of their survey
which told them that the fence was not on their property. The city then sent them a
response via email stating that, “According to the survey conducted by Ehrhart, Griffin
& Associates dated 10/6/06, the fence that was removed by your neighbor at 2220
Mariposa did not appear to be located within your property”, and that they would be
required to meet the regulations governing new fences. The former owner of my
property, by the way, is a very kind, sensitive, Christian man who avoids conflict
whenever possible. He lived in my house for 28 years and has a reputation in my
neighborhood for helping his neighbors with their repairs, meticulous maintenance of
his own property, and a consistently amicable and moral character. No one, by any
stretch of the imagination, would ever believe that he would stoop to lying in court. So,
in whose favor is the presumption of the law in my case? (Or the Kirlin case.)
Although the plaintiff claims he never received a 1982 letter notifying him that the fence
was claimed by my predecessor, he does confirm in deposition testimony, that the
events described in the letter occurred. In fact, when a section of the fence blew down,
he admits that he said (in 1982) that, if my predecessor removed the fence (as he
was considering doing), then the plaintiff would simply build another privacy fence just
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inside his own property. This would indicate that in 1982, he knew where the property
pins were, he knew where his own property began, and he knew that he did not own
the fence. He, therefore, had ample notice to build his own fence if he didn’t like my
prior owner’s plan to remove the fence. My predecessor put it back up to avoid a fight
with his aggressive back neighbor.
As to the credibility of the plaintiffs, in her testimony, my west neighbor was about to
describe communications that she’d had with the plaintiffs in which the plaintiff
admitted that he knew it was not his fence, that it was indeed her fence, but that as
long she did not take hers down, he would not claim it. He was seeking an agreement
with her that designated the fence as common ownership. She refused to sign the
agreement. This testimony was objected to by the plaintiff’s attorney on the grounds of
relevance, and was sustained by the judge without bothering to discover what the
relevance was. My neighbor’s partner, who was witness to the conversation, and
could have confirmed the testimony, was never called as a witness. This vital
information was never allowed into the court record.
I am not aware of any law requiring a property owner to provide his neighbor with
privacy. Yet this is the standard imposed upon me. We are guaranteed equal
protection under the law. The ruling diminishes the significance of the fence being
inside the property pins by only “a few inches”. But it is standard practice by fencebuilders
to place a fence inside the property by two to four inches. I was also told that
this is standard practice by three surveyors. Mine is inside my property by six inches
from the original monuments, and nearly twelve inches by modern measurement. If
this is not good enough, what, in the law’s judgment, is? However, as we have seen,
any land left on the other side is in danger of being adversely possessed. Does
everyone really want to comply with this onerous privacy obligation? And how many
feet would be required by the court to make a fence belong to the owner, such that
he/she can do what they want with it? Can none of us change anything on our
properties without getting the permission of all of our neighbors?
In summary, the elements of open and notorious and that of exclusivity were not
adequately proven in court. And they must, even by the old law, be proven by a
preponderance of the evidence. The findings are often based on supposition and
assumptions. The issues of openness (sufficient that the true owner would know his
property was being claimed) and exclusivity (excluding the true owner) are central to
any decision awarding the land purchased and granted by title to someone other than
the true owner. It is especially important here to remember that the presumption of the
law must be in favor of the record title holder who actually bought the property, rather
than the adverse possessors who merely covet their neighbor’s land (and fence).
In closing, I am reminded of a poster I once saw that referred to the book by Robert
Fulghum, All I Really Need To Know I Learned In Kindergarten, that said simply: “If it’s
not yours, GIVE IT BACK.”
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Counter Totals
