Anderson v. Cold Spring Tungsten, Inc.

Decision Date15 September 1969
Docket NumberNo. 22415,22415
Citation458 P.2d 756,170 Colo. 7
PartiesJune B. ANDERSON, James A. Anderson, William J. Doherty, Plaintiffs in Error, v. COLD SPRING TUNGSTEN, INC., Defendant in Error.
CourtColorado Supreme Court

William J. Caskins, Jr., Robert L. Hertzman, Denver, for plaintiffs in error.

James Spelman, Boulder, for defendant in error.

PRINGLE, Justice.

Cold Spring Tungsten, Inc. (hereinafter referred to as the plaintiff) filed an action in the Boulder District Court under R.C.P.Colo. 105 in 1966 naming as defendants June B. Anderson, James A. Anderson, and William J. Doherty (all hereinafter referred to as the defendants or by name) and seeking to quiet title to certain real property located in the County of Boulder.

The defendants counterclaimed for judgment establishing title in themselves to a portion of the said property based on their alleged adverse possession for a period in excess of the statutory period. The trial judge found that the defendants were entitled to the cabin situated on the property, but not to the land upon which it was situated. He therefore denied the counterclaim and quieted the title in the plaintiff.

The facts are not in dispute. The plaintiff holds the record title to the property in question. William J. Doherty purchased a cabin located upon this property from the Boulder Rotary Club in 1930. Mr. Doherty made improvements on the cabin, and from 1930 until the time when this action was commenced, he and the members of his family including the other defendants in this action have made use of the cabin by spending weekends there during the summer months and occasionally remaining for a month or longer. The defendants have kept the cabin in repair, have posted it at one time or another to warn off trespassers, and have kept the cabin door locked and the windows shuttered during periods of nonuse. They used a portion of the land in question as follows: on one side of the cabin for toilet facilities and on the other side of the cabin for trash and garbage facilities. Mr. Doherty has paid the real estate taxes for each year since his entry on the property.

It is the contention of the defendants that (1) the trial judge committed error in finding that the original entry onto the property by Mr. Doherty in 1930 was not hostile because it was 'peaceable,' and (2) that the trial judge committed error in finding that the continued use and occupation of the cabin by the defendants did not amount to adverse possession of any of the property in dispute. We agree with the position of the defendants. We therefore reverse the judgment of the trial judge and remand the case to the district court for further proceedings consistent with this opinion.

I.

The trial judge found that the entry onto the property in dispute by Mr. Doherty was 'peaceable' and therefore was not adverse or hostile as required by law in order to sustain a claim of adverse possession. It is true that the record here shows no evidence of force employed by the party making the entry against either the holder of the record title or against the public. But such a showing of force or actual dispute is not necessary to constitute hostile entry so as to lay a foundation for a claim of adverse possession. The requirement that adverse possession be both hostile and adverse does not mean that there need be any violence connected with the entry onto the property or that there be any actual dispute as to ownership between the adverse possessor and the owner of the property. Such a contention was expressly rejected by this Court in Moss v. O'Brien, Colo., 437 P.2d 348, in which we stated:

'Plaintiffs argue that the evidence failed to establish a 'hostile claim,' or that defendants ever claimed to own more land than their record title showed. Implicit in their argument is the assumption that a deliberate attempt to steal a neighbor's property, or an actual dispute at some previous time is necessary in order to show an intention to hold adversely. This is not the law in Colorado.'

Hostility arises from the intention of the adverse possessor to claim exclusive ownership of the property occupied. No specific intent directed toward the property owner is required. This has been made amply clear in the boundary cases decided by this Court and particularly in Vade v. Sickler, 118 Colo. 236, 195 P.2d 390, where the court found hostile and adverse possession even though the adverse possessor had stated that he was claiming only to what he believed to be the true boundary of his land and had no intention of claiming the land of another. All that the court in Vade required to establish hostility was that the person claiming adverse possession occupy the property with belief that the property is his and not another's.

Whether possession is hostile or adverse is ordinarily a question of fact. Moss v. O'Brien, Supra. Hostile intent is to be determined not only from the declarations of the parties but from reasonable deductions from the facts as well. Vade v. Sickler, Supra. In reviewing such issues of fact, this Court has taken the position that it will not set aside the findings of the trial judge where they are sustained by competent and adequate evidence, Amply appearing from the record. Segelke v. Atkins, 144 Colo. 558, 357 P.2d 636. But such restraint in no way limits the power of this Court to reject the findings and conclusions of the trial judge where they are not supported by any evidence in the record or where the law has not been applied correctly.

Limiting our discussion to the property actually occupied by the defendants, we find no basis in the record to support the conclusion of the trial judge that entry upon the property was not hostile and adverse. This is not a case in which the judge has been called upon to consider conflicting evidence. The uncontroverted testimony of Mr. Doherty, who is the party who made the original entry onto the property in 1930, was that he believed he had acquired ownership to and was the actual owner of some of the property upon which the cabin was situated. Testimony by the other defendants reveals that they thought...

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29 cases
  • Archuleta v. Gomez
    • United States
    • Supreme Court of Colorado
    • January 20, 2009
    ...actual occupancy must be determined by the court when ascertaining the extent of the adverse interest." Anderson v. Cold Spring Tungsten, Inc., 170 Colo. 7, 14, 458 P.2d 756, 759 (1969). In this adverse water use case, a showing of the actual beneficial consumptive use that Gomez made of Ar......
  • Barker v. Bd. of Cty. Com'Rs of Cty. of La Plata, CIV.A. 97-B-1912.
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • November 12, 1998
    ...person claiming adverse possession occupy the property adversely to the rights of the record holder. Anderson v. Cold Spring Tungsten, Inc., 170 Colo. 7, 10, 458 P.2d 756, 758 (1969). The Forest Service and the County offer extensive evidence of the public's use of Lewis Creek Road during t......
  • Smith v. Hayden
    • United States
    • Supreme Court of Colorado
    • April 10, 1989
    ...the adverse claimant may not claim any property not actually occupied for the statutory period. Anderson v. Cold Spring Tungsten, Inc., 170 Colo. 7, 14, 458 P.2d 756, 759 (1969). The extent of actual occupancy is a question of fact for the trial court to determine. In arriving at this deter......
  • Barker v. Board of County Com'Rs of County
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • May 18, 1999
    ...person claiming adverse possession occupy the property adversely to the rights of the record holder. Anderson v. Cold Spring Tungsten, Inc., 170 Colo. 7, 10, 458 P.2d 756, 758 (1969). One claiming title by adverse possession has the burden of proving the claim by a preponderance of the evid......
  • Request a trial to view additional results
1 books & journal articles
  • Adverse Possession After House Bill 1148
    • United States
    • Colorado Bar Association Colorado Lawyer No. 37-11, November 2008
    • Invalid date
    ...exist. Cunningham, supra note 36 at 1, 12-15, 16-22 (discussing hostility and claim of right). 47. Anderson v. Cold Spring Tungsten, Inc., 458 P.2d 756, 758 (Colo. 1969). 48. Segelke, supra note 39. 49. Id. at 638. 50. Schoenherr v. Campbell, 472 P.2d 139 (Colo. 1970). 51. Id. at 141. 52. S......

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