Prestrud v. Young, 16568

• Decision Date: 16 July 1951
• Docket Number: No. 16568,16568
• Parties: PRESTRUD et al. v. YOUNG et al.
• Court: Colorado Supreme Court

Page 613

242 P.2d 613

124 Colo. 95

PRESTRUD et al. v. YOUNG et al.

No. 16568.

Supreme Court of Colorado, en Banc.

July 16, 1951.

Jackson M. Seawell, Edward A. Jersin, Denver, for plaintiffs in error.

No appearance for defendants in error.

JACKSON, Chief Justice.

Plaintiffs in error, who were plaintiffs in the trial court, brought an action for the determination of interests in real estate, claiming title by adverse possession to a tract of approximately two acres in Jefferson county. They seek reversal of the trial court judgment which was unfavorable to them.

The trial court found that the plaintiffs do not have necessary title, or color of title, to support this action, because their evidence tended to prove one Payne obtained title to the disputed area by adverse possession and never has conveyed his title to plaintiffs, or their predecessors in interest, or to anyone else so far as is disclosed by the record in this case.

The undisputed evidence shows that plaintiffs and defendants are neighboring property owners, their fence lines in respect to property involved in this case being separated by a public road. Defendants acquired title by deed conveying eleven acres, more or less, the description of which included the two acre tract here in question. Plaintiffs acquired title to their larger tract by deed from Payne, which did not include in its description the two acre tract in controversy. The undisputed evidence also disclosed that Payne's fence included in his land the two acre tract, and that when he sold to plaintiffs they were informed by Payne that the fence marked the exterior boundaries of his land. Payne, under the impression that he owned the two acre tract in question, exercised complete jurisdiction over the property during his ownership of his other land for a period of some fifty-three years. He sold to plaintiffs in January, 1948. The latter assumed possession of the two acre tract when they acquired the rest of Payne's property. The evidence further shows that defendants acquired their property November 10, 1947, and that neither they nor their predecessors in interest have at any time been in possession of the two acre tract during the fifty-three years Payne was in possession, nor since then. It was in the Spring of 1949 that they first became aware, through a survey, that the description in their deed included the two acre tract in question.

Plaintiffs in error present two specifications of points: (1) Plaintiffs obtained fee title to the area in dispute by adverse possession; and (2) The boundaries of plaintiffs' land have been established to include the disputed area. We are of the opinion that both these specifications have merit.

It appears that the trial court recognized the fact that Payne had acquired title to the two acre tract through adverse possession, occurring through a mutual mistake in boundaries. Vada v. Sickler, 118 Colo. 236, 195 P.2d 390; Lively v. Wick, 122 Colo. 156, 221 P.2d 374. It took the position, however, that Payne had not conveyed to plaintiffs the two acre tract which he had acquired by adverse possession. Payne testified that he was not now claiming ownership; on the contrary, he stated he thought he was selling and conveying to plaintiffs all the land within his exterior fence lines, which included the two acre tract in question. He gave plaintiffs possession of the latter when he sold to them.

This case would appear to be controlled by Trueblood v. Pierce, 116 Colo. 221, 179 P.2d 671, 171 A.L.R. 1270, in which we...