How do I claim or file for a claim of adverse possession in the state of Colorado?

Full Question:

How do I claim or file for a claim of adverse possession in the state of Colorado?
05/28/2017   |   Category: Real Property ยป Adverse Poss...   |   State: Colorado   |   #37981

Answer:

See https://answers.uslegal.com/real-property/adverse-possession/18810/



See statutes below for 18 year requirement and other elements. Please see current version for latest laws.
Colorado Revised Statutes
Title 38 PROPERTY- REAL AND PERSONAL Article 41 Limitations
Part 1 Limitations of Actions Affecting Real Property

38-41-101. Limitation of eighteen years.

(1) No person shall commence or maintain an action for the recovery of the title or possession or to enforce or establish any right or interest of or to real property or make an entry thereon unless commenced within eighteen years after the right to bring such action or make such entry has first accrued or within eighteen years after he or those from, by, or under whom he claims have been seized or possessed of the premises. Eighteen years'  adverse  possession of  any  land shall  be conclusive evidence of absolute ownership.

(2) The limitation provided for in subsection (1) of this section shall not apply against the state, county, city and county, city, irrigation district, public, municipal, or quasi-municipal corporation, or any department or agency thereof. No possession by any person, firm, or corporation, no matter how long continued, of any land, water, water right, easement, or other  property  whatsoever  dedicated  to  or  owned  by  the  state  of Colorado, or any county, city and county, city, irrigation district, public, municipal, or quasi-municipal corporation, or any department or agency thereof shall ever ripen into any title, interest, or right against the state of Colorado,  or such county,  city and county,  city, public, municipal,  or quasi-municipal  corporation,  irrigation  district,  or  any  department  or agency thereof.

(3) (a) In order to prevail on a claim asserting fee simple title to real property by adverse possession in any civil action filed on or after July 1,
2008, the person asserting the claim shall prove each element of the
claim by clear and convincing evidence.

(b) In addition to any other requirements specified in this part 1, in any action  for  a  claim  for  fee  simple  title  to  real  property  by  adverse possession for which fee simple title vests on or after July 1, 2008, in favor of the adverse possessor and against the owner of record of the real property under subsection (1) of this section, a person may acquire fee simple title to real property by adverse possession only upon satisfaction of each of the following conditions:

(I) The person presents evidence to satisfy all of the elements of a claim for adverse possession required under common law in Colorado; and

(II) Either the person claiming by adverse possession or a predecessor in interest of such person had a good faith belief that the person in possession of the property of the owner of record was the actual owner of the property and the belief was reasonable under the particular circumstances.

(4) Notwithstanding any other provision of this section, the provisions of subsections  (3)  and  (5)  of  this  section shall  be  limited  to  claims  of adverse possession for the purpose of establishing fee simple title to real property and shall not apply to the creation,  establishment,  proof, or judicial confirmation or delineation of easements by prescription, implication, prior use, estoppel, or otherwise, nor shall the provisions of subsections (3) or (5) of this section apply to claims or defenses for equitable relief under the common-law doctrine of relative hardships, or claims or defenses governed by any other statute of limitations specified in this article. Nothing in this section shall be construed to mean that any elements  of  a  claim  for  adverse  possession  that  are  not  otherwise
 
applicable to the creation, establishment, proof, or judicial confirmation or delineation of easements by prescription, implication, prior use, estoppel, or  otherwise  are made applicable  pursuant  to  the  provisions  of  this section.

(5) (a) Where the person asserting a claim of fee simple title to real property by adverse possession prevails on such claim, and if the court determines in its discretion that an award of compensation is fair and equitable under the circumstances, the court may, after an evidentiary hearing separately conducted after entry of the order awarding title to the adverse possessor, award to the party losing title to the adverse possessor:

(I)  Damages  to  compensate  the  party  losing  title  to  the  adverse possessor for the loss of the property measured by the actual value of the property as determined by the county assessor as of the most recent valuation for property tax purposes. If the property lost has not been separately taxed or assessed from the remainder of the property of the party  losing title to the  adverse  possessor,  the  court  shall  equitably apportion the actual value of the property to the portion of the owner's property lost by adverse possession including, as appropriate, taking into account  the  nature  and  character  of  the  property  lost  and  of  the remainder.

(II)  An  amount  to  reimburse  the  party  losing  title  to  the  adverse possessor for all or a part of the property taxes and other assessments levied against and paid by the party losing title to the adverse possessor for the period commencing eighteen years prior to the commencement of the adverse possession action and expiring on the date of the award or entry of final nonappealable judgment, whichever is later. If the property lost has not been separately taxed or assessed from the remainder of the property of the party losing title to the adverse possessor, such reimbursement  shall  equitably  apportion  the  amount  of  the reimbursement to the portion of the owner's property lost by adverse possession, including, as appropriate, taking into account the nature and character of the property lost and of the remainder. The amount of the award shall bear interest at the statutory rate from the dates on which the party losing title to the adverse possessor made payment of the reimburseable taxes and assessments.

(b) At any hearing conducted under this subsection (5), or in the event that adverse possession is claimed solely as a defense to an action for damages  based  upon  a  claim  for  trespass,  forcible  entry,  forcible detainer, or similar affirmative claims by another against the adverse possessor, and not to seek an award of legal title against the claimant, the burden of proof shall be by a preponderance of the evidence. If the defendant is claiming adverse possession solely as a defense to an action and not to seek an award of legal title, the defendant shall so state in a pleading filed by the defendant within ninety days after filing an answer or within such longer period as granted by the court in the court's discretion, and any such statement shall bind the defendant in the action.

Source: L. 27: p. 598, § 30. CSA: C. 40, § 136. CRS 53: § 118-7-1. C.R.S. 1963: § 118-7-1. L. 67: p. 351, § 1. L. 2008: (3), (4), and (5) added, p. 668, § 1, effective July 1.

Editor's note: Section 2 of chapter 190, Session Laws of Colorado 2008, provides that the provisions of the act enacting subsection (3)(a) apply to civil actions filed on or after July 1, 2008. Said section 2 provides that the remaining provisions of the act enacting subsections (3)(b), (4), and (5) apply to claims for title to real property for which fee simple title vests in 
favor of the adverse possessor and against the owner of record of the real property on or after July 1, 2008.

Cross references: For the effect of this section of registration of land under the Torrens title system, see § 38-36-137.

ANNOTATION

Analysis

I. General Consideration. II. Adverse Possession.
A. In General.
B. Actual, Adverse, Hostile, Exclusive, and Uninterrupted Possession. III. Pleading and Practice.

I. GENERAL CONSIDERATION.

Am. Jur.2d. See 51 Am. Jur.2d, Limitation of Actions, §§ 66-68. C.J.S. See 54 C.J.S., Limitations of Actions, § 64.
Law reviews. For article, "The Interest of Landowner and Lessee in Oil and  Gas  in  Colorado",  see  25  Rocky  Mt.  L.  Rev.  117  (1953).  For comment on Lovejoy v. Sch. Dist. No. 46, 129 Colo. 306, 269 P.2d 1067 (1954), appearing below, see 31 Dicta 279 (1954). For note, "Adverse Possession in Colorado", see 27 Rocky Mt. L. Rev. 88 (1954). For article, "Survey of Title Irregularities, Curative Statutes and Title Standards in Colorado", see 35 U. Colo. L. Rev. 21 (1962). For article, "One Year Review of Property", see 40 Den. L. Ctr. J. 181 (1963). For note, "A Survey of Colorado Water Law", see 47 Den. L.J. 226 (1970).

Section should be construed as acting prospectively only, and does not apply to causes of action existing at the time of its adoption. Edelstein v. Carlile, 33 Colo. 54, 78 P. 680 (1904).

Not retrospectively. This section cannot be applied where to do so would be giving to this part a retrospective effect. Connell v. Clifford, 39 Colo.
121, 88 P. 850 (1907); Bonfils v. Pub. Utils. Comm'n, 67 Colo. 563, 189
P. 775 (1920).

The  objection  to  retrospective  statutes  does  not  apply  to  remedial statutes such as the statute of limitations, and these statutes may be retrospective in nature, provided they do not impair contracts or disturb vested rights. Edelstein v. Carlile, 33 Colo. 54, 78 P. 680 (1904). See also Fisher v. Hervey, 6 Colo. 16 (1881).

The extended limitations period of 18 years set forth in this section does not apply outside the context of an adverse possession claim. San Juan Basin Consortium, Ltd. v. EnerVest San Juan Acquisition Ltd. P'ship., 67
F. Supp.2d 1213 (D. Colo. 1999).

General assembly cannot revive action once bar attaches. When the bar of the statute has once attached, the general assembly cannot, by an amendatory act, revive the action. Willoughby v.  George,  5 Colo.  80 (1879); Edelstein v. Carlile, 33 Colo. 54, 78 P. 680 (1904).

Public easements are not subject to the bar of the statute of limitations. Bowen v. Turgoose, 136 Colo. 137, 314 P.2d 694 (1957).
 
Owner's disability no bar to statute. The fact that an owner is under disability until her death does not prevent the running of the statute of limitations. Nesbitt v. Jones, 140 Colo. 412, 344 P.2d 949 (1959).

For purposes of the exception to adverse possession in subsection (2), a "quasi-municipal corporation" is a public agency endowed with such attributes of a municipality as may be necessary in the performance of its limited objective. Goodwin v. Thieman, 74 P.3d 526 (Colo. App. 2003).

During the 18-year limitation period, the disputed property was owned by a corporation that was not a public entity or governmental agency; therefore, the corporation was not a "quasi-municipal  corporation" for purposes of the exception to adverse possession. Goodwin v. Thieman,
74 P.3d 526 (Colo. App. 2003).

Applied in Swift v. Smith, 79 F. 709 (8th Cir. 1897); Riggs v. McMurtry,
157 Colo. 33, 400 P.2d 916 (1965); Glendale Water & San. Dist. v. City &
County of Denver, 164 Colo. 557, 436 P.2d 669 (1968); Hayden v. Bd. of County Comm'rs, 41 Colo. App. 102, 580 P.2d 820 (1978); Crawford v. French, 633 P.2d 524 (Colo. App. 1981); Canady v. Shelden, 683 P.2d
1205 (Colo. App. 1983); City of Canon City v. Cingoranelli, 740 P.2d 546
(Colo. App. 1987); Whinnery v. Thompson, 868 P.2d 1095 (Colo. App.
1993).

II. ADVERSE POSSESSION.

A. In General.

Possession for 18 years becomes conclusive evidence of absolute ownership of the property, as provided by this section. Concord Corp. v. Huff, 144 Colo. 72, 355 P.2d 73 (1960).

Where plaintiffs and their predecessors in title have been in possession of easement for more than 18 years, a presumption arises that their possession was adverse and defendant has the burden to overcome such  presumption  by  sufficient  evidence  of  permissive  use.  Irvin  v. Brand, 690 P.2d 1283 (Colo. App. 1984); Durbin v. Bonanza Corp., 716
P.2d 1124 (Colo. App. 1986).

Initial presumption in adverse possession case is in favor of the record title holder. Whinnery v. Thompson, 868 P.2d 1095 (Colo. App. 1993).

The doctrine of adverse possession recognizes the record owner's right to exercise dominion over the property, but holds that the right is lost if a claimant adversely possesses the property for the required time. Ocmulgee Prop. Inc. v. Jeffery, 53 P.3d 665 (Colo. App. 2001).

Record owner's application to subdivide property and for an exemption from  county subdivision regulations did not  constitute  an exercise  of control over the property sufficient to disrupt the period of adverse possession by the claimant in actual possession of the property. The proceedings on the application, standing alone, did not dispossess the claimant, did not constitute an entry on the land sufficient to reinstate the record  owner in possession,  did not  constitute legal action to regain possession of the land or the equivalent of such an action, and did not result  in  the  ejectment  of  plaintiff  or  its  predecessors  in  interest. Ocmulgee Prop. Inc. v. Jeffery, 53 P.3d 665 (Colo. App. 2001).

Any act, other than abandonment, that is inconsistent with ownership and occurs after title by adverse possession is vested does not defeat that title. Welsch v. Smith, 113 P.3d 1284 (Colo. App. 2005). 
The law of prescriptive easements permits acquisition of enforceable property rights through unlawful action, namely, trespass for the prescriptive period of time. Clinger v. Hartshorn, 89 P.3d 462 (Colo. App.
2003).

A party who claims a prescriptive easement must prove by a preponderance of the evidence continuous, open, and adverse use of the easement for the statutory period of 18 years. Proper v. Greager, 827
P.2d 591 (Colo. App. 1992).

A prescriptive easement is acquired when the use is open or notorious, continuous without effective interruption for an 18-year period, and either adverse or pursuant to an attempted but ineffective grant. Intermittent use on a long-term basis is sufficient to satisfy the open, notorious, and continuous use requirement, and using an easement for 18 years entitles the  holder to the presumption that  the use  was adverse.  Clinger  v. Hartshorn, 89 P.3d 462 (Colo. App. 2003).

If a servient owner's use of land is truly adverse--that is, clearly incompatible or irreconcilable with the use of the easement--the trial court may grant relief even in the absence of the need for the right-of-way, demand made by the owner of the dominant tenement, and refusal to comply by the owner of the servient tenement. Proof of dominant estate owner's intent to abandon easement is not required. Abandonment is not an element of termination by prescription. Matoush v. Lovingood, 159
P.3d 741 (Colo. App. 2006).

Undisputed  evidence  showed that  use  of  easement  was  sufficiently adverse and that the claim of right to use need not be made by a hostile or antagonistic act. Proper v. Greager, 827 P.2d 591 (Colo. App. 1992).

Adverse  possessor's  interest  enforceable  against  everyone  except owner. From the beginning of his possession period, an adverse possessor  has  an  interest  in  a  given  piece  of  property  enforceable against everyone except the owner or one claiming through the owner. Spring Valley Estates, Inc. v. Cunningham, 181 Colo. 435, 510 P.2d 336 (1973).

Grant of permission to use disputed property followed by subsequent inaction to disclaim permission would be sufficient to interrupt the running of the statutory period of adverse possession. McKenzie v. Pope, 33
P.3d 1277 (Colo. App. 2001).

A barrier established for the purpose of, and in fact, interrupting an adverse  claimant's  use  is  sufficient  to  interrupt  the  running  of  the statutory period, even if the barrier is removed by the adverse claimant. Trask v. Nozisko, 134 P.3d 544 (Colo. App. 2006).

Interest matures into absolute fee after statutory duration. It is not until the adverse possessor has possessed the land for the duration of the statutory period that his interest matures into an absolute fee and his possessory rights become enforceable against the former owner as well as third parties. Spring Valley Estates, Inc. v. Cunningham, 181 Colo.
435, 510 P.2d 336 (1973).

Title  to  property  acquired  by  adverse  possession  matures  into  an absolute fee interest after the statutory prescriptive period has expired. Doty v. Chalk, 632 P.2d 644 (Colo. App. 1981).

Conveyance to adverse use begins statute's running. Conveyance of a water right, serving to transform a previous permissive use of water by a canal  company to a use which is adverse  and  inconsistent  with the
 
previous relationship of the parties, begins the running of the statute of limitations against a suit for possession or to determine ownership of the water right. Nesbitt v. Jones, 140 Colo. 412, 344 P.2d 949 (1959).

Acquiescence in adverse use may divest prior right of use. Individuals in whom a prior right to the use of water is vested may lose such right by acquiescence in an adverse use thereof by another continued uninterruptedly for the statutory period. Lomas v. Webster, 109 Colo.
107, 122 P.2d 248 (1942).

Establishment of division line by parol  agreement  conclusive against owners. Where there is a doubt or uncertainty, or a dispute has arisen, as to the true location of a boundary line, the adjoining owners may, by parol agreement, establish a division line and, where the agreement is executed and actual possession is taken under such agreement, it is conclusive against the owners and those claiming under them. Schleining v. White, 163 Colo. 481, 431 P.2d 458 (1967).

Settlement of readjustments of boundary line. If one of two innocent parties must suffer a loss of land due to boundary line readjustments called for by later official surveys, it must fall upon the party who is later in time and who has never been in actual possession of the land in question. Marr v. Shrader, 142 Colo. 106, 349 P.2d 706 (1960).

Tacking possessions of area  not  described in  deed.  The tacking  of successive adverse possessions of vendor and purchaser of an area not within the premises described in a deed, but contiguous thereto, requires that the grantor intend to transfer possession of such area to the purchaser. Doty v. Chalk, 632 P.2d 644 (Colo. App. 1981).

When title by adverse possession vanishes. Title by adverse possession vanishes when the treasurer issues his valid deed for  unpaid taxes. Linville v. Russell, 168 Colo. 459, 452 P.2d 18 (1969).

Issuance of treasurer's deed creates virgin title. The issuance of a valid treasurer's deed creates a virgin title erasing all former interests in the land. Whiteman v. Mattson, 167 Colo. 183, 446 P.2d 904 (1968).

Title to lands  derived  from  federal  government.  Statutory  limitations affecting title to lands derived from the federal government begin to run in favor of an adverse claimant in possession when the entryman is legally entitled to a patent, and not from the date of filing a homestead or desert entry.  Denver &  R.G.R.R.  v.  Wilson,  28  Colo.  6,  62  P.  843 (1900); Prieshof v. Baum, 94 Colo. 324, 29 P.2d 1032 (1934).

Failure to institute action within limitation period constitutes bar. Where the  pilasters  of  a  building  more  than  50  years  old  encroached  on plaintiffs' land, and had so encroached from the time the building was constructed, and no action had been instituted by plaintiffs or their predecessors in title within 18 years after the original encroachment, plaintiffs were barred from asserting any claim or right by reason of such encroachment. Williams v. Wills, 149 Colo. 213, 368 P.2d 558 (1962).

Ownership of water right may be deemed ownership of real property for purposes of adverse possession claims. Matter of Water Rights of V- Heart Ranch, 690 P.2d 1271 (Colo. 1984).

B.    Actual,    Adverse,    Hostile,    Exclusive,    and   Uninterrupted
Possession.

"Possession" defined. "Possession", referred to in subsection (1), means a  general  holding  and  occupancy  with  complete  dominion  over  the 
property involved to the exclusion of others. Concord Corp. v. Huff, 144
Colo. 72, 355 P.2d 73 (1960).

Possession of one cotenant is possession of all. Atchison, T. & S.F. Ry. v. North Colo. Springs Land & Imp. Co., 659 P.2d 702 (Colo. App. 1982).

Proof required of adverse possessor. To prove adverse possession, the one claiming it must clearly show, not only that his possession was actual, adverse, hostile, and under claim of right, but that it has also been exclusive and uninterrupted for the statutory period. Segelke v. Atkins,
144 Colo. 558, 357 P.2d 636 (1960); Hayden v. Morrison, 152 Colo. 435,
382 P.2d 1003 (1963); Sanchez v. Taylor, 377 F.2d 733 (10th Cir. 1967); Dzuris v. Kucharik, 164 Colo. 278, 434 P.2d 414 (1967); Raftopoulos v. Monger, 656 P.2d 1308 (Colo. 1983); Matter of Estate of Qualteri, 757
P.2d 1093 (Colo. App. 1988); Schutten v. Beck, 757 P.2d 1139 (Colo.
App. 1988); Smith v. Hayden, 772 P.2d 47 (Colo. 1989); Bd. of County Comm'rs v. Ritchey, 888 P.2d 298 (Colo. App. 1994); Goodwin v. Thieman, 74 P.3d 526 (Colo. App. 2003); Schuler v. Oldervik, 143 P.3d
1197 (Colo. App. 2006).

Actual occupancy means the ordinary use to which the land is capable and such occupancy as an owner would make of it. Anderson v. Cold Spring Tungsten, Inc., 170 Colo. 7, 458 P.2d 756 (1969).

Actual  possession is established where the claimant shows that  the property  was  used  in  a  manner  commensurate  with  its  particular attributes. Doty v. Chalk, 632 P.2d 644 (Colo. App. 1981); Kroulik v. Knuppel, 634 P.2d 1027 (Colo. App. 1981).

Actual   occupation   required   absent   barriers   or   deed.   Where   the boundaries of the land claimed have not been established by fences or barriers and there is no deed describing the extent of their holding, the parties claiming title by adverse possession may not claim any property not actually occupied by them for the statutory period because the extent of actual occupancy must be determined by the court when ascertaining the extent of the adverse intent. Anderson v. Cold Spring Tungsten, Inc.,
170 Colo. 7, 458 P.2d 756 (1969); Smith v. Hayden, 772 P.2d 47 (Colo.
1989).

Actual  occupancy is not  limited to structural  encroachment  which  is common  but  is  not  the  only  physical  characteristic  of  possession. Anderson v. Cold Spring Tungsten, Inc., 170 Colo. 7, 458 P.2d 756 (1969).

Adverse possession without enclosure need not be characterized by a physical, constant, visible occupancy or improved by improvements of every square foot of the land. Anderson v. Cold Spring Tungsten, Inc.,
170 Colo. 7, 458 P.2d 756 (1969).

Mere occupancy insufficient notice of adverse possession. Mere occupancy is not sufficient to put any of the true owners on notice that the adverse claimant claimed the land, and the burden of proof, as to open, notorious, and hostile claim, is upon the adverse claimant when it claims title by adverse possession without color of title, and every reasonable presumption is made in favor of the true owner as against adverse possession. Lovejoy v. Sch. Dist. No. 46, 129 Colo. 306, 269
P.2d 1067 (1954).

Use of land for pasturage not hostile to owner. The use of land for pasturage, natural products, and timber does not ordinarily  constitute adverse possession because the pasturage of cattle on unfenced lands cannot be regarded as hostile and adverse to the owner of such land.
 
Smith v. Town of Fowler, 138 Colo. 359, 333 P.2d 1034 (1959); Sanchez v. Taylor, 377 F.2d 733 (10th Cir. 1967).

The practice of grazing cattle on unfenced land is not of itself sufficient to show adverse possession. Thomson v. Clarks, Inc., 162 Colo. 506,
427 P.2d 314 (1967); First Nat'l Bank v. Fitzpatrick, 624 P.2d 927 (Colo. App. 1981).

Claim sufficient upon erection of fence. A fencing in of the disputed tracts and an uninterrupted use by predecessors in interest for pasturage and haying, showed exclusive, open, notorious, continuous, and adverse possession for the requisite period. McKelvy v. Cooper, 165 Colo. 102,
437 P.2d 346 (1968).

Where, in addition to pasturing livestock, a fence is erected, the statutory period  begins  to  run  and  the  adverse  possession  claim  will  not  be defeated because use for this purpose is seasonal. First Nat'l Bank v. Fitzpatrick, 624 P.2d 927 (Colo. App. 1981).

Whether a fence is sufficiently adverse to start the prescriptive period depends  on  the circumstances  of  each  case.  If  the  fence  does  not completely block the easement or is otherwise compatible with the use of the  easement,  it  will  not  start  the  prescriptive  period.  If  the  fence frustrates the easement, it will trigger the prescriptive period. Matoush v. Lovingood, 159 P.3d 741 (Colo. App. 2006).

Although the mere existence of a fence does not establish  adverse possession of land beyond the fence line, when both property owners believe  that  the  fence  has  marked  the  true  boundary  between  the property for 18 years, there is a presumption that the holding is adverse. Bd. of County Comm'rs v. Ritchey, 888 P.2d 298 (Colo. App. 1994); Welsch v. Smith, 113 P.3d 1284 (Colo. App. 2005).

Where landowners' predecessors in interest acquiesced in placement of fenceline set back from property line, strip of land between fence and property line became a public highway pursuant to § 43-2-201(1)(c) as a result of its adverse use by the public for over 20 uninterrupted years. Bd. of County Comm'rs v. Ritchey, 888 P.2d 298 (Colo. App. 1994).

Mere existence of fence erected south of true boundary of claimants' property did not establish adverse possession when neither the claimants nor their predecessor in interest  had erected the fence  or  adversely claimed or occupied area of land between the boundary and the fence. Schutten v. Beck, 757 P.2d 1139 (Colo. App. 1988).

Removal of a fence after the land has been adversely possessed for more than the statutory period would not necessarily rebut the presumption of adversity. Welsch v. Smith, 113 P.3d 1284 (Colo. App.
2005).

Adjoining owner not clothed with possession by destruction of fence. The mere erasure of a common boundary fence in a flood disaster does not clothe an adjoining owner with possession of lands adversely to his neighbors.  Smith v.  Town of  Fowler, 138 Colo. 359, 333 P.2d 1034 (1959).

Any actual visible means establishing dominion is sufficient. Any actual visible means, which gives notice of exclusion from the property to the true owner or to the public and of the defendant's dominion over it, is sufficient. Anderson v. Cold Spring Tungsten, Inc., 170 Colo. 7, 458 P.2d
756 (1969); Matter of Estate of  Qualteri,  757 P.2d 1093 (Colo.  App.
1988). 

Possession must be hostile. The very essence of adverse possession is that the possession must be hostile, not only against the true owner, but against the world as well. Lovejoy v. Sch. Dist. No. 46, 129 Colo. 306,
269 P.2d 1067 (1954); Smith v. Town of Fowler, 138 Colo. 359, 333 P.2d
1034 (1959); Sanchez v. Taylor, 377 F. 2d 733 (10th Cir. 1967).

Adverse claim must be hostile at its inception, because, if the original entry is not openly hostile or adverse, it does not become so, and this section does not begin to run as against a rightful owner until an adverse claimant disavows the idea of holding for, or in subservience to another, it actually sets up an exclusive right in himself by some clear, positive and unequivocal act. Lovejoy v. Sch. Dist. No. 46, 129 Colo.306, 269
P.2d 1067 (1954); Smith v. Town of Fowler, 138 Colo. 359, 333 P.2d
1034 (1959).

The character of the possession must become hostile in order that it may be deemed to be adverse, and this hostility must continue for the full statutory period because this section begins to run at the time the possession of the claimant becomes adverse to that of the owner, and this occurs when the claimant sets up title in himself by some clear, positive, and unequivocal act. Lovejoy v. Sch. Dist. No. 46, 129 Colo.
306, 269 P.2d 1067 (1954).

Hostile and adverse requirement does not mean violence. The requirement that adverse possession be both hostile and adverse does not mean that there need be any violence connected with the entry onto the property or that there be any actual dispute as to ownership between the adverse possessor and the owner of the property. Anderson v. Cold Spring Tungsten, Inc., 170 Colo. 7, 458 P.2d 756 (1969).

Actual dispute with neighbor not necessary to show intent. A deliberate attempt to steal a neighbor's property, or an actual dispute at  some previous time is not necessary in order to show an intention to hold adversely in Colorado. Moss v. O'Brien, 165 Colo. 93, 437 P.2d 348 (1968).

Hostility arises from intention of adverse possessor to claim exclusive ownership  of  the  property  occupied,  and  no  specific  intent  directed toward  the  property  owner  is  required.  Anderson  v.  Cold  Spring Tungsten, Inc., 170 Colo. 7, 458 P.2d 756 (1969); Niles v. Churchill, 29
Colo. App. 283, 482 P.2d 994 (1971); Bd. of County Comm'rs v. Ritchey,
888 P.2d 298 (Colo. App. 1994).

The court has found hostile and adverse possession even though the adverse possessor had stated that  he was claiming only to what he believed to be the true boundary of his land and had no intention of claiming the land of another; all that is required to establish hostility is that the person claiming adverse possession occupy the property with belief that the property is his and not another's. Anderson v. Cold Spring Tungsten, Inc., 170 Colo. 7, 458 P.2d 756 (1969); Niles v. Churchill, 29
Colo. App. 283, 482 P.2d 994 (1971).

Hostility not determined only from parties' declarations. Hostile intent is to be determined not only from the declarations of the parties but from reasonable deductions from the facts as well. Moss v. O'Brien, 165 Colo.
93, 437 P.2d 348 (1968); Anderson v. Cold Spring Tungsten, Inc., 170
Colo. 7, 458 P.2d 756 (1969); Matter of Estate of Qualteri, 757 P.2d 1093 (Colo. App. 1988); Miller v. Bell, 764 P.2d 389 (Colo. App. 1988).

In cases of claimed adverse possession between close family members, the applicable rule is that "strong proof" of  hostility is required  if the
 
claimant takes possession of property belonging to a relative and there exists no presumption that the possession of land of one family member by another family member is  permissive and  not  adverse.  Matter  of Estate of Qualteri, 757 P.2d 1093 (Colo. App. 1988).

Actual visible possession may create adverse intent. Actual visible possession to a given line is a circumstance from which a court may find adverse intent, even though the intention was to claim only to the true line. Moss v. O'Brien, 165 Colo. 93, 437 P.2d 348 (1968).

Possession of successive disseizors may be joined for continuous possession. Where there is privity of title or estate, the possession of successive disseizors may be joined or tacked together so as to be regarded as continuous possession. Hodge v. Terrill, 123 Colo. 196, 228
P.2d 984 (1951).

Recognition of title in another is inconsistent with adverse possession. Where an occupant of land acknowledges or recognizes the title of the owner during the period of his claimed adverse possession, he fatally interrupts the continuity of his adverse possession because recognition of title in another is inconsistent with the theory of adverse possession, and the statute of limitations does  not  begin to run  in his favor  until  he repudiates the owner's title. Segelke v. Atkins, 144 Colo. 558, 357 P.2d
636 (1960).

Public use of part of property does not disprove exclusive possession. The public use of part of the property in question for picnicking does not disprove exclusive possession because, for possession to be exclusive, it is not necessary that all use of that property by the public be prevented. Anderson v. Cold Spring Tungsten, Inc., 170 Colo. 7, 458 P.2d 756 (1969).

Property used in common with public negatives exclusive possession. Proof that ever since 1917, the defendants and their predecessors, as well as other members of the general public similarly situated have used the property described in plaintiff's complaint for a public right-of-way negatives defendants' contentions that they were in the open, notorious, exclusive possession of the property, adverse to any and all other claimants. Nelson v. Van Cleve, 143 Colo. 117, 352 P.2d 269 (1960).

Casual intrusion does not defeat adverse claim. A mere casual intrusion by a fisherman, or even by several, did not deprive the plaintiff's adverse possession of its exclusive character or defeat their claim. McKelvy v. Cooper, 165 Colo. 102, 437 P.2d 346 (1968); Anderson v. Cold Spring Tungsten, Inc., 170 Colo. 7, 458 P.2d 756 (1969).

Legal titleholder prevails over common possession. In case of a mixed or common possession of land by both parties to a suit, the law adjudges the rightful possession to him who holds legal title, and no length of time of possession can give title by adverse possession as against the legal title. Dzuris v. Kucharik, 164 Colo. 278, 434 P.2d 414 (1967).

Statute does not run until ouster established. Until an actual ouster of the cotenant is established by conduct apart from mere use and occupation of the land by claimant, the statute giving rise to a claim of adverse possession does not begin to run. Atchison, T. & S.F. Ry. v. North Colo. Springs Land & Imp. Co., 659 P.2d 702 (Colo. App. 1982).

Permissive possession. The statute of limitations does not start to run where the possession is from inception permissive because a possession which is permissive or is otherwise consistent with a record owner's title is merely that of an owner at whose pleasure it continues. Nesbitt v. 
Jones, 140 Colo. 412, 344 P.2d 949 (1959); Miller v. Bell, 764 P.2d 389 (Colo. App. 1988).

For permissive entry on land to become adverse notice or an explicit disclaimer must be given to the owner. Segelke v. Atkins, 144 Colo. 558,
357 P.2d 636 (1960); Matter of Estate of Qualteri, 757 P.2d 1093 (Colo. App. 1988); Miller v. Bell, 764 P.2d 389 (Colo. App. 1988).

County's initial entry on strip of land was not permissive, but rather by the assertion of ownership through  county  dedication of  section  and township lines as public highways. Bd. of County Comm'rs v. Ritchey,
888 P.2d 298 (Colo. App. 1994).

To assert a claim of adverse possession against a vendor, a vendee is required  to unequivocally renounce  the contract  relationship  between them and his rights thereunder prior to assertion of a right antagonistic to that of his vendor. White v. Widger, 144 Colo. 566, 358 P.2d 592 (1960).

Trespassers do not acquire possession. Trespassers who go upon lands for a special purpose, hunting, fishing, camping, surveying, etc., do not thereby acquire possession. Concord Corp. v. Huff, 144 Colo. 72, 355
P.2d 73 (1960).

Placing improvements on property not disseisin. The placing of a few improvements or structures on the property is not a taking possession thereof or a disseisin. Concord Corp. v. Huff, 144 Colo. 72, 355 P.2d 73 (1960).

Transfer of property acquired through adverse possession may only be effected by a validly executed deed, by adverse possession, or by other legal means. Doty v. Chalk, 632 P.2d 644 (Colo. App. 1981).

Void tax deeds. Void tax deeds do not  convey title,  and are wholly ineffective to interrupt another's right to possession of the property they purport to convey. Concord Corp. v. Huff, 144 Colo. 72, 355 P.2d 73 (1960).

Effect of disclaimer. Where title to disputed property vested in a party by adverse possession long before a disclaimer was executed, such disclaimer has no legal effect. Doty v. Chalk, 632 P.2d 644 (Colo. App.
1981).

Payment of taxes does not indicate sole ownership. Payment of all of the taxes on the subject property for many years does not indicate a claim of sole ownership, especially in view of the paying party's use and possession of the property rent-free. Atchison, T. & S.F. Ry. v. North Colo. Springs Land & Imp. Co., 659 P.2d 702 (Colo. App. 1982).

Adverse possession not found. Plaintiff's testimony that water was used from sump since 1949, that she and her husband worked side-by-side, that in 1966 they were irrigating 300 acres and now 800 acres, and that water has been used continuously on the farm for irrigation, along with all the  other  evidence  presented,  was  not  sufficient  evidence  to  show adverse possession. Farmer v. Farmer, 720 P.2d 174 (Colo. App. 1986).

Adverse possession found where plaintiffs' possession of property for 24 years was: (1) Hostile, because plaintiffs used the property as their own; (2) exclusive and actual, because they acted as an average landowner would in  utilizing the property  for its ordinary  use;  and  (3)  adverse, because their use of the property was sufficiently open and obvious to apprise the defendant that they intended to claim the property adversely. Schuler v. Oldervik, 143 P.3d 1197 (Colo. App. 2006).
 

A concession by the adverse possessor of the record ownership of a parcel by another need not demonstrate the lack of intent to possess adversely. Smith v. Hayden, 772 P.2d 47 (Colo. 1989).

Common ownership of two tracts of land extinguishes any acquiescence in boundary lines attributable to the prior landowners of the tracts unless the deed adopts the  boundary lines as  previously acquiesced  upon. Salazar v. Terry, 911 P.2d 1086 (Colo. 1996).

III. PLEADING AND PRACTICE.

All remedies may be utilized against record title holder after statutory period.  Once the 18-year period has passed,  all  remedies,  including those  for  quiet  title,  ejectment,  and  trespass,  may  be  utilized  even against the record title holder. Spring Valley Estates, Inc. v. Cunningham,
181 Colo. 435, 510 P.2d 336 (1973).

Damages recoverable when statutory period completed. In an action for trespass by an adverse possessor against a former title holder, damages are recoverable only from the time the 18-year statutory period has been completed. Spring Valley Estates, Inc. v. Cunningham, 181 Colo. 435,
510 P.2d 336 (1973).

Statute of limitations must be specially pleaded.  The defense of the statute of limitations is in the nature of a special privilege, and it must be pleaded specially. Chivington v. Colo. Springs Co., 9 Colo. 597, 14 P.
212 (1886); Connell v. Clifford, 39 Colo. 121, 88 P. 850 (1907).

If not specially pleaded, the defense of the statute of limitations will be waived. Connell v. Clifford, 39 Colo. 121, 88 P. 850 (1907); Chivington v. Colo. Springs. Co., 9 Colo. 597, 14 P. 212 (1886).

Because the bar of the statute of limitations is a personal privilege, to be relied upon, or not, as a defendant may choose; being a strict defense, it should be interposed in apt time, and if not, it will be deemed waived. Walters v. Webster, 52 Colo. 549, 123 P. 952 (1912).

Plaintiff's success depends upon strength of his title. A plaintiff, claiming title to a disputed piece of land and being out of possession thereof, can succeed only on the strength of his own title and not on the weakness of defendants'  title.  Reinhardt  v.  Meyer,  153  Colo.  296,  385  P.2d  597 (1963).

A person not in possession, asserting title to real property and seeking to enjoin others from claiming an interest therein, has the burden of furnishing evidence of title in himself upon which the court can rest its decision, rather than upon the supposed weakness of others claiming an interest. Nelson v. Van Cleve, 143 Colo. 117, 352 P.2d 269 (1960).

Burden of proof is on owner following 18 years of exclusive possession in an adverse claimant. Nesbitt v. Jones, 140 Colo. 412, 344 P.2d 949 (1959).

Failure of required proof prevents statute as bar to plaintiff's action. Bd. of County Comm'rs v. Blanning, 29 Colo. App. 61, 479 P.2d 404 (1970).

To establish abandonment, the relying party must show affirmative acts constituting an intention by the party claiming adverse possession to abandon. Rivera v. Queree, 145 Colo. 146, 358 P.2d 40 (1960). 
Abandonment must be established by clear, unequivocal, and decisive evidence of affirmative acts on the part of the owner of the dominant estate that manifest an intention to abandon the easement. Clinger v. Hartshorn, 89 P.3d 462 (Colo. App. 2003).

Mere nonuse not abandonment. Mere nonuse of water rights acquired by deed, though for a period less than that fixed by this section, does not work an abandonment. Fruit Growers' Ditch & Reservoir Co. v. Donald,
96 Colo. 264, 41 P.2d 516, 98 A.L.R. 1288 (1935).

Defense of laches is not available in a quiet title action because courts will not invoke equitable defenses to destroy legal rights where statutes of limitations are applicable. Jacobs v. Perry, 135 Colo. 550, 313 P.2d
1008 (1957).

Whether possession is hostile or adverse is ordinarily a question of fact. Moss v. O'Brien, 165 Colo. 93, 437 P.2d 348 (1968); Anderson v. Cold Spring Tungsten, Inc., 170 Colo. 7, 458 P.2d 756 (1969); Bd. of County Comm'rs v. Ritchey, 888 P.2d 298 (Colo. App. 1994).

Trial court must make determination where evidence conflicting. Where evidence is conflicting on the issue of whether use of land was continuously adverse for the statutory period, the trial court is required to make a specific finding as to each of the prerequisites of adverse possession. Hayden v. Morrison, 152 Colo. 435, 382 P.2d 1003 (1963).

To acquire a prescriptive easement, a party must confine his or her use to a single, definite, and certain path. Minor deviations do not defeat the claimed easement. Whether the route remained substantially the same is a factual determination for the court. The development of a new subdivision, rather than a circumstance over which plaintiffs had any control, required plaintiffs to change their point of entrance to defendants' property. Accordingly, the record supports trial court's determination that plaintiffs   adequately   proved   their   use   of   a   definite   path   across defendants' property for more than the prescriptive period of 18 years specified under this section. Weisiger v. Harbour, 62 P.3d 1069 (Colo. App. 2002).

Using an easement for more than 18 years entitles the holder to the presumption that use was adverse; however this presumption can be rebutted by showing the use was permissive. Trial court's conclusion that defendants' evidence of permissive use, based upon an arrangement of two locks on a gate separating defendants' property, one for each party, was insufficient to overcome the presumption of adverse use. Weisiger v. Harbour, 62 P.3d 1069 (Colo. App. 2002).

To satisfy the open and notorious element for establishment of a prescriptive easement, the use must be sufficiently obvious to apprise the owner of the servient estate; however, actual knowledge by the owner need not be proved. Unlike a party claiming title to land by adverse possession, a party claiming a prescriptive easement need not be in continuous physical possession of the land because a prescriptive easement is only a right to use the route whenever the holder desires passage. The record supports trial court's determination that plaintiffs' use was open and notorious because defendants knew plaintiffs were entering their property and using the mining road. In addition, the record also supports trial court's determination that plaintiffs crossed defendants' property whenever they wanted to reach their property. Intermittent use on a long-term basis satisfies the requirement for open, notorious, and continuous use. Weisiger v. Harbour, 62 P.3d 1069 (Colo. App. 2002).
 
If a servient owner's use of land is truly adverse--that is, clearly incompatible or irreconcilable with the use of the easement--the trial court may grant relief even in the absence of the need for the right-of-way, demand made by the owner of the dominant tenement, and refusal to comply by the owner of the servient tenement. Proof of dominant estate owner's intent to abandon easement is not required. Abandonment is not an element of termination by prescription. Matoush v. Lovingood, 159
P.3d 741 (Colo. App. 2006).

Reviewing court may reject trial court's finding where conclusions unsupported. Although it is true that whether possession is hostile or adverse is ordinarily a question of fact, and a finding on this issue made by the trial court would normally not be set aside on review, this restraint does not limit the power of the reviewing court to reject a trial court's findings and conclusions where they are not supported by evidence or where the law has not been correctly applied. Niles v. Churchill, 29 Colo. App. 283, 482 P.2d 994 (1971).

Trial court's finding that possession was hostile was supported by declarations in the record, actual use of the parcel by the claimants, and the marking  of  the  supposed  boundary  line  by  iron  pipes.  Smith  v. Hayden, 772 P.2d 47 (Colo. 1989).

There is no requirement in this section that a person be the exclusive payer of taxes on the property in order to comply with the taxpaying provisions of this section. Barnes v. Winford, 833 P.2d 756 (Colo. App.
1991).

38-41-102. How computed.

If such right or title first accrued to an ancestor, predecessor, or grantor of the person who brings the action or to any person from, by, or under whom he claims, the eighteen years shall be computed from the time when the right or title so accrued.

Source: L. 27: p. 599, § 31. CSA: C. 40, § 137. CRS 53: § 118-7-2. C.R.S. 1963: § 118-7-2.

ANNOTATION

Am. Jur.2d. See 51 Am. Jur.2d, Limitation of Actions, §§ 66-68. C.J.S. See 54 C.J.S., Limitations of Actions, § 257.

38-41-103. Evidence of adverse possession.

If the records in the office of the county clerk and recorder of the county wherein the real property is situate show by conveyance or other instrument that the party in possession or his predecessors or grantors, through descent, conveyance, or otherwise, have asserted a continuous claim of ownership to the real  property  adverse to the record  owner thereof for a period of eighteen years, then the record shall be deemed prima facie evidence of adverse possession during said period and compliance with the requirements of sections 38-41-101 and 38-41-102.

Source: L. 27: p. 599, § 32. CSA: C. 40, § 138. CRS 53: § 118-7-3. C.R.S. 1963: § 118-7-3.

ANNOTATION
Am. Jur.2d. See 3 Am. Jur.2d, Adverse Possession, §§ 297-310.
C.J.S. See 2 C.J.S., Adverse Possession, § 280. 
Whether or not possession is adverse is generally a question of fact to be determined by the fact finder. Schoenherr v. Campbell, 172 Colo. 306,
472 P.2d 139 (1970).

Requirement of continuous possession construed. The requirement of continuous possession in order to establish a right-of-way by prescription does  not  mean  that  the  claimant  must  physically  possess  it  every moment of the day, because the nature of the right claimed is the right to passage whenever passage is desired. Gleason v. Phillips, 172 Colo. 66,
470 P.2d 46 (1970); Agric. Ditch & Reservoir Co. v. Gleason, 686 P.2d
802 (Colo. App. 1984), rev'd on other grounds, 723 P.2d 736 (Colo.
1986).

"Mere occupancy" not adverse possession. Where there is insufficient evidence that any of the defendants ever asserted that they owned the subject property until the commencement of this action, the "mere occupancy" of a part of the subject property from time to time does not add up to adverse possession. DeCola v. Bochatey, 161 Colo. 95, 420
P.2d 395 (1966).

The practice of grazing cattle on unfenced land is not of itself sufficient to show adverse possession. Thompson v. Clarks, Inc., 162 Colo. 506,
427 P.2d 314 (1967).

Presumption of adverse possession. Where the evidence is sufficient to establish that the defendants have been in open, notorious, and continuous possession of the easement since 1940, it must be presumed that the possession was adverse. Gleason v. Phillips, 172 Colo. 66, 470
P.2d 46 (1970); Raftopoulos v. Monger, 656 P.2d 1308 (Colo. 1983); Agric. Ditch & Reservoir Co. v. Gleason, 686 P.2d 802 (Colo. App. 1984), rev'd on other grounds, 723 P.2d 736 (Colo. 1986); Smith v. Hayden, 772
P.2d 47 (Colo. 1989).

Every reasonable presumption is made in true owner's favor as against one  who  claims  to  have  acquired  title  through  adverse  possession. DeCola v. Bochatey, 161 Colo. 95, 420 P.2d 395 (1966).

Recognition of record  title strengthens adverse possessor's  claim.  A recognition of record title does not demonstrate an intent not to possess adversely  where  there  is  no  dispute  in  the  evidence  of  adverse possession  of  the disputed  property;  the  very  fact  that  the  plaintiffs recognized that the record title of a portion of the property was not in their names,  enforced and strengthened the claim  of  adverse  possession. Schoenherr v. Campbell, 172 Colo. 306, 472 P.2d 139 (1970).

Adverse possessor has burden of proof when trying to divest the record owner of his lawful title to real property. DeCola v. Bochatey, 161 Colo.
95, 420 P.2d 395 (1966).

Party claiming title by adverse possession has the burden of proving his claim by clear and convincing evidence. Schutten v. Beck, 757 P.2d 1139 (Colo. App. 1988).

Where the extent of the adverse possession is not defined by deed or by physical barriers, the claim is limited to the property actually occupied by the claimant and such occupancy is a question of fact for the trial court to determine. Such occupancy does not require constant, visible occupancy or physical improvement on all parts of the parcel, but rather the ordinary use for which the land is suitable and which an owner of the land would make of it. Similarly, possession need not be absolutely exclusive in order to attain the degree of exclusivity required for adverse possession. Smith v. Hayden, 772 P.2d 47 (Colo. 1989).
 

38-41-104. Time to make an entry or bring an action to recover land.

(1) The right to make an entry or bring an action to recover land shall be deemed to have first accrued at the following times:

(a) When any person is disseised, his right of entry or of action shall be deemed to have accrued at the time of disseisin.

(b) When he  claims as  heir  or  devisee of  one  who died seized or possessed, his right shall be deemed to have accrued at the time of such death, unless there is a tenancy or other estate intervening after the death of such ancestor or devisor, except as provided in section 38-41-
112,  in which case his  right  shall  be  deemed to  accrue  when such intermediate estate expires or when it would have expired by its own limitations.

(c) (I) When there is such an intermediate estate, and in all cases when the party claims by force of any remainder or reversion, his right, insofar as it is affected by the limitation prescribed  in this  section,  shall  be deemed to accrue when the intermediate or precedent estate would have expired by its own limitation, notwithstanding any forfeiture thereof for which he might have entered at an earlier time.

(II) Subparagraph (I) of this paragraph (c) shall not prevent a person from entering when entitled to do so by reason of any forfeiture or breach of condition, but if he claims under such a title, his rights shall be deemed to have accrued when the forfeiture was incurred or the condition was broken.

(d) In all cases not otherwise specifically provided for, the right shall be deemed to have accrued when the claimant or the person under whom he claims first became entitled to the possession of the premises under the title upon which the entry or the action is founded.

Source: L. 27: p. 599, § 33. CSA: C. 40, § 139. CRS 53: § 118-7-4. C.R.S. 1963: § 118-7-4.

ANNOTATION

Am. Jur.2d. See 51 Am. Jur.2d, Limitation of Actions, § 260. C.J.S. See 54 C.J.S., Limitations of Actions, § 257.

Section could be raised as an affirmative defense in an answer to a petition to set aside a decree of determination of heirship on the ground of fraud, but it could not be properly considered on motion to dismiss such petition. Cisneros v. Cisneros, 163 Colo. 245, 430 P.2d 86 (1967).

38-41-105. Abstract of title prima facie evidence.

An abstract of title certified by  any reputable Colorado  abstractor  or abstract company incorporated under the laws of the state of Colorado may be used to establish prima facie evidence that the chain of title is as shown  by  the  abstract,  except  as  to  any  of  the  instruments  of conveyance or record thereof or certified copy thereof which may be offered in evidence, and the court may take judicial notice of the repute of the abstractor. The absence of tax sale certificates from such abstract for any period of time covered by the abstract shall be prima facie evidence of the payment of taxes during such period by the party relying upon any chain of title shown by such abstract. 
Source: L. 27: p. 600, § 34. CSA: C. 40, § 140. CRS 53: § 118-7-5. C.R.S. 1963: § 118-7-5.

ANNOTATION
C.J.S. See 32A C.J.S., Evidence, §§ 1045-1050.

Law  reviews.  For  article,  "Curative Statutes  of  Colorado  Respecting Titles to Real  Estate",  see 16 Dicta 35 (1939). For article, "Curative Statutes of Colorado Respecting Titles to Real Estate", see 26 Dicta 281 (1949). For article, "Evidence in the Proof of Real Estate Titles", see 24
Rocky Mt. L. Rev. 424 (1952). For article, "Abstractors Ride Off Into
Sunset," see 11 Colo. Law. 2585 (1982).

Document tendered not objectionable as proof of lesser status. A document, tendered as proof of title itself and so admitted, is not objectionable  as proof  of  the lesser  status of  color  of  title since  an abstract of title may serve both as color of title and as evidence of title itself. Marr v. Shrader, 142 Colo. 106, 349 P.2d 706 (1960).

Document offered as evidence solely as proof of color of title may not also be invoked as proof of title. Marr v. Shrader, 142 Colo. 106, 349
P.2d 706 (1960).

Introduction of judgment roll as additional proof deemed error. Where defendants offered the abstract of title to show their chain of title, it was error  to  rule  that  the  defendants must  go further and  introduce  into evidence  the  judgment  roll  of  the  cause  in  which  the  decree  was rendered because the abstract of title was prima facie proof of the chain of title shown thereby. Lamberson v. Thomas, 146 Colo. 539, 362 P.2d
180 (1961).

Applied in Hochmuth v. Norton, 90 Colo. 453, 9 P.2d 1060 (1932).

38-41-106. Limitation seven years - possession under official and judicial conveyance or orders.

Actions brought for the recovery of any lands, tenements, or hereditaments which any person may claim by virtue of actual residence, occupancy,   or   possession   for   seven   successive   years   having   a connected title in law or equity, deducible of record, from this state or the United States, or from any public officer or other person authorized by the laws of this state to sell such land for the nonpayment of taxes, or from any sheriff, marshal, or other person authorized to sell such land on execution, or under any order, judgment, or decree of any court of record shall be brought within seven years next after possession has been taken as provided in this section; but when the possessor acquires such title after taking such possession, the limitation shall begin to run from the time of acquiring title.

Source: L. 27: p. 601, § 35. CSA: C. 40, § 141. CRS 53: § 118-7-6. C.R.S. 1963: § 118-7-6.

ANNOTATION

C.J.S. See 54 C.J.S., Limitations of Actions, § 257.

Law reviews. For note, "Adverse Possession in Colorado", see 27 Rocky
Mt. L. Rev. 88 (1954). For article, "One Year Review of Property", see 35
Dicta 48 (1958).

Limitation begins when deed placed in record. The seven-year statute of limitations does not begin to run until a deed upon which a party in
 
possession relies as being sufficient to give him color of title has been placed of record. Poage v. Rollins & Son, 24 Colo. App. 537, 135 P. 990 (1913); Fallon v. Davidson, 137 Colo. 48, 320 P.2d 976 (1958).

When actual ouster of cotenants established. Until an actual ouster of any cotenants has been established by conduct, apart from mere use and occupation of the land by a party, this section giving rise to a claim of adverse possession does not begin to run. Fallon v. Davidson, 137 Colo.
48, 320 P.2d 976 (1958).

Void deed sufficient to set limitation into motion. A deed void upon its face is sufficient color of title to set in motion the seven-year limitation. Silford v. Stratton, 54 Colo. 248, 130 P. 327 (1913).

Void  deed  is  not  conclusive  of  good  faith  of  the  party  claiming thereunder. Silford v. Stratton, 54 Colo. 248, 130 P. 327 (1913).

Defenses involve questions of law and fact. The defenses of the statute of limitations and the statute of frauds both involve questions of fact as well as law. Bushner v. Bushner, 134 Colo. 509, 307 P.2d 204 (1957).

Equitable defenses not invoked where statute of limitations applicable. The defense of laches is not available in a quiet title action because courts will not invoke equitable defenses to destroy legal rights where statutes of limitations are applicable. Jacobs v. Perry, 135 Colo. 550, 313
P.2d 1008 (1957).

When mineral estate is severed from the surface estate, actual adverse possession of mineral estate must be established separate from any possession of the surface estate. Kriss v. Mineral Rights, Inc., 911 P.2d
711 (Colo. App. 1996).

Applied in Callbreath v. Hug, 50 Colo. 95, 114 P. 298 (1911); Empire
Ranch & Cattle Co. v. Weldon, 26 Colo. App. 111, 141 P. 138 (1914).

38-41-107. Rights of heirs.

The heirs, devisees, and assigns of the person having such title and possession shall have the same benefit of sections 38-41-101 to 38-41-
106 as the person from whom the possession is derived.

Source: L. 27: p. 601, § 36. CSA: C. 40, § 142. CRS 53: § 118-7-7. C.R.S. 1963: § 118-7-7.
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