Vider v. Zavislan

• Decision Date: 22 May 1961
• Docket Number: No. 19090,19090
• Citation: 146 Colo. 519,362 P.2d 163
• Parties: Frank VIDER, Plaintiff in Error, v. Frank ZAVISLAN, Defendant in Error.
• Court: Colorado Supreme Court

Page 163

362 P.2d 163

146 Colo. 519

Frank VIDER, Plaintiff in Error, v. Frank ZAVISLAN, Defendant in Error.

No. 19090.

Supreme Court of Colorado, In Department.

May 22, 1961.

Rehearing Denied June 12, 1961.

Bellinger & Faricy, Pueblo, for plaintiff in error.

Petersen, Evensen & Evans, Pueblo, for defendant in error.

FRANTZ, Justice.

Zavislan, plaintiff below, was successful in his suit to quiet title to certain real property, a sizable portion of which is involved in this proceeding. In his complaint, he alleged that he was the owner and in possession of the property in controversy. Vider answered, pleading title in himself. To this answer Zavislan filed a reply in two parts, the second of which sought to defeat Vider's title and establish title in Zavislan under two seven-year statutes of limitation.

His reliance upon the two seven-year statutes of limitation appears from these paragraphs of his reply:

'2. That plaintiff has been in actual and continuous possession of the property covered and conveyed by said deed and has paid all taxes legally assessed thereon for a period in excess of seven successive years next prior to the commencement of this action.

'3. That plaintiff has been in constructive possession of the vacant and unoccupied property covered and conveyed by said deed and has paid all taxes legally assessed thereon for a period in excess of seven successive years next prior to the commencement of this action.'

Much of the evidence adduced at the trial in support of the contentions of the parties was documentary and undisputed. The chief dispute arose over who had possession of the property in controversy. There was evidence in support of Zavislan's claim that he had actual possession of the property for a period of approximately two years. Vider attempted to show that he had actual possession during the times in controversy.

The property in dispute was platted into lots and blocks and the plat recorded in the public records of Pueblo County on April 5, 1889. Vacation of the plat was recorded in said public records in June 22, 1896.

On November 25, 1904 certificate of purchase No. 21189 was issued to the County of Pueblo for failure to pay the 1903 taxes. On June 28, 1939 this certificate of purchase was assigned to H. J. Claas, Vider's predecessor in interest, who thereafter, on June 4, 1941, received a treasurer's deed, which was recorded on the same day. On March 29, 1944 another treasurer's deed, predicated upon the same certificate of purchase No. 21189, was issued to the County of Pueblo, and forms the basis for the issuance of the deed to Zavislan.

On July 11, 1945 Class delivered his quitclaim deed to the property in dispute and his warranty deed to the property contiguous thereto to Vider, who recorded these deeds on July 13, 1945. Vider moved into the premises contiguous to the property in dispute in August 1945. From that day forward he and his family have resided at said premises. Besides the home a barn and corral had been built on the contiguous property. Livestock was kept therein. The subject property, though vacant, was at times used by Vider for grazing.

On May 28, 1947 a deed from the County was issued to Zavislan, conveying Lots 1 to 17 inclusive, Block 61; Lots 1 to 34 inclusive, Block 62; Lots 1 to 18 inclusive, Block 71; and Lots 1 to 34 inclusive, Block 72; 'all in Fairmount Park, Second Filing, according to the recorded plat thereof.' These lots comprise a portion of the property in litigation here. In the instruments conveying to Vider and those through which he derives his interest, the property was described by metes and bounds.

On the property deeded to Zavislan he paid the taxes for the years 1948 through 1955, after which he brought the present suit. In the course of the trial Vider offered to reimburse Zavislan for all monies expended by him in any manner on the subject property. An oral stipulation confirming such offer, depending upon a judgment favorable to Vider, was made by the parties in court.

At the conclusion of the case, the court made extensive findings and conclusions of law, after which it entered judgment in favor of Zavislan and against Vider.

In its findings the trial court found that Zauislan had permitted one Ellis and one Hyde 'to construct and maintain a fence around a portion of the property in controversy and for approximately two years said Ellis and Hyde used said property with [Zavislan's] permission for the purpose of grazing horses thereon; that said fence was taken down by Ellis and Hyde in about 1950 * * *.'

The court further found '[t]hat the land in question is open prairie land, has been without buildings, cultivation or improvements of any kind from 1946 through 1956, except for the Ellis-Hyde fence, some temporary drift fences placed thereon by Vider from time to time * * *.'

By another finding the trial court stated '[t]hat aside from the period when Ellis and Hyde had a permanent fence surrounding a portion of the property in dispute, said property has at all times been vacant and unoccupied property until shortly prior to the institution of this suit * * *.'

The trial court concluded in part:

'4. That possession of Ellis and Hyde for the period between 1948 and 1950 constituted possession of plaintiff Zavislan.

'5. That prior to the erection of and subsequent to the removal of the Ellis-Hyde fence in 1950, the land in controversy constituted and remained vacant and unoccupied land until possession was taken by the Northwest Engineering Company under contract with plaintiff shortly prior to the institution of this suit.

'6. That plaintiff has been in actual or constructive possession of said disputed property, for a period in excess of seven successive years next prior to the commencement of this action under color of title and payment of all taxes levied or assessed.

'7. That C.R.S.1953 Chapter 118-7-8 and 118-7-9 are to be considered to be in pari materia, and the actual possession of plaintiff for the two year period that Ellis and Hyde exercised control of this property, and the constructive possession of plaintiff while said property was vacant and unoccupied and while plaintiff was paying taxes thereon in good faith and period or by relinquishing actual possession added together to make up the seven year period required under the statute. To hold otherwise would defeat the wholesome effect of the statute by saying that the taxpayer forfeited his right to claim its benefit by taking actual possession of vacant or unoccupied land before the end of the seven year period or by relinquishing actual posession of such lands although continuing to pay the taxes thereon as vacant and unoccupied land.'

Findings of the trial court, resolving disputed evidence, are binding upon this court. Applying this oft-stated rule, we accept the finding of the trial court that for a period of approximately two years Zavislan was in actual possession of a major portion of property which...