Durbin v. Bonanza Corp.

• Decision Date: 27 February 1986
• Docket Number: No. 82CA1278,82CA1278
• Citation: 716 P.2d 1124
• Parties: Charles L. DURBIN and Mary Jo Durbin, Plaintiffs-Appellees, v. BONANZA CORPORATION, a Colorado corporation, and Marvin D. Hastings, Personal Representative of the Estate of Max D. Hastings, a/k/a Max Deo Hastings, Defendants-Appellants. . II
• Court: Colorado Court of Appeals

Page 1124

716 P.2d 1124

Charles L. DURBIN and Mary Jo Durbin, Plaintiffs-Appellees, v. BONANZA CORPORATION, a Colorado corporation, and Marvin D.

Hastings, Personal Representative of the Estate of

Max D. Hastings, a/k/a Max Deo Hastings,

Defendants-Appellants.

No. 82CA1278.

Colorado Court of Appeals,

Div. II.

Feb. 27, 1986.

Stauffer, Otto & Davidson, John G. Otto, Colorado Springs, for plaintiffs-appellees.

The Law Offices of Donald E. La Mora, Donald E. La Mora, Colorado Springs, for defendants-appellants.

BABCOCK, Judge.

Defendants, Bonanza Corporation and Marvin D. Hastings, personal representative of the estate of Max D. Hastings (Bonanza), appeal from the judgment of the trial court which determined a disputed boundary between contiguous tracts of land owned by Bonanza and plaintiffs, Charles L. and Mary Jo Durbin (the Durbins), and which awarded the Durbins a prescriptive easement over the Bonanza tract. Bonanza contends that the trial court erred procedurally in its determination of the disputed boundary and erred in its determination that Bonanza had failed to overcome a presumption of adverse use. We affirm.

The Durbins acquired their property in 1979. A predecessor in title was John Chancellor. He owned property contiguous to the Durbins' south boundary and contiguous to a portion of Bonanza's east boundary. Chancellor purchased both tracts in 1958 and had lived in the immediate area since 1934. Bonanza acquired its property in 1975 from a stranger to the Durbins' chain of title.

After the Durbins purchased their property in 1979, they began erecting a fence along what they claimed to be the west boundary of their tract. Bonanza objected, claiming that the fence was being built inside the eastern boundary of its property. Bonanza thereafter blocked the Durbins' access to their residence over a road which Chancellor testified had been in continual use for 70 years.

The Durbins brought suit seeking a determination of the disputed boundary pursuant to § 38-44-101, C.R.S., et seq. (1982 Repl. Vol. 16A). They also sought an adjudication of a prescriptive easement for ingress to and egress from their property over the road in question. Bonanza's answer denied the existence of the prescriptive easement. It also sought determination of the disputed boundary pursuant to the statute.

Thereafter, the Durbins filed a motion to appoint an expert pursuant to CRE 706. On June 2, 1981, the Durbins' attorney appeared before the trial court and represented that counsel for Bonanza had no objection to the appointment of Les Nichols as an expert to survey the disputed boundary. The trial court then entered an order appointing Nichols as its expert for this purpose. The order, a copy of which was mailed to Bonanza's attorney, provided that unless written objection was made on or before June 10, 1981, Nichols would be deemed appointed as the court's expert for the survey. No such objection was filed. The order also specified that the cost of the survey would be shared equally between the parties.

On September 29, 1981, the trial court, by telephone, set a pretrial conference for December 3, 1981. Notice of the setting was also given to the parties by mail. Nichols filed with the trial court his survey and report of his evaluation of the disputed boundary on November 18, 1981.

Counsel for the Durbins and the surveyor appeared at the December 3 pretrial conference, but Bonanza's attorney failed to appear. Counsel for the Durbins represented that the parties had stipulated that the surveyor's report was to be adopted and approved by the trial court to determine the disputed boundary. On this representation, the trial court, in its pretrial order, provided that "pursuant to [C.R.C.P. 53] the report of Les Nichols is accepted by the court as being the findings and conclusions rendered by a 'Master,' which findings the court does approve." The court ordered that the cost of the survey be borne equally by the parties, and it provided that Bonanza would have fifteen days from December 7, 1981, in which to object to its rulings "with regard to the Master's findings and conclusions." A copy of the pre-trial order was mailed to defense counsel, but Bonanza made no objection.

At the later trial on the prescriptive easement issue, counsel, the court, and witnesses referred at times to the Nichols survey and report. It, in effect, swung the common boundary between the parties from the undisputed southwestern common corner 67 feet westerly to the newly determined northwestern common corner. At one point Mr. Durbin testified that the Nichols report resolved the boundary dispute. In this regard, the trial court stated on the record, "I conferred with counsel at the bench and you gentlemen informed me that this was the case." Bonanza's attorney replied, "That's right."

In its judgment, the trial court found that "neither party has contested the findings and conclusions of the Master which resolved the dispute as to the boundary line." The trial court found that the road in question had been used continuously for access to the Durbin residence since the 1930's until it was blocked by Bonanza in May 1980. It further found that there was no evidence as to who constructed the roadway, of any agreement concerning its use, or of permission given by any landowners for its use. The trial court concluded that Bonanza had failed to overcome a presumption of adverse use and entered judgment declaring that the Durbins have an easement for ingress to and egress from their property over the road in question. Bonanza secured new counsel and this appeal followed.

I.

Bonanza contends that the procedure specified in § 38-44-101, et seq., C.R.S. (1982 Repl. Vol. 16A) is the exclusive means for establishing a disputed boundary. Thus, Bonanza argues that the trial court erred in appointing a surveyor as an expert witness pursuant to CRE 706, in treating his report as that of a Master pursuant to C.R.C.P. 53, and in approving the report because it was not prepared in compliance with the provisions of C.R.C.P. 53 and it was approved without hearing. Under the circumstances of this case we find no reversible error.

The establishment of a disputed boundary pursuant to § 38-44-101, et seq., C.R.S. (1982 Repl. Vol. 16A) is a special statutory proceeding. See Gaines v. City of Sterling, 140 Colo. 63, 342 P.2d 651 (1959). Consequently, the provisions of the rules of civil procedure do not apply insofar as they conflict with the procedure and practice provided by the statute. C.R.C.P. 81; see Hithe v. Nelson, 172 Colo. 179, 471 P.2d 596 (1970); People in Interest of S.S.T., 38 Colo.App. 110, 553 P.2d 82 (1976). Nevertheless, a boundary dispute may be resolved under other appropriate statutory or common law proceedings. See Canady v. Shelden, 683 P.2d 1205 (Colo.App.1983).

Here, the parties, by the complaint, answer, and counterclaim, elected to invoke the provisions of the statute to resolve the disputed boundary. Utilization of an expert properly appointed by the trial court pursuant to CRE 706 is not necessarily inconsistent with the hearing procedure provided by § 38-44-108, C.R.S. (1982 Repl.Vol. 16A). However, the procedure prescribed by C.R.C.P. 53 conflicts with that provided under the act. Hence, when an action is brought under the act, the trial court errs in proceeding with a Master pursuant to C.R.C.P. 53. See People in Interest of S.S.T., supra.

Under the circumstances of this case, however, procedural irregularities attendant to the application of the statute, CRE 706, and C.R.C.P. 53 do not constitute reversible error.

First, Bonanza is bound by its stipulation that Nichols' report be adopted and approved by the trial court to establish the disputed boundary. Stipulations are a form of judicial admission which are binding on the party who makes them and may constitute the basis for a judgment. Kempter v. Hurd, 713 P.2d 1274 (Colo.1986); Northwestern National Casualty Co. v. State, 682 P.2d 486 (Colo.App.1983). A party may stipulate away valuable rights provided it is not in violation of public policy. Kempter v. Hurd, supra.

Although oral stipulations made out of court will not generally be enforced, Mogote-Northeastern Consolidated Ditch Co. v. Gallegos, 69 Colo. 221, 193 P. 670 (1920); see Kempter v. Hurd, supra, (oral stipulation made in court is enforceable), a representation, not disputed, concerning an understanding between counsel for the parties ought to be regarded as of equal force to a written stipulation. See Tanquary v. People, 25 Colo.App. 531, 139 P. 1118 (1914). And, when the parties deal at arms length and are represented by counsel who agree to the entry of judgment, and there is no fraud on the attorney's part or dereliction of duty inimical to the best interests of the parties, a judgment entered pursuant to their stipulation is a stipulated judgment. In re Marriage of George, 650 P.2d 1353 (Colo.App.1982).

Here, there is no allegation that the parties were not dealing at arms length during the proceedings before the trial court, and both parties were represented by counsel. There is no allegation of fraud, of any professional dereliction of duty, or of abrogation of any rule of public policy. Moreover, there was neither dispute as to the existence of the stipulation nor objection to the surveyor's report until present counsel for Bonanza appeared and filed an amended motion for new trial. Furthermore, counsels' representations in court during the trial of the prescriptive easement issue, together with Bonanza's payment of one-half of the surveyor's fee, is conduct consistent with the stipulation upon which the Durbins have relied.

Consequently, we hold that, under the circumstances of this case, the parties stipulated for the entry of...