Opinion
May 25, 1971.
Editorial Note:
This case has been marked 'not for publication' by the court.
Walberg & Pryor, Robert W. Carney, Denver, for plaintiff in error.
Yegge, Hall & Evans, Wesley H. Doan, Denver, for defendants in error.
ENOCH, Judge.
This case was transferred from the Supreme Court pursuant to statute.
This case involves a boundary dispute and a claim of adverse possession. The Rouses initiated this action against Larson by filing a complaint on September 21, 1967, alleging trespass and nuisance. Larson denied the claims and alleged that he owned the disputed property by virtue of adversed possession.
Trial was held to the court on September 25, 1968. The court proceeded under R.C.P.Colo. and found for the plaintiffs on their trespass claim, but for lack of proof did not assess damages. The court dismissed the nuisance claim because it found Larson's actions did not constitute a nuisance. The determinative question presented by this appeal is whether the trial court erred in finding that Larson had failed to prove adverse possession of a strip of land lying on his side of a fence that ran between the property of the parties. The strip in dispute is approximately 3 feet wide and runs the entire 119 foot length of the lots.
Larson purchased the property at 1323 Bellaire in the City of Denver in 1949 from Wheaton. At that time, Kaplan occupied the premises next door immediately to the south of 1311 Bellaire. A fence ran west from the northwest corner of Kaplan's house to the northeast corner of his garage. The house, the fence and the garage formed the northern side of Kaplan's enclosed yard. The Rouses purchased the property from Kaplan in 1957. The fence between the house and garage remained in the same location from some time prior to Kaplan's purchase of the property in 1939 until March 9, 1968, when Rouse tore it down to gain access to the disputed strip of land which lay on the other side.
Kaplan testified that he occupied the premises at 1311 Bellaire continuously from 1939 until he sold the property to Rouse in 1957. He and Larson, as well as he and .wheaton, Larson's predecessor in title, always treated the land lying to the north of the line formed by the house, fence and garage as part of the property owned by Larson, I.e., part of 1323 Bellaire. Larson improved and maintained the strip as part of his yard from the time he moved in until the dispute developed. This evidence, which was undisputed, showed that Larson and his predecessor asserted dominion and control over the strip at least since 1939.
The trial court found that Larson did not sustain his burden of proof that the fence was intended to be a boundary fence and concluded that the fence was a barrier fence. The court discussed exclusive possession and determined that Rouse used the property when repairing and maintaining his house which defeated Larson's claim of adverse possession.
We agree with Larson's assertion that the trial court erred in holding that the defendant had not carried the burden of proof in support of his right to possession of the disputed strip. Evidence which established exclusive continuous possession of disputed land for a period in excess of 18 years raises a presumption that possession was adverse, the burden then being upon a challenging party to overcome such presumption. Riggs v. McMurtry, 157 Colo. 33, 400 P.2d 916; Marr v. Shrader, 142 Colo. 106, 349 P.2d 706; Hodge v. Terrill, 123 Colo. 196, 228 P.2d 984; Lively v. Wick, 122 Colo. 156, 221 P.2d 374; Vade v. Sickler, 118 Colo. 236, 195 P.2d 390; Trueblood v. Pierce, 116 Colo. 221, 179 P.2d 671; Niles v. Churchill, Colo.App., 482 P.2d 994.
'One of the tests of acquiescence in a boundary line in addition to the existence of a fence over the prescribed period of time is the actual possession and dominion over the property up to a fence.' Hartley v. Ruybal, 160 Colo. 80, 414 P.2d 114.
It has been held that the maintenance of a lawn, bushes and fences were sufficient acts and evidence of possession as to fulfill the requirements of adverse possession under C.R.S.1963, 118--7--8. Koch v. Ilgen, 154 Colo. 59, 388 P.2d 254.
Kaplan's testimony showed that Larson and Wheaton, his predecessor, exercised exclusive and continuous possession over the strip at least since Kaplan's purchase in 1939. Under the rule set forth above, the burden was upon Rouse, the challenging party to overcome the presumption that Larson's possession was adverse.
The evidence offered by Rouse as to his occasional use of the disputed strip to repair and maintain his house was not identified to the relevant 18 year period from 1939 to 1957. Rouse did not demand that Larson give up the strip until June of 1967, after a survey determined that the true boundary lay approximately 3 feet on Larson's side of the fence. Thus, the presumption of adverse possession in favor of Larson was not rebutted.
It is true that whether possession is adverse is ordinarily a question of fact, and a finding on this issue made by the trial court would normally not be set aside on review. However, as was stated in Anderson v. Cold Spring Tungsten, Inc., 170 Colo. 7, 458 P.2d 756, this restraint does not limit the power of the reviewing court to reject a trial court's findings and conclusions where they are not supported by evidence or where the law has not been correctly applied. Niles v. Churchill, Supra.
The judgment is reversed and remanded with directions to the trial court to quiet title to the disputed strip in favor of Larson.
SILVERSTEIN, C.J., and DUFFORD, J., concur.