HUNTER v. MANSELL

• Decision Date: 04 March 2010
• Docket Number: No. 09CA0799.,09CA0799.
• Citation: 240 P.3d 469
• Parties: Betty S. HUNTER, Plaintiff-Appellant and Cross-Appellee, v. Alana C. MANSELL, Defendant-Appellee and Cross-Appellant.
• Court: Colorado Court of Appeals

240 P.3d 469

Betty S. HUNTER, Plaintiff-Appellant and Cross-Appellee,

v.Alana C. MANSELL, Defendant-Appellee and Cross-Appellant.

No. 09CA0799.

Colorado Court of Appeals,Div. III.

March 4, 2010.

COPYRIGHT MATERIAL OMITTED.

Boog & Cruser, P.C., Victor F. Boog, Lakewood, Colorado, for Plaintiff-Appellant and Cross-Appellee.

Walsh Law, P.C., Thomas A. Walsh, Golden, Colorado, for Defendant-Appellee and Cross-Appellant.

Opinion by Judge ROY.

Betty S. Hunter (the owner) appeals the trial court's judgment denying mandatory injunctive relief requiring the removal of encroachments. Alana C. Mansell (the possessor) cross-appeals the trial court's conclusion that she is not the owner of the disputed property by adverse possession and that the encroachments constitute a continuing trespass. We affirm the grant of summary judgment on the possessor's adverse possession claim, reverse as to the equitable remedies ordered by the trial court, and remand for further proceedings consistent with the views expressed in this opinion.

The possessor purchased property adjacent to the owner's property in December 2001. However, in approximately 1974, the seller's husband constructed a metal shed that partially encroached onto the owner's property. At the time of her purchase, the possessor was informed of the encroachment. More specifically, the “Seller's Property Disclosure” form stated that a “small garage at [the] rear of [the] property encroaches over [the] property line.” The possessor was also provided a boundary survey plat (Plat) dated September 16, 2001, which defined the boundaries of the seller's property, gave the approximate size and location of the encroachment by the metal shed, and indicated a line of junipers and a “fence on a rock wall” on the owner's property. The possessor's deed from the seller did not include the area of encroachment. The possessor was again notified of the encroachment by the owner's attorney in December 2003. At that time, there was some informal discussion of the matter between the parties or their representatives, but no agreement was reached.

The metal shed is a three-car garage which is 30 feet wide and 20 feet deep (600 square feet) with double swinging doors for the center stall and overhead doors for the two side stalls. The shed encroaches about 14 feet onto the owner's property and the extent of the encroachment is about 190 square feet. The property line traverses the metal shed beginning at or near the right front corner, as the observer faces the front of the shed, ending about two-thirds the way down the back wall. Approximately two-thirds of the right stall and one-third of the center stall encroach. The metal shed is described on the plat as a “corrugated metal shed (no foundation).” At the time the possessor purchased her property, the metal shed was a silver corrugated metal building sitting in a grassy area. The possessor installed a concrete floor in 2006, a large concrete apron, and electricity, and the shed has been painted. There is testimony that structural and other improvements were also made.

The possessor's property is higher than the owner's property and the ground drops abruptly to a ditch or channel on the owner's property. A stone wall topped with a wire fence is generally along the upper edge of the abrupt drop and the property line until approximately 90 feet north and east of the shed, at which point it veers to the northwest into the owner's property. The fence and wall continue for another 90 feet and terminate 25 feet into the owner's property and north of the metal shed. A row of junipers generally parallels the wall and fence, between them and the property line.

The rock wall is apparently a retaining wall supporting the higher ground. The wall is rather substantial and organized at its northeast end, but it appears considerably less substantial and less organized in the vicinity of the metal shed. With the area of the fence and wall included, the total area of encroachment is approximately 1200 square feet as estimated by the possessor, with 190 square feet attributable to the shed and the balance to the high ground “behind” the wall and fence.

The owner filed a complaint on November 22, 2006, seeking a declaratory judgment that she is the fee simple owner of the disputed property and that the possessor has no right to it, and requesting a mandatory injunction requiring the removal of that portion of the shed which encroaches. The possessor filed a counterclaim alleging that she was the owner of the disputed property by adverse possession.

The owner filed a motion for partial summary judgment on the issue of the ownership of the disputed property. Attached to that motion was the owner's affidavit with exhibits. The owner, after reciting some historical facts, stated:

A corrugated metal shed straddles the west line of Block 10 [the common boundary], the original town of Morrison....

The Metal Shed was constructed by [the seller's husband]....

A few years after the Metal Shed was constructed, it was discovered from a land survey that the Metal Shed encroached on the [owner's] property.

Based upon an informal agreement between [the owner and her husband] and [the seller and her husband], the [owner] kindly permitted the Metal Shed to remain, as long as everyone understood that the Metal Shed encroached upon [the owner's] Property and that [the owner] reserved the right to require the shed to be removed upon the sale of [the seller's] property to a third party. Confirmation of such an informal agreement is evidence[d] by the sworn statement of [the seller], a copy of which is attached....

Also attached to the motion is the seller's affidavit in which she states, in pertinent part:

In about 1974 [the seller's husband] constructed a small pole barn at the edge of the large drainage ditch separating the Morrison Trout Ranch and our property. In those days property lines were somewhat informal and [the seller's husband] located the building based on his understanding that our property extended to the ditch.

A few years later we discovered from a land survey completed by [the owner] that the corner of the shed was encroaching on [the owner's] property. [The owner] kindly allowed the garage to remain as long as everyone understood that part of the building was standing on [the owner's] property.

Last year when I sold the ... property, the [possessor] was informed of the encroachment and the informal agreement between [the owner] and [the seller]. The buyer understood that since the property was changing hands there was a possibility [the owner] may ask that a portion of the building be demolished. Knowing this, the new owner[ ] [the possessor] proceeded with the closing.

The seller, the seller's husband, and the owner's husband are now all deceased. Both husbands died prior to the seller's transfer of her property to the possessor.

In response to the motion for partial summary judgment, the possessor filed a brief and exhibits. Included in the exhibits were: (1) the Seller's Property Disclosure issued in conjunction with the sale to the possessor; (2) the Contract to Buy and Sell Real Estate signed by the seller; (3) the Warranty Deed conveying the seller's property to the possessor; (4) a letter from the owner's attorney to the possessor pointing out the encroachment, alleging a license agreement, asking to reach an accommodation, and suggesting a sale of the encroachment to the possessor; and (5) the seller's affidavit.

The possessor (1) challenged the adequacy and completeness of the owner's affidavit to establish an agreement; (2) challenged the competency of the seller to execute her affidavit because of her advanced age and poor health; (3) argued the seller's affidavit contradicts representations made by the seller in the contracts and closing documents related to the sale; and (4) challenged the motivation for the seller's affidavit, based on the delay after the completion of the sale and its proximity in time to the owner's consulting with an attorney. The possessor concluded:

Based on the above-argument, whether an agreement between the [the owner] and [the seller] existed, and thus whether the property was adversely possessed, is most certainly not an undisputed fact. At worst, there is a very serious doubt as to whether an agreement ever actually existed. Summary Judgment is not proper if there is any doubt about the existence of a triable issue.

The trial court granted the owner's motion for partial summary judgment. It determined that prior to the sale, the seller had used and maintained the metal shed for a period of time in excess of that required to acquire ownership by adverse possession. It also concluded that the seller's recognition of the encroachment in her disclosures in the sale documents constituted a “disclaimer of any ownership or ‘claim of right’ in the disputed property, by confessing her shed's ‘encroachment,’ means the 18-year statutory period,-if it ever began-was interrupted (and indeed terminated) [contemporaneously] with the conveyance to [the possessor].”

The case then proceeded to trial on the owner's claim of trespass and her request for mandatory injunctive relief requiring the possessor to remove the metal shed. The trial court concluded that the possessor's use of the disputed property constituted a continuing trespass, denied the mandatory injunctive relief, and ordered the owner to lease the disputed property to the possessor indefinitely for one dollar a month commencing in 2001. The owner then filed a motion requesting that she be permitted to exercise self-help and remove the encroachments. The trial court ordered the parties to brief that issue and thereafter ordered that the encroached parcel be appraised and that the possessor be given 90 days to purchase the disputed tract from the owner at the appraised value. While not clearly stated, the order appears to accord the possessor the right...