Boulder couple appeals taking of property by neighbors

Heath Urie, Daily Camera

Published January 11, 2008 at 6:16 a.m.
Updated January 11, 2008 at 6:15 a.m.

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A Boulder couple who last year lost a portion of their vacant lot on Hardscrabble Drive to their neighbors -- in what has become a highly publicized property dispute -- appealed that ruling Thursday, although legal experts say their chances of winning the land back are slim.

Don and Susie Kirlin filed a request for the Colorado Court of Appeals to review a Boulder County District Court judge's October decision that awarded Edith Stevens and Richard McLean about 34 percent of the Kirlins' next-door lot under the legal principle of "adverse possession."

The appeal argues that Stevens and McLean did not sufficiently prove all the elements of adverse possession, which allows a person to claim another's property as his or her own after using it openly and continuously for at least 18 years.

The filing also argues that a disputed path on the Kirlins' lot didn't exist for 18 years; that it leads to Boulder open space, not to McLean's and Stevens' backyard; and that McLean and Stevens didn't intend to treat the land as their own until a few years before they filed the lawsuit asking for it in late 2006.

The appeal states that any use of the Kirlins' property was limited to "a tiny encroachment" of about 100 square feet -- not the 1,500 square feet of land that Judge James C. Klein awarded McLean and Stevens.

A phone call to McLean and Stevens was not returned Thursday. Their attorney, Kim Hult, said she would not comment because the case is still being litigated.

Andy Low, a Denver attorney for the Kirlins, said the Boulder district court has 90 days to compile documents and a transcript from the original case to be sent to the appeals court. Once that happens, Low will have 40 days to file an opening brief that McLean and Stevens must respond to within 30 days.

Once the Kirlins respond to that, they must wait for the Colorado Court of Appeals to set a date for a hearing. That, according to Low, could take up to six months.

Low said an appellate judge could affirm the trial court decision, reverse and dismiss the case or send it back to the original judge for a new trial.

If the appellate court upholds Klein's original ruling, the Kirlins could still apply for a hearing with the Colorado Supreme Court -- though there is no guarantee the court would accept the case.

Susie Kirlin said Thursday she knows appeals are generally difficult to win, but she's still hopeful the decision will be overturned.

"I'm optimistic about it," she said. "We're just going to hope it brings a resolution to our ultimate goal, and that's getting our property back."

However, some legal experts said the Kirlins have an uphill battle ahead.

Anthony Viorst, a Denver attorney who specializes in appeals, said the Kirlins probably have a 25 percent chance of success, at best.

"Generally at trial your chances are 50-50 -- on appeal, you start out in the hole," he said. "There's always going to be a presumption that the judgment was correct."

Viorst, who reviewed the appeal and Klein's ruling for the Camera, said he found the trial decision to be "pretty solid."

"I think this is a very fact-based ruling, and the judge really covered himself in terms of the findings of fact," Viorst said. "My professional guess is that (the appellate court) wouldn't be outraged by it, that the judge's decision is rock solid and that they're going to uphold it. Adverse possession is a time-honored legal principle."

However, Viorst said, there is a chance for the Kirlins to appeal to the court's heart, so to speak.

"The court looks at things from a human perspective, and if they feel that the appellants got shafted here, they may find a way to manipulate the law in a way for them to win. That happens."

Don Kirlin said Thursday he knows the chances of success are slim.

"I still believe in our judicial system, therefore I believe that the appellate court will rule in our favor," he said. "Sometimes you've got to fight for what you believe in."

The Kirlins said they expect their legal fees to total more than $200,000.

THE KIRLINS' ARGUMENTS

The facts as the trial court found them were not sufficient to prove adverse possession of all the land between the lot line and a large path outlining the disputed area.

The court awarded the land to Richard McLean and Edith Stevens without finding "Edie's Path" had existed for 18 years.

Without a clear path, it is impossible to prove McLean and Stevens used the Kirlins' lot for 18 years in an "open and obvious" way.

Even if "Edie's Path" had existed for 18 years, it leads to Boulder open space, not to McLean's and Stevens' backyard.

McLean and Stevens did not intend to treat the land as their own until a few years before they filed a lawsuit.

While the district judge awarded McLean and Stevens 1,500 square feet of the Kirlins' land to their neighbors, "all the tangible evidence" points to a disputed area of about 100 square feet.

There is not enough evidence to prove that all the elements of adverse possession were met by McLean and Stevens.

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Comments

January 11, 2008

6:32 a.m.

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vudumom writes:

Move to Boulder if you want to steal other people's land,kill children and get away with it,rape woman and get away with it,and best of all stick your nose so far up in the air if it rains you will drown.Yes Boulder is the place to be.Oh and black people are not welcome but illegals are.
January 11, 2008

7 a.m.

Suggest removal

TeresaBinstock writes:

The United States and Canada were founded upon taking of land from people who lived here long before Columbus the slave trader and his shipmates were rescued. Are we surprised the tradition of dominion is embodied in establishmentarian law?
January 11, 2008

7:10 a.m.

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denverinfidel writes:

Chalk another one up for boulder. What a disgrace.
January 11, 2008

7:27 a.m.

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Oh_Wise_One writes:

This is why the revolution will come. The rich stealing from the rich would be funny except that they corrupt justice.
January 11, 2008

7:56 a.m.

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fiesty writes:

So now trespassing is no longer illegal, but rather rewarded?? This case STILL outrages me. I think, from a legal viewpoint, the Kirlins might have a better chance by challenging the judge (see if all procedures were followed) who provided the "emergency" injunction against them building on their own land. Further, based on the satellite photos, they should be able to appeal the decision since it does show that the supposed path didn't exist several years ago.
January 11, 2008

7:57 a.m.

Suggest removal

fiesty writes:

Does anyone know of any motion or movement to eliminate the adverse possession doctrine? Also, for our legal experts, if they managed to pass some sort of legislation, could they grandfather it so the Kirlins can get their land back?
January 11, 2008

7:59 a.m.

Suggest removal

fiesty writes:

Also, another question since I am not a legal expert- would putting together a website in order to get signatures on a petition for modifying adverse possession be of any value?
January 11, 2008

8:09 a.m.

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CDee writes:

What goes around comes around. And I would hate to be McLean and Stevens when it comes around. That karma can be a real bi***
January 11, 2008

8:16 a.m.

Suggest removal

Eli writes:

Fiesty,
Sure it would, assuming you can get enough people on the petition. Getting things like that done can be a long, hard battle, but politicians seem to always be responsive to large groups of angry voters. Get enough people to support a ban of toilet paper, and politicians will respond.
January 11, 2008

8:41 a.m.

Suggest removal

Diff writes:

"There is no problem so large that explosives can't help."
H. Thompson
January 11, 2008

8:52 a.m.

Suggest removal

American100 writes:

They say chances are slim they'll win the appeal. Win or lose the appeal, McLean & Stevens are pigs.
January 11, 2008

8:59 a.m.

Suggest removal

fiesty writes:

Hmm... I am serious about getting together a site to get signatures on a petition; one of my skill sets is web development. I need some ideas though. What do we want? To eliminate adverse possession as a legality, or just modify it? Also, what would be a good domain name?
January 11, 2008

9:06 a.m.

Suggest removal

bookwerm writes:

I sure hope those folks that stole the land are FULLY rejected and shunned by all who interact with them. I hope their credit cards get canceled, their loans called, & don't sell them groceries, gas, or anything! don't talk with them, don't help them, and send bad thoughts at them. You can totally cut them off as long as it is not due to race color or creed.. if you just don't like them, that is ok!
I am hoping these victims win their appeal.
January 11, 2008

9:06 a.m.

Suggest removal

CWW writes:

Scumbag lawyers and corrupt judge. I hope the people in Boulder continue to picket outside the thieve's house. (I would, but thank God, I live nowhere near Boulder.) Fiesty, I'll sign any petition or whatever to try to change that law. Same goes for eminent domain.
January 11, 2008

9:28 a.m.

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kathyM writes:

TeresaB, all of human history involves peoples taking land from other peoples, so stop making it all Columbus' fault.
January 11, 2008

9:30 a.m.

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Eli writes:

Fiesty,
I haven't read the law so I couldn't reasonably comment on elimination vs. modificatinon, but from what I understand about it I'd lean towards elimination. I don't see how use of somebody else's property, be it for 18 years of 100 years, makes it your own. But as far as domain names:
eliminatelandgrabs.com
adverseposessionaction.com
fixadverseposession.com
propertyprotection.com
supportpropertyrights.com
lawyerssuck.com
January 11, 2008

9:38 a.m.

Suggest removal

Eli writes:

Wow....I never stopped to think that those would turn up on the page as links. Just so everyone knows, that's all stuff I just made up so I wasn't providing links to pre-existing web pages on the matter.
January 11, 2008

9:44 a.m.

Suggest removal

ddj6264 writes:

I vote for eliminatelandrabsdotcom.
January 11, 2008

9:45 a.m.

Suggest removal

Darwin writes:

TeresaBinstock - Typical left-wing response. Blame only the U.S. and Canada. The Mexicans should give Mexico back to the Aztecs and Incas, oh that's right, they killed them all. The Europeans should readjust all their borders that were changed due to wars and conquests...but you say, many of their changes occurred so many years ago that it is now ok. Give us a break and stop blaming all the worlds ills on the U.S. and Canada. As to slavery, it is and always has been wrong. That being the case, take your "crusade" to the African countries where it is still prevalent.
As to the land grab, give me your address and I will walk across it a few times and lie, saying I have been doing so for more than 18 years. I predict that these liars will rue the day they did this sham. They will be tormented for the remainder of their miserable life.
January 11, 2008

9:46 a.m.

Suggest removal

ddj6264 writes:

I meant landgrabs, not landrabs.
January 11, 2008

9:54 a.m.

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wow writes:

Way to go Fiesty!! Thats a great idea and when you get that done I'll email the link to every one I know.
I'm wondering if you can get a link to the site put on myhub? and maybe a letter to the editor of the rmn and the camera to let every one know about it. Word should spread fairly fast, especially when the neighbors get wind of it.
January 11, 2008

10:14 a.m.

Suggest removal

CDee writes:

Fiesty,
I would also opt for elimination. It would stink to have to move you fence or something over 3 inches but the fact that your fence is there doesn't make it your property. It is what it is
January 11, 2008

10:35 a.m.

Suggest removal

elaineb writes:

Fiesty...I am in, too! Get that website and petition going!!
Wouldn't take long to get the signatures we need!!! Every
reasonable person out there knows that is a STUPID law!!
January 11, 2008

10:37 a.m.

Suggest removal

jvb writes:

Diff's response is a good one and such a happening should occur before the Kirlins are compelled to blow $200,000 on lawyer fees.
January 11, 2008

10:37 a.m.

Suggest removal

leech67 writes:

Darwin,
sorry but you have your history wrong. the mexicans didnt steal mexico from aztecs & incas.... ummm, the spanish did and they are the ones that killed the natives...
January 11, 2008

10:43 a.m.

Suggest removal

Eli writes:

Leech67,
Mexicans today are descendants of the Spanish who did that.
January 11, 2008

11:03 a.m.

Suggest removal

Raynelq writes:

"legal experts say their chances of winning the land back are slim."

(Here's what Bing Crosby would say:

You've got to accentuate the positive
Eliminate the negative
Latch on to the affirmative
Don't mess with Mister In-Between

You've got to spread joy up to the maximum
Bring gloom down to the minimum
Have faith or pandemonium
Liable to walk upon the scene

(To illustrate his last remark
Jonah in the whale, Noah in the ark
What did they do
Just when everything looked so dark)
January 11, 2008

11:10 a.m.

Suggest removal

denverinfidel writes:

leech67 -

There cannot be mexicans without a mexico, and mexico would not exist without spanish conquistador's. There is plenty of ugly history to go around.

Where exactly does the spanish/portugese language come from that is spoken in mexico?
January 11, 2008

11:47 a.m.

Suggest removal

TCB writes:

Feisty,

I can understand why you and your supporters are outraged; I really can. However, I must tell you that the chances of repealing this law are so low that they are almost non-existent. Property law has its origins in feudal England. This adverse possession law has been on the books for centuries in every part of the British Commonwealth. What's worse (from your point of view) is that it actually espouses a very sound public policy.

The intent of the law is to NOT to allow people to steal land (even though that is how it is presented in these articles). The intent is to keep land free and transferable. The entire body of property law starts with the premise that restraints on land are bad. There is a limited amount of land on our planet (especially in England, the law's birthplace). As such, anybody that openly and notoriously uses a piece of land without objection from the owner begins to gain some property rights. Once this open and notorious use goes on without objection for 18 years, the land becomes yours.

You wouldn't want some giant corporation buying up all the land and then never letting anybody do anything with it, would you? What if you needed to cross that land to get to your own property? What if you had, in good faith, mistakenly thought that the strip of land was part of your backyard and you had a garden there for 20 years; can the property owner show up one day and rip it out? You can't just alienate everybody from a piece of land for the rest of eternity; there just isn't enough land to go around. Where were these people for 18 years of open and obvious use? One notice to the "land grabbers" would have ended all of this.

In sum, this law is older than our country and actually works quite well in 9 out of 10 cases. Repealing it is not only impossible, but would be foolish.
January 11, 2008

11:56 a.m.

Suggest removal

Devil_Dog writes:

Adverse Possession laws in Colorado were meant to prevent rich land barons' from buying all the land surrounding a persons property and there by fencing them in an cutting off their access, and forcing them out. It is an outdated law that should be, at the very least, revised to fit today's purposes. Just because a neighbor lets you walk across their yard without calling the police to have you arrested for trespassing doesn't mean they wish to make you a gift of their property.
January 11, 2008

noon

Suggest removal

TCB writes:

You don't have to call police. All you have to do is say: "Excuse me; you are on my property." Do this once very 17 years and 11 months and you are fine.

Additionally, if many of these posters would read the case law dealing with adverse possession (even very recent cases), they would agree with most of the decisions; I guarantee it.

While adverse possession is an OLD law, it is not an OUTDATED law. It does not need to be revisited; it works fine.
January 11, 2008

12:11 p.m.

Suggest removal

Devil_Dog writes:

TCB

What you say is somewhat true however, there are a few flaws. In your version (and how it is being applied here) it is ok to give property deeded to one individual to another because he illegally used that property. As to solving the issue you bring up of not enough land to go around, in this case it has not prevented one individual form owning a piece of land it merely transferred that ownership to a different (single) individual. The original laws as you have correctly stated were designed to prevent a single land owner from not allowing, due to the limited amount of land available in England, the peasants (non land owners) from hunting and accessing other goods needed to survive. This is no longer the case in Colorado so the law needs to be revised to reflect today's world. Because no, we do not want Starbucks to buy every bit of vacant land and force us all to live in apartments above their coffee shops.
January 11, 2008

12:13 p.m.

Suggest removal

Devil_Dog writes:

TCB

If it worked fine as it is now written one neighbor would not be able to legally stel from another.
January 11, 2008

12:19 p.m.

Suggest removal

TCB writes:

Devil Dog

You can't write laws on a case-by-case basis. No law is going to work perfectly 100% of the time.

I think what happened here sucks. In this one fact situation, it is unfair. However, does it really make sense to repeal a good law because it didn't work once?

Secondly, the law does not encourage illegal use; it simply deals with non-existent land owners. It is similar to the theory behind the statute of limitations. I might hit someone with my car on accident and cause serious damage. That person has a limited amount of time to file a suit. The injured party can't wait 20, 15, or even 4 years and then sue. We have to keep things fluid.

Finally, it is not "my" version of the law; it IS the law. That is why it is being applied that way here.

Don't get me wrong; this sucks. But I just wanted to bring some clarity to this board because it is obvious that people don't understand what is really going on here. All they see is "land grabbers" and then they start to fire off w/o even bothering to check the history, intent, or valid public policy behind the legal doctrine.
January 11, 2008

12:27 p.m.

Suggest removal

nimbusco writes:

Folks,

Another tradition that I (a non-lawyer) have gleaned from reading about English and US property law is that it is UP TO YOU to defend your property. People get outraged that if someone trespasses on their property and gets hurt, the trespasser can sue. Well, that's because it is YOUR job, as property owner, to keep people off. And if you fail to keep people off, the legal assumption is that you no longer need nor want the property. Thus, adverse possession.

Remember, England was founded by conquest. The feudal lords who used to own all land had armies they used to gain and defend their holdings. They would have LAUGHED at the idea that a piece of paper would keep them off land they wanted. We are a bit more civilized now, but we essentially still live under law from that world.

If you think that TAKING land from your neighbor is wrong, then you had better call up the Araphoe or Ute tribe to negotiate giving back the land you bought from someone who bought it from someone who bought it from the US government who bought it from France who bought it from Spain who bought it from France who took it from the Indians by force. Corrupt title is corrupt title, no matter how long ago the corruption occurred.
January 11, 2008

12:31 p.m.

Suggest removal

TCB writes:

Devil Dog:

It's not stealing. It's adverse possession.

It sucks when an old lady gets a traffic ticket; it sucks when someone gets a parking ticket when the No Parking sign was covered with snow; it sucks that car dealerships can't sell cars on Sunday; it sucks when a woman can get a $70 million judgment from McD's for spilling coffee on herself.

Lots of laws have unintended consequences. That doesn't mean we repeal them because they "seemed" unjust one time.

While the need for peasants to hunt is no longer applicable, consider another scenario. What if one person bought up all the space in front of a National Park or a coastline so that tax-paying nature lovers could not access that park or beach? What if the land owner was nowhere to be seen and the fed-up taxpayers just started hiking across the property to get to the open space? What if the landowner (probably some distant heir of the original purchaser) miraculously appeared some 60 years later and ordered all trail heads and parking lots removed from "his" land? Does he really still have a right to that land?

Answer: No he doesn't, because of adverse possession.
January 11, 2008

12:36 p.m.

Suggest removal

Devil_Dog writes:

TCB

In this case the land owners were not non-existent, the land in question is their residence. It is not asking too much to provide language within the law that recognizes a deeded landowners right to the property he paid for. Also law is interpreted by a judge, providing the necessary language within a law to enable the judge to arrive at a sensible and just decision is not asking too much either.

I'm not sure if it is still on the books but not that long ago a horse had the right-of-way vs. a car on the streets of Denver, just because a law worked well as written a century (or more) ago does not mean it works well now. And let's say (for arguments sake) that this is the very first time the law didn't provide justice. That does not mean that it will be the only time that the law fails, but it does provide us with a reason and an opportunity to correct the language within the law to try to prevent any further miscarriages of justice. Next time the property in question might be yours.
January 11, 2008

12:44 p.m.

Suggest removal

Devil_Dog writes:

TCB

I'm not arguing that the law does not have a purpose, I am merely stating that it needs to have language within it to stop the misuse of it. That is a sensible and just thing to do. The law as written does not work in today's society.
January 11, 2008

12:49 p.m.

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Devil_Dog writes:

TCB

Nor am I arguing about some ticket or whatever else you brought in to this conversation. I am not saying LAW sucks. I am saying that this law needs to be amended or rewritten in some fashion to eliminate an unintended loophole enabling one neighbor to (YES IN THIS CASE) steal from another.
January 11, 2008

1:38 p.m.

Suggest removal

TCB writes:

Dan2

The problem with your proposal is that Adverse Possession is not a statute. It is a theory of common law applied by courts. There is no statute to repeal.

While your suggested method may gain enough popularity to convince courts that the law no longer espouses public policy (which I doubt), a mere 5% of signatures will not overcome a common-law legal theory that has existed in every free nation for centuries.

I appreciate your enthusiasm, but let's be realistic. Even if people "vote on emotion," adverse possession isn't going anywhere. Nothing short of a US Supreme Court ruling would eliminate adverse possession. Do you think the current justices are interested in inviting tons of scrutiny for overturning a law as old as law itself? Doubtful.

At any rate, sign the petitions, get it on the ballot, get it voted in, and sit back and watch ABSOLUTELY NOTHING change.
January 11, 2008

2:12 p.m.

Suggest removal

TCB writes:

Dan2

I admire your civic involvement and wish you luck!
January 11, 2008

2:16 p.m.

Suggest removal

TCB writes:

Won't happen though. See Settled law v. Wishful Thinking, 210 Commonsense 3d 484, 503 (King's Court 2008).
January 11, 2008

3:03 p.m.

Suggest removal

TCB writes:

Dan2

Ha ha, I am a pretty arrogant jerk, aren't I? Nice to meet my match!

I am not a real estate attorney; just a poor sucker that finished the 3-day BarBri Property lecture.

I have been following this story for weeks now. I just kept seeing all of these posters railing against something they knew nothing about and, being the cocky know-it-all that I am, had to chime in.

Thanks for the compliment though. I'll look you up once I have my license!
January 11, 2008

3:05 p.m.

Suggest removal

buffsblg writes:

Actually adverse possession started as a common law theory but then was put into statute in most states, including this one. I have not put a lot of time into it, but title 38, section 41 of the Colorado Revised Statutes seems to be our version of it. Common law or statute, either can be changed or eliminated by either a law passed by the legislature or the voters. I am interested to know what proposal anyone would have to amend the statute to keep the principle but avoid what many seem to feel was an injustice here.

Finally, those on here who seem to think this is a Boulder thing and use this issue to bring out all their childish attacks, should know that this law applies across the state and similar ones across the country. I have not seen anything that makes me beleive this would have been handled differently in any county.
January 11, 2008

4:20 p.m.

Suggest removal

elaineb writes:

Well, I think it is worth a try to get this thing changed or at least adopt a law that is more in-line with today's standard.
Don't give up on this, Fiesty and Dan2. People like TCB may know
what they are talking about...even so, I wouldn't let him discourage you, me or anyone else from getting this changed.
January 11, 2008

6:04 p.m.

Suggest removal

ThreeWishesToyStore writes:

As a former Boulder resident (and whose mother still lives there) I am dismayed at what has happened to the small town I used to love. Anyone remember Three Wishes Toy Store at Crossroads Mall?

While I don't know a lot of the particulars of the issue, it sounds like the land in question was part of the property that the Kirlin's lived on. A suggestion to the change for the statute might be to exclude land within x amount of feet of the residence, or parcels less than x size (2 acres, maybe?). Most of the examples people quoted in support of the statute were for issues stemming from "absent ownership", so perhaps an exemption for land with inhabitants?
January 12, 2008

12:02 p.m.

Suggest removal

Jim writes:

More than you may want to know about adverse possession in Colorado.

http://www2.michie.com/colorado/lpext...
January 15, 2008

9:21 a.m.

Suggest removal

dubious writes:

Legalized stealing is never a good idea. I do hope this moves those who can to change this law so those with greed can not hurt those who are generous in sharing. It is my deepest hope that the court is able to make a decision based on character and integrity of those involved, rather than the greedy manipulation of an obscure law. It's so difficult for me to fathom how someone tells themself it is ok to take it just because you want it. Isn't that what we are always trying to teach children is wrong? Something is very wrong with this thinking. Seems like one is justifying that the knowledge of legal issues can override integrity if it is to your advantage. So sad!

Home › News › Local News

Boulder couple appeals taking of property by neighbors

Heath Urie, Daily Camera

Published January 11, 2008 at 6:16 a.m.Updated January 11, 2008 at 6:15 a.m.

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Published January 11, 2008 at 6:16 a.m.
Updated January 11, 2008 at 6:15 a.m.