Terry v. Salazar

• Decision Date: 11 August 1994
• Docket Number: No. 93CA0982,93CA0982
• Citation: 892 P.2d 391
• Parties: Gail TERRY, individually and as the Personal Representative of the Estate of Bill Powers, Jr., a/k/a William B. Powers, Jr., Plaintiff-Appellant and Cross-Appellee, v. Fernando SALAZAR and Richard Pretto, Defendants-Appellees and Cross-Appellants. . III
• Court: Colorado Court of Appeals

Page 391

892 P.2d 391

Gail TERRY, individually and as the Personal Representative

of the Estate of Bill Powers, Jr., a/k/a William

B. Powers, Jr., Plaintiff-Appellant and Cross-Appellee, v. Fernando SALAZAR and Richard Pretto, Defendants-Appellees

and Cross-Appellants.

No. 93CA0982.

Colorado Court of Appeals,

Div. III.

Aug. 11, 1994.

Rehearing Denied Oct. 27, 1994.

Certiorari Granted April 3, 1995.

Gary E. Hanisch, Walsenburg, for plaintiff-appellant and cross-appellee.

Alison Maynard, Craig, for defendants-appellees and cross-appellants.

Opinion by Judge PLANK.

Gail Terry, individually and as personal representative of the Estate of Bill Powers, Jr., (Terry) appeals the judgment of the trial court dismissing her action to quiet title to certain real property in Huerfano County. We reverse the judgment and remand for further proceedings.

The basic facts are undisputed. Terry, in her own right and as personal representative of Powers' estate, claims ownership of two 40-acre parcels of agricultural land. Defendants, Fernando Salazar and Richard Pretto, claim ownership of a tract to the west adjoining the property claimed by Terry. A fence parallels the public land survey lines between the two properties and is located some feet to the east of the survey lines inside the property claimed by Terry.

In 1971, an entity known as Mills Ranches, Inc., acquired the property now claimed by defendants. On November 3, 1977, Mills Ranches also acquired title to the property now claimed by Terry. On November 18, 1977, Mills Ranches, by its president Jerry Mills, deeded the property now claimed by Terry to Jerry Mills individually. Therefore, for a period of 15 days in 1977, Mills Ranches was the common owner of both Terry's and defendants' lands. None of the pertinent deeds describes the lands with reference to the fence as a boundary line; rather, each employs descriptions in accordance with the quarter section government survey.

Terry acquired her property on July 20, 1987. Mills Ranches lost the parcel now claimed by defendants following a foreclosure sale in 1979, and defendants eventually succeeded to title in 1989.

Terry broke the fence in April or May of 1989 and constructed a dam, ditch, and earthen pond. Terry thereafter commenced this action seeking to quiet title to her property claimed to extend to the west of the fence to the survey line. Defendants answered by denial, asserting the fence represented the actual boundaries of the properties, and sought by counterclaims damages for trespass, outrageous conduct, and emotional distress.

Following a bench trial, the court found that the fence had been in existence since 1888 and had always been recognized as the boundary by the parties' predecessors in title. The court noted that, in a previous action, a portion of the fence had been adjudicated in 1914 as the actual boundary between two adjoining parcels immediately to the south of the lands now in dispute. The court further found that Jerry Mills had recognized the subject fence to be the true boundary, and accordingly, it concluded that the fence represented the boundary between Terry's and defendants' properties by acquiescence from 1914 until 1989.

The court dismissed defendants' counterclaims as barred by the statute of limitations, although it awarded defendants nominal damages of one dollar for a de minimis trespass committed within the limitation period.

Terry now repeats her argument made before the trial court that the period of common ownership of the properties by Mills Ranches abrogated any acquiescence chargeable to the parties concerning the fence as the actual division line. We agree.

If the respective owners of adjoining lands recognize and acquiesce in a boundary line dividing their properties for more than 20 years, then that boundary will be binding upon the parties and their successors. Section 38-44-109, C.R.S. (1982 Repl.Vol. 16A); Forristall v. Ansley, 170 Colo. 391, 462 P.2d 116 (1969).

There must be mutuality in the fixing of a boundary in order for acquiescence to be found. Hartley v. Ruybal, 160 Colo. 80, 414 P.2d 114 (1966). One of the tests for acquiescence in a boundary line, in addition to the existence of a fence over the prescribed period of time, is the actual possession and dominion over the property up to a fence.

It is a question of fact to be decided by the finder of fact as to whether a fence is acquiesced in as a boundary or merely exists to serve as a barrier. However, mere existence of a fence with evidence of...