Atchison, Topeka and Santa Fe Ry. Co. v. North Colorado Springs Land and Imp. Co.

• Court: Colorado Court of Appeals
• Writing for the Court: VAN CISE
• Citation: Atchison, Topeka and Santa Fe Ry. Co. v. North Colorado Springs Land and Imp. Co., 659 P.2d 702 (Colo. App. 1982)
• Decision Date: 16 September 1982
• Docket Number: 81CA1109
• Parties: The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, a corporation, Plaintiff-Appellee, v. The NORTH COLORADO SPRINGS LAND AND IMPROVEMENT COMPANY, a Colorado corporation, Defendant-Appellant, Hiram P. Bennet, also known as Hiram P. Bennett, et al., Defendants. The NORTH COLORADO SPRINGS LAND AND IMPROVEMENT COMPANY, a Colorado corporation, Plaintiff-Appellant, v. CITY OF COLORADO SPRINGS, a Colorado municipal corporation, Defendant-Appellee. . III

Page 702

659 P.2d 702

The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, a corporation, Plaintiff-Appellee, v. The NORTH COLORADO SPRINGS LAND AND IMPROVEMENT COMPANY, a

Colorado corporation, Defendant-Appellant,

Hiram P. Bennet, also known as Hiram P. Bennett, et al., Defendants.

The NORTH COLORADO SPRINGS LAND AND IMPROVEMENT COMPANY, a Colorado corporation, Plaintiff-Appellant, v. CITY OF COLORADO SPRINGS, a Colorado municipal corporation,

Defendant-Appellee.

No. 81CA1109.

Colorado Court of Appeals Div. III.

Sept. 16, 1982.

Rehearing Denied Oct. 14, 1982.

Grant, McHendrie, Haines & Crouse, P.C., Peter J. Crouse, Denver, for plaintiff-appellee.

Edward H. Flitton, III, Colorado Springs, for defendant-appellant and plaintiff-appellant.

Gordon D. Hinds, City Atty., Jackson L. Smith, Asst. City Atty., Colorado Springs, for defendant-appellee.

VAN CISE, Judge.

This action was brought by the Atchison, Topeka and Santa Fe Railway Company (the Santa Fe) pursuant to C.R.C.P. 105 to quiet title to a strip of land approximately 4,000 feet in length and 200 feet wide located in El Paso County, Colorado. Defendant North Colorado Springs Land and Improvement Company (North Colorado) answered and counterclaimed, seeking to quiet title in it to fractional interests in portions of the strip. The interests of all other defendants were eliminated by either default or summary judgment.

Subsequently, North Colorado brought an action against the City of Colorado Springs (the city) for the taking of its 4/9 fractional interest in a portion of the real property across which the city had constructed a road after receiving a quitclaim deed from the Santa Fe. That action was consolidated with the quiet title action.

In a trial to the court on stipulated facts, the court entered judgment for the Santa Fe and dismissed the action against the city, ruling that all of North Colorado's fractional interests had been defeated by adverse possession by the Santa Fe. North Colorado appeals. We reverse.

The center line of the entire strip involved in this action was until 1974 the center line of the Santa Fe railroad tracks running north from Colorado Springs. The first 50 feet on either side of the center line are undisputably owned exclusively by the Santa Fe. The Santa Fe and North Colorado are co-tenants by record title of portions of the strip which lie between 50 and 100 feet on either side of the center line (North Colorado owning an undivided 4/9 interest in a portion and an undivided 11/18 interest in another portion, with the Santa Fe owning the remaining undivided interests in these portions as well as 100% of the balance of the strip.)

The sole issue at trial and on this appeal is whether North Colorado's admitted record title to fractional interests in the disputed property had been lost as a result of 18 years adverse possession by the co-tenant, the Santa Fe. See § 38-41-101(1), C.R.S.1973.

Since the facts were stipulated and the pertinent documents are in the record before us, we are not bound by the trial court's conclusions and may resolve the issues as a matter of law in this court. Stephenson v. Stephenson, 134 Colo. 96, 299 P.2d 1095 (1956); Southeast Colorado Cooperative v. Ebright, 38 Colo.App. 326, 563 P.2d 30 (1976). "[P]ossession of one co-tenant is possession of all. Rose v. Roso, 119 Colo. 473, 204 P.2d 1075 [1949]; Hed v. Pullara, 128 Colo. 244, 261 P.2d 509 [1953]. Until an actual ouster of the [co-tenant] had been established by conduct apart from mere use and occupation of the land by [plaintiff], the statute giving rise to a claim of adverse possession did not begin to run." Fallon v. Davidson, 137 Colo. 48, 320 P.2d 976 (1958).

As stated in Hed v. Pullara, supra:

" 'An ouster, in the law of tenancy in common, is the wrongful disposition or exclusion by one tenant in common of his cotenant or cotenants from the common property of which they are entitled to possession.... There is an ouster if the tenant's entry into exclusive possession of the premises is accompanied by a claim of right, or by acts tantamount thereto, even though with the mistaken belief in his separate ownership, and the adverse character of the possession is actually known to the other cotenants, or is so open and notorious in its hostility and exclusiveness as to put them on notice, or if it is followed by the tenant's receipt of rents, incomes, and profits, without accounting for any part thereof, or any demand upon him so to do, under circumstances evidencing his intention to claim sole ownership, or by payments of taxes for so long a period as to raise a presumption of ouster, or by sale, assuming to transfer the exclusive right to the property, or if the nature of the property is such as to make exclusive possession...