Lovejoy v. School Dist. No. 46 of Sedgwick County, 17215

• Decision Date: 19 April 1954
• Docket Number: No. 17215,17215
• Citation: 269 P.2d 1067,129 Colo. 306
• Parties: LOVEJOY et ux. v. SCHOOL DIST. NO. 46 OF SEDGWICK COUNTY et al.
• Court: Colorado Supreme Court

Page 1067

269 P.2d 1067

129 Colo. 306

LOVEJOY et ux. v. SCHOOL DIST. NO. 46 OF SEDGWICK COUNTY et al.

No. 17215.

Supreme Court of Colorado, En Banc.

April 19, 1954.

Rehearing Denied May 17, 1954.

G. E. Hendricks, Julesburg, for plaintiffs in error.

Richard D. Dittemore, Julesburg, for defendant in error.

HOLLAND, Justice.

School District No. 46 of the County of Sedgwick, claiming that as owner in fee of approximately two acres of land in the extreme southeast corner of section 16, township 11, north, range 47 west, it was wrongfully deprived of lawful possession thereof on or about August 1, 1952 by plaintiffs in error Ben Lovejoy and Phyllis Lovejoy, his wife; filed its complaint containing such allegations in substance, and prayed for recovery of possession and $650 damages for the unlawful withholding by defendants, now plaintiffs in error. Defendants answered, and as a first defense, alleged that the amended complaint did not state facts upon which any relief could be granted; second, admitted that defendant Phyllis Lovejoy is in possession of the land as owner in fee simple; and denied all other allegations in the complaint.

Trial was to the court, which entered its finding and judgment decreeing title in the School District, and entered judgment for $125 damages against defendants, who now seek review thereof.

Counsel for defendants, the Lovejoys, now plaintiffs in error, contends that there is no evidence to support the finding that School District No. 46 had acquired title by adverse possession, although it had occupied the land for more than the statutory period for school purposes, which in and of itself, was not notice to the true owners that the District claimed title; that the court erred in holding that the mere fact alone that School District No. 68, when it became a part of School District No. 46, acquired title to the land involved by operation of law without any conveyance or transfer of title; and finally, that there was no evidence of liability of defendant Phyllis Lovejoy for damages in the sum of $125, or any sum. Other subordinate questions are presented which we find unnecessary to discuss or determine.

The sole question here involved is whether or not the district, by being in possession and holding school on the premises for a long period of time more than the statutory period of eighteen years, was entitled to possession and to have title quieted in it by adverse possession.

The fact that the district had established a school on the land involved about the year 1886, and that there had been continuously conducted a school thereon until the year 1947, is not disputed. The proof offered by the School District lacks any showing of a clear, positive and unequivocal act on the part of the district during any of the time involved that would disclose its claim or right to the land by adverse possession. Mere occupancy alone seems to be relied upon until after the spring of 1947, when a question arose between Phyllis Lovejoy, the fee owner of the quarter section, and District No. 68 as to the ownership of the building. Since the building was a permanent fixture, she authorized her attorney, on April 30, 1951, to write the president of School District No. 68, requesting the Board to remove the school building. This incident was notice to the District that she claimed ownership of the land, and there appears no denial of her claim at that time. If the District then claimed ownership of the land, there then was an open opportunity for it to assert such claim of ownership; however, it consulted an attorney and then decided to claim ownership by adverse possession. By such action, a strong presumption follows that the School District, in effect, admitted that its claim was not open, hostile and notorious, as is necessary in reliance upon adverse possession.

Numerous witnesses, of the community, were called by plaintiff, some of whom had resided there for many years, and one in particular who attended the second term of school in 1887. None of the witnesses could recall any incident whereby it was known that the District claimed ownership to the land, but all were of the same positive impression that the District owned the building. It appears that School District No. 68 comprised a large area of sparsely settled land, and in order to provide accommodation to children of the District without being required to travel long distances to school, there were three schools established, known as the North 68, Middle 68 and South 68, the school here in question being South 68. It logically is contended, although the record is not clear, that in the early days of the district, owners of land gladly permitted the establishment of a school house in their immediate community for the accommodation of their children and others in the neighborhood. There is no evidence whatever as to the manner or conditions under which the District was allowed to enter upon the land here in question, if such arrangement was ever made. Such land was...