OCMULGEE PROPERTIES INC. v. Jeffery

• Decision Date: 11 October 2001
• Docket Number: No. 00CA1593.,00CA1593.
• Citation: 53 P.3d 665
• Parties: OCMULGEE PROPERTIES INC., a Georgia corporation, Plaintiff-Appellant, v. Ross D. JEFFERY, Defendant-Appellee.
• Court: Colorado Court of Appeals

53 P.3d 665

OCMULGEE PROPERTIES INC., a Georgia corporation, Plaintiff-Appellant, v. Ross D. JEFFERY, Defendant-Appellee.

No. 00CA1593.

Colorado Court of Appeals, Div. V.

October 11, 2001.

Certiorari Denied September 3, 2002.

Goluba & Goluba, P.C., Nicholas W. Goluba, Jr., Glenwood Springs, CO, for Plaintiff-Appellant.

Brownstein Hyatt & Farber, P.C., James Lochhead, Andrew Lawrence Spielman, Denver, CO, for Defendant-Appellee.

Opinion by Judge NIETO.

Plaintiff, Ocmulgee Properties Inc., appeals a judgment quieting title to a parcel of real property in defendant, Ross D. Jeffery. We reverse and remand with directions.

Plaintiff commenced this action to quiet its title based on adverse possession. Defendant counterclaimed to quiet title based on his record ownership.

The matter was tried to the court based on the parties' stipulation. The stipulation set forth facts and provided that "Plaintiff is the owner of the disputed property by virtue of adverse possession of more than eighteen years unless, as a matter of law, such adverse possession was interrupted by the following events": (1) defendant's predecessor in title successfully applied to the board of county commissioners to subdivide certain property, including the disputed property, and for an exemption from county subdivision regulations; and (2) plaintiff's predecessor in interest received notice of the application as required by the county regulations, but did not appear at the public hearing on the application and did not object to it. The parties also stipulated that the only issue presented in the case was: "Whether the period of adverse possession of Plaintiff and its predecessors in interest was, as a matter of law, interrupted as a result of the events recounted above...." The trial court found that the successful application was "an exercise of dominion consistent with that of an average landowner asserting exclusive ownership and control." The court also found that pursuit of the application by the record owner was so vital and fundamental to the future use and development of the property that, as a matter of law, it constituted an exercise of control over the property sufficient to interrupt plaintiff's adverse possession. The court then concluded that plaintiff's period of adverse possession had been interrupted by the application and quieted title in defendant.

Plaintiff contends that the trial court erred by concluding that the application and the notice provided to its predecessor in interest constituted, as a matter of law, an interruption of the period of adverse possession. We agree.

Here, because the controlling facts are stipulated and therefore undisputed, the legal effect of those facts is a question of law. The appellate court is not bound by the trial court's conclusions of law, and hence our review is de novo. Lakeview Associates, Ltd. v. Maes, 907 P.2d 580 (Colo.1995).

It is the character of the claimant's possession under a claim of right that gives rise to title by adverse possession. The possession must be "actual, adverse, hostile, under claim of right, exclusive and uninterrupted for the statutory period." Smith v. Hayden, 772 P.2d 47, 52 (Colo.1989). Therefore, where the claimant has been in possession for the required period, the record owner must show an interruption of some aspect of the possession to defeat the claim; mere assertion of a claim of record ownership is not sufficient. Indeed, the claimant's recognition of the owner's record title while claimant remains in possession strengthens the adverse possession claim. Schoenherr v. Campbell, 172 Colo. 306, 472 P.2d 139 (1970).

"To disrupt the adverse possession claim, the record owner must assert a claim to the land or perform an act that would reinstate him in possession." Bushey v. Seven Lakes Reservoir Co., 37 Colo.App. 106, 109, 545 P.2d 158, 161 (1975). See also 16 Richard R. Powell, Powell on Real Property § 91.07[2] (1999)(owner can interrupt claimant's adverse possession by obtaining a judgment against claimant or by openly entering the property with intent to take possession and effectively exclude the claimant); 4 Herbert T. Tiffany, The Law of Real Property § 1161 (3d ed. 2000)(adverse possession is interrupted by the owner's entry on the land for the purpose of taking possession or by legal action to recover possession).

The question of whether a record owner's successful application to subdivide property and for an exemption from county subdivision regulations constitutes an exercise of control over property sufficient to disrupt the period of adverse possession by a claimant in actual possession of the property is an issue of first impression in Colorado.

"The very essence of adverse possession is that the possession must be hostile, not only against the true owner, but against the world as well." Lovejoy v. School District No. 46, 129 Colo. 306, 311, 269 P.2d 1067, 1069 (1954). It is actual possession of the property in a manner hostile to the record owner's right to possession that leads to title by adverse possession. The doctrine of adverse possession recognizes the record owner's right to exercise dominion over the property, but holds that the right is lost if a claimant adversely possesses the property for the required time. See § 38-41-101, C.R.S.2001.

Here, the proceedings on the application before the county commissioners, standing alone, did not dispossess plaintiff, nor did they...