Riggs v. McMurtry

• Decision Date: 12 April 1965
• Docket Number: No. 20868,20868
• Citation: 157 Colo. 33,400 P.2d 916
• Parties: William H. RIGGS and Mary L. Riggs, Plaintiffs in Error, v. Ione McMURTRY, Defendant in Error.
• Court: Colorado Supreme Court

Page 916

400 P.2d 916

157 Colo. 33

William H. RIGGS and Mary L. Riggs, Plaintiffs in Error, v. Ione McMURTRY, Defendant in Error.

No. 20868.

Supreme Court of Colorado, In Department.

April 12, 1965.

Gordon & Gordon, John J. Lefferdink, Lamar, for plaintiffs in error.

Harlan Johnson, Lamar, for defendant in error.

McWILLIAMS, Justice.

By writ of error the Riggses seek reversal of a judgment of the trial court which decreed that Ione McMurtry was the absolute owner of certain land by her adverse possession of the same for more than eighteen years as prescribed by C.R.S. '53, 118-7-1.

The following chronology will perhaps serve to place the present controversy in proper focus:

1. by warranty deed recorded April 13, 1935 one J. O. McMurtry acquired title to certain described property situate in Prowers County, the property being a part of lot 76 in Park subdivision in the town of Holly;

2. in 1935 the McMurtry tract was surveyed and staked out;

3. immediately thereafter J. O. McMurtry constructed a fence along the north and west sides of his property, placing the fence on the north and west boundary lines as such had been determined by the aforementioned survey;

4. these fences thereafter remained in place until March 1962;

5. in 1942 William and Mary Riggs purchased all of lot 76 in Park subdivision in Holly, excepting the tract previously conveyed to J. O. McMurtry;

6. in 1947 J. O. McMurtry died and thereafter his widow, Ione McMurtry, became the fee owner of J. O. McMurtry's interest in lot 76;

7. on March 21, 1962 at a time when Ione McMurtry was away from her home William Riggs, without notice or warning, tore down the aforementioned fence and at the same time proceeded to place a building on land which theretofore had been 'within' or 'behind' the McMurtry west fence; and 8. on April 25, 1962 Mr. Riggs either tore down or caused to be removed a small building or shed used to store materials, which shed belonged to Ione McMurtry and for many years had been located 'within' the fenced area.

What triggered this entire controversy was the fact that a short time prior to March 1962 the Riggses had determined to subdivide their property and in furtherance of this plan caused a survey to be made. This 1962 survey revealed that the McMurtry fences on both the north and west side of her tract were not located on the true boundary line. The accuracy of this 1962 survey, incidentally, is in no wise contested by Ione McMurtry. This particular survey established that the north fence was not on the boundary line, but was actually located on the Riggses' property some four feet north of the true boundary line. As to the west fence, the survey disclosed that it too had been placed on the Riggses' property and was located some 21 feet west of the true boundary line. Without communicating any of these facts to Ione McMurtry, Mr. Riggs decided to assert his control and dominion over that portion of 'his' property which lay within or behind the McMurtry north and west fence line and he thereupon proceeded to do so in the somewhat abrupt manner described above.

Based on this sequence of events, Ione McMurtry brought an action under Rule 105, R.C.P.Colo., to quiet title to all that land which lay within her aforementioned fence lines, as the same had existed before they were torn down by William Riggs in March 1962. She also sought compensatory damages in the amount of $2,500 from the Riggses for the damage occasioned her by the tearing down of her fence, by the destruction of certain shrubs, trees and a strawberry bed, and by the destruction or removal of her storage shed. Finally, Ione McMurtry alleged that William Riggs' several actions were fraught with malice and insult and with a wanton and reckless disregard of her rights and feelings, for which she sought additional monetary assuagement by way of exemplary damages in the sum of some $2,500.

Trial to the court culminated in a judgment and decree that title to the land here in controversy should be--and was--quieted in Ione McMurtry. The basis for the decree was a determination by the trial court that through adverse possession Ione McMurtry was now the absolute owner of a strip of land some 4 feet wide lying to the immediate north of the tract of land to which she had the record title; and further, that she was similarly the owner of a strip of land some 21 feet wide to the immediate west of her property. In other words, the trial court decreed that Ione McMurtry was now the owner of that land which lay within and behind the north and west fence line of her property. At the same time the trial court awarded Ione McMurtry the sum of $500 as actual damages, with an additional $100 being awarded her as exemplary damages.

By this writ of error the Riggses seek reversal of this judgment. It is their basic contention that inasmuch as the placing of the north and west fences was the result of a 'mistake', in the sense that the same were not constructed and placed on the true boundary lines, such therefore could not form the basis for any claim of ownership based on adverse possession of land to which they (the Riggses) are the record owners thereof. From the record it clearly appears that the McMurtrys and the...