Boulder land battle hashed out in local radio interview

By Berny Morson, Rocky Mountain News (Contact)

Published December 18, 2007 at 12:30 a.m.

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A Boulder judge sparked nationwide consternation - and local outrage - in October by awarding part of one family's land to a neighboring couple.

But legal experts say the ruling was based on an established legal principle, called adverse possession, that is found in every state and has its roots in English statutes dating to 1275.

In Colorado, the law predates statehood. It is found in statutes that governed the area when it was still a territory.

"It's a rule every English-speaking jurisdiction has," said University of Colorado law professor Richard Collins.

The rule allows people who use a piece of land for an extended period - 18 years in the Colorado version - to claim ownership or the right to walk across it.

In the Boulder case, former Mayor and District Court Judge Richard McLean and his wife, Edith Stevens, had been accessing their backyard by walking across land belonging to Don and Suzy Kirlin.

The ownership issue arose when the Kirlins tried to fence their property in 2006.

In an interview broadcast Monday on Boulder public radio station KGNU, both sides said attempts to mediate the dispute failed, sending it to court.

Judge James C. Klein found that about one-third of the Kirlins' land belonged to McLean and Stevens under the principle of adverse possession. In addition to crossing the Kirlins' land on two footpaths, McLean and Stevens landscaped part of the land, cut weeds and held parties there. They even kept their woodpile on the Kirlins' property.

Klein's ruling sparked a protest outside the McLean- Stevens home. Some of the protesters characterized the ruling as a legal land grab.

But while the protesters had never heard of adverse possession, every lawyer has, said Collins, who teaches constitutional law. It's taught in the first semester at virtually every law school, he said.

The issue arises fairly frequently, with Klein citing a half-dozen Colorado cases from the past 10 years.

The law arises from the same principle as the statute of limitations - the rule that says people can't be tried for crimes after a certain period has elapsed.

In property law, the idea was to lay to rest endless legal bickering over land titles, particularly in cases where the people had died who could explain why boundaries or agreements on usage had been established.

Collins did not comment on specifics of the Boulder case.

The fact that the Kirlins paid taxes on the land is not relevant, nor is the fact that the boundaries of properties in the neighborhood are contained in deeds filed with the county clerk.

• December 18, 2007

  5:45 a.m.

  Suggest removal

  TarryGardner writes:

  And on Channel 7 news, it is reported that Klein did not know, never met, and never served with McClean.

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