Peters v. Smuggler-Durant Min. Corp.

• Decision Date: 13 January 1997
• Docket Number: SMUGGLER-DURANT,No. 95SC475,No. 2,2,95SC475
• Citation: 930 P.2d 575
• Parties: 21 Colorado Journal 91 Frank PETERS, Petitioner, v.MINING CORPORATION; Last ChanceInc.; and Golden Rule Resources, Inc., Respondents.
• Court: Colorado Supreme Court

Page 575

930 P.2d 575

21 Colorado Journal 91

Frank PETERS, Petitioner, v. SMUGGLER-DURANT MINING CORPORATION; Last Chance No. 2 Inc. and Golden Rule Resources, Inc., Respondents.

No. 95SC475.

Supreme Court of Colorado En Banc.

Jan. 13, 1997.

Sandra M. Stuller, P.C., Sandra M. Stuller, Telluride, for Petitioner.

Hill, Edwards, Edwards & Adkison, L.L.C., Thomas C. Hill, Joseph E. Edwards, Jr., Joseph E. Edwards, III, Carbondale, for Respondents Smuggler-Durant Mining Corporation and Last Chance No. 2, Inc.

Coleman, Jouflas & Williams, Joseph Coleman, Grand Junction, for Respondent Golden Rule Resources, Inc.

Justice HOBBS delivered the Opinion of the Court.

We granted Petitioner's cross-petition for certiorari review ¹ of the court of appeals decision in Peters v. Smuggler-Durant Mining Corporation, 910 P.2d 34, 39 (Colo.App.1995), holding that seven full years must elapse between the time when the person claiming possession under color of title makes the first tax payment on the property and the commencement of a lawsuit to quiet title pursuant to section 38-41-108, 16A C.R.S. (1982). We agree and affirm the judgment of the court of appeals against the adverse possession claim.

Golden Rule Resources, Inc. (Golden Rule), a respondent in this case, became the successor in interest to the original lessee of a mining lease owned by Smuggler-Durant Mining Company (Smuggler-Durant). The lease granted Golden Rule the right of exclusive possession to the real property and the right of first refusal to purchase the property. Three cabins, the ownership of which is the source of this litigation, are located on the property.

On March 12, 1982, Frank A. and William J. Loushin, possessors of one of the cabins, executed a quitclaim deed in favor of Petitioner Frank Peters (Peters). The deed purported to convey their interest in the "cabin and land beneath" located on the north half of the Last Chance Mining Claim in Pitkin County. The deed was recorded upon delivery on March 18, 1982. For the period in question, Peters was in actual possession of the property.

On September 27, 1983, Peters made the first payment of taxes on the three cabins for the 1982 tax year. He made subsequent tax payments for the years 1983, 1984, 1985, 1986, 1987, and 1988 (and after the commencement of the lawsuit, for 1989).

On February 22, 1990, Peters filed a complaint against Smuggler-Durant claiming ownership by adverse possession of the cabins and a portion of the land surrounding them. The land and cabins occupied by Peters are located within the mining claims owned by Smuggler-Durant and leased by Golden Rule.

The complaint against Smuggler-Durant alleged that Peters was entitled to ownership of the property in question due to adverse possession for eighteen years pursuant to section 38-41-101, 16A C.R.S. (1982), and "through payment of taxes and color of title for more than seven years." Golden Rule moved to intervene as a party defendant pursuant to C.R.C.P. 24. The district court granted the motion on May 10, 1990.

Peters filed an amended complaint on September 30, 1991, adding Last Chance No. 2 Inc. (Last Chance), as a defendant, specifying the amount of land claimed by adverse possession as 4.2 acres, and providing a detailed metes and bounds description of the 4.2 acre parcel of land. In addition, the amended complaint more specifically alleged compliance with each of the elements of the seven-year adverse possession statute, section 38-41-108, 16A C.R.S. (1982) (the seven-year statute).

The district court entered a decree in quiet title on October 7, 1992, in favor of Peters, finding, with respect to Peters' claims under section 38-41-108, that: (1) Peters received and recorded a quitclaim deed conveying the "cabin and land beneath" on March 18, 1982; (2) Peters remained in possession of and paid taxes on the land for seven successive years prior to the filing of this claim; and (3) the deed was sufficient to constitute color of title to the 4.2 acres. The district court found that Peters had failed to establish a claim under the eighteen-year adverse possession statute.

The court of appeals concluded that it was bound by early case precedent holding that section 38-41-108 requires "that seven full years must expire between the time when the person claiming the property under color of title first pays taxes and the commencement of his or her lawsuit." Peters, 910 P.2d at 39 (citing Whitehead v. Bennett, 92 Colo. 549, 22 P.2d 168 (1933); Cristler v. Beardsley, 25 Colo.App. 369, 138 P. 68 (1914); and Empire Ranch & Cattle Co. v. Howell, 22 Colo.App. 584, 126 P. 1096 (1912), rev'd on other grounds, 60 Colo. 192, 152 P. 1177 (1915)). The court of appeals reasoned that, although Peters made seven successive tax payments in 1983, 1984, 1985, 1986, 1987, 1988 and 1989, Peters nonetheless filed suit only six years, four months and twenty-seven days after his first tax payment on September 27, 1983, and, therefore, his cause of action under the seven-year statute failed. Id. at 39-40.

The court of appeals rejected Peters' alternative argument that, if a full seven years is required to elapse between the first payment of taxes and commencement of suit, the period should be calculated from the date of the amended complaint rather than the initial complaint. We agree that the seven-year statute requires a full seven years to expire between the first tax payment and the commencement of a lawsuit, and that the seven year period in this case is calculated when the initial complaint was filed.

I.

Peters first argues that the seven-year adverse possession statute requires only that one be in possession under color of title for seven years prior to commencing a lawsuit, and that one pay all taxes legally assessed during that seven year period of possession. We disagree.

Our seven-year adverse possession statute, as originally enacted in 1893, provided in pertinent part that:

Every person in the actual possession of lands or tenements, under claim and color of title, made in good faith, and who shall, for seven successive years, continue in such possession, and shall also, during said time, pay all taxes legally assessed on such lands or tenements, shall be held and adjudged to be the legal owner of said lands or tenements to the extent and according to the purport of his or her paper title.

Ch. 118, sec. 6, 1893 Colo. Sess. Laws 328, 328-29. The current version of this statute remains substantially unchanged. See § 38-41-108.

Our statute was specifically patterned after an Illinois statute. See Empire Ranch & Cattle Co. v. Howell, 22 Colo.App. 584, 600, 126 P. 1096, 1101 (1912), rev'd on other grounds, 60 Colo. 192, 152 P. 1177 (1915); accord Knight v. Lawrence, 19 Colo. 425, 431, 36 P. 242, 244 (1894). The Illinois statute had been construed by the Illinois Supreme Court on numerous occasions prior to its enactment in our state.

We have held that when Colorado adopts a statute of another state and, at the time of its enactment here, the statute had been construed by the appellate court of the state after which it was patterned, the presumption is that our legislature intended the same statutory construction by the courts of this state. Vider v. Zavislan, 146 Colo. 519, 525, 362 P.2d 163, 166 (1961). In Vider, we construed the adverse possession statute at issue here. We stated that both the actual possession/color of title and the vacant and unoccupied land provisions "were adopted in 1893 and were facsimiles of statutes of the state of Illinois. Both had been construed by the Supreme Court of Illinois on a number of occasions prior to 1893, the date of the enactment by our legislature." Id. at 525, 362 P.2d at 166. We then concluded that there was "nothing in the record of this case to overcome the presumption that the construction by the Supreme Court of Illinois was adopted along with the statute by the legislature." Id. at 526, 362 P.2d at 167. ²

Though the Vider case dealt with a different aspect of the adverse possession statutes, the Supreme Court of Illinois considered the issue presented here on several occasions prior to our General Assembly's enactment of the statute. Furthermore, there is nothing in the record here to overcome the presumption that the construction given the statute by the State of Illinois was intended to be adopted by our General Assembly in enacting the same statute here.

A.

Illinois adopted its seven-year adverse possession statute in 1839. The current statute, which is substantively unchanged from its original version, see 1839 Ill. Laws, sec. 1, p. 267, provides that:

§ 13-109. Payment of taxes with color of title. Every person in the actual possession of lands or tenements, under claim and color of title, made in good faith, and who for 7 successive years continues in such possession, and also, during such time, pays all taxes legally assessed on such lands or tenements, shall be held and adjudged to be the legal owner of such lands or tenements, to the extent and according to the purport of his or her paper title. All persons holding under such possession, by purchase, legacy or descent, before such 7 years have expired, and who continue such possession, and continue to pay the taxes as above set forth so as to complete the possession and payment of taxes for the term above set forth, are entitled to the benefit of this Section.

735 Ill. Comp. Stat. Ann. 5/13-109 (West 1996 Supp.). The early Illinois cases interpreting the seven-year statute consistently held that possession, color of title, and payment of taxes must concur for seven successive years in order to create a bar against the true owner under the statute. See, e.g., De Proft v. Heydecker, 297 Ill. 541, 131 N.E. 114, 116 (1921) ("Color of title, possession, and payment of taxes must concur before the statute begins to run, and seven full years must have intervened between the day when the first payment of taxes was made...