Posted on 11/22/2007 12:09:13 PM PST by Sue Bob
BOULDER -- The "adverse possession" case through which retired Boulder judge Richard McLean was able to grab a swath of land on a neighbor's vacant lot triggering cries of protest by people who don't know any parties involved is not the first time a former Boulder judge has used the law against a neighbor.
Former Boulder County Judge Marsha Yeager, whose tenure on the Boulder County bench overlapped that of McLean, filed a successful "adverse possession" case against her neighbor in 2002.
--snip--
In Yeager's case, she filed suit against the family of Cosima Krueger-Cunningham, to settle ownership of a one-foot high, one-foot wide stone wall dividing their two Boulder residences.
Yeager, her spouse is a lawyer, just as is the case with McLean, lives at 963 7th Street, while Krueger-Cunningham live at 977 7th Street.
"My family has lived here since 1950, so that's what, 57 years," said Krueger-Cunningham, who grew up at 977 7th St.
"We have a long history with that wall. I have many childhood memories with that wall, of playing on the wall with my friends. My parents always assumed it was their wall. "It's been a nightmare."
When she heard that Yeager was using something called "adverse possession" to claim ownership of t he wall and thereby move the property line dividing their properties roughly one foot in Krueger-Cunningham's direction, she said, "I didn't really understand what it was all about."
--snip--
It was intimidating, said Krueger-Cunningham, to be sued by a former judge - one who is married to a lawyer, no less.
"I feel that she was at a distinct advantage, in that she had been on the bench for I don't know how many years. She obviously, you know, was well known to people in the judicial system."
(Excerpt) Read more at myfoxcolorado.com ...
Yah. Judges.
Can’t the judge be impeached?
The lawyers and judges here are using little known laws to take land from honest citizens that don’t even know their land ownership is at risk.
The moral of this story is that if you have a lawyer or judge living next door, and you live in Boulder, either run the scum off, or move.
Yep. Happy Thanksgiving, Sionnsar!
“Something is rotten in Boulder.”
The whole ultra liberal city is rotten!
So, if I trim my grass on my property beside a neighbor’s fence—or fix a few rocks on my side, I can claim that his entire fence is mine? I’d like to know more about the evidence in this case. I’m not sure how a non-owner can prove notorious (including exclusive), hostile and continuous use of a rock wall which serves as a dividing line between properties. The public policy behind adverse possession is to ensure efficient use of land. I don’t understand how an ancient wall fits in here.
Also, given modern platting, how could a judge—who surely knows about official surveys, “mistake” the wall as hers? And, once finding out she’s wrong, what is the moral caliber of a Judge who grabs land under the law from her neighbor. In Zimbabwe, Mugabe utilizes the courts to grab land from white farmers. Just because it may be legal, doesn’t make it moral.
Regardless, it is unseemly in the least for a sitting judge to get involved in such a land grab when there surely existed objective evidence of property lines. Subjecting her neighbor to a process dominated by the judge’s own colleagues gives all sorts of appearances of impropriety.
what did he do to actually adversely posess the wall?
That’s what I can’t figure out from the story. How do you adversely possess a dividing wall between property?
what they should have done was to claim that they gave the judge permission to use the wall. However this case looks to me like one judge ruling for another judge rather than being decided on the merits. the way the facts look to me there is no possible way that the party that lost could have actually discovered the adverse possession.
And a Happy Thanksgiving to you too!
And they’ll keep it up until the costs outweigh the benefits.
I would be tempted to retaliate. Start trespassing, littering, spraying graffiti on the wall, walking the dog on the land, etc. Assert one’s own “adverse possession.” Of course, it would doubtless turn out that we peons can’t get away with what a judge can.
And the judges deny justice to their victims...
It's not just outright loss of ownership, either. If you allow someone to walk or drive across your land, after umpteen years they acquire a legal right of way there.
I won’t pretend to know the legalities or the details of this case
but I hope judges across America start to feel the heat of the ridiculous mess they have made of our Constitution
Just guessing, but I wonder if this doctrine didn’t arise in common law to keep peasants (e.g.) from being evicted from hovels they had inhabited for ages on a corner of some lord’s estate. If so, its intent is being flouted, because now it is our elites who are using this trick to seize “peasants’” land.
I know the elements as I am a lawyer and studied it too. The use has to be notorious, hostile and continuous—so it is very fact driven. I just can’t imagine how cutting grass next to a wall dividing your property and such could be notorious—or could exclude the owner(a subset of the element, notorious). Moreover, if the owner cut the grass on their side of the wall and did anything at all to the wall, it would be joint possession which would defeat the adverse possession.
Also, as a lawyer, I know how often people lie in court and how presiding judges are not necessarily paragons of virtue or intelligence. This judge’s Judge buddies heard the case. Red flags go up for me.
the Peoples Republic of Boulder
What better reason to be a judge than to abuse the peons?
This case, like the other one, is not even a legitimate adverse possession case. For her to make an adverse case, she would have to have proven that she had built the wall on the neighbor’s land, and defended it “openly” and “notoriously,” and had paid the taxes on the land and the wall for at least five years. Those findings are not noted.
I can’t see the picture you posted.
Squatter’s rights do not create ownership of the fee; they are only a vehicle toward a prescriptive easement of surface rights. That’s not what adverse possession is about. Because of the tax being paid by the advewrse occupant, the fee is what is under attack.
Apparently, in Colorado, who pays the taxes is not relevant. The other couple mentioned in the article lost 1/3rd of their lot upon which they paid $16,000 per year plus HOA dues.
I don’t understand in this case how you use a wall openly and notoriously to the exclusion of its owner. The purpose of the wall was to mark the boundary. The owner’s were using it in that manner. How did the landgrabber trump that?
I can’t either, now that I posted it. I’m not sure what went wrong. It’s a picture of a US soldier guarding a wall.
The state attorney general needs to step in and get involved here. Soemthing is rotten in Boulder.
The story is terribly written. How did Yeager actually take possession of the wall for 18+ years? And doesn’t a single use by Krueger-Cunningham nullify any period of use by Yeager?
That’s not a big deal. Down here in Comanche county TX, we have a County Judge who takes possession of elderly senile couples property and sells it for his personal benefit.
Small county and you can’t touch the thief.
There should be a law against this, and there is. But those who enforce the laws also know how to profit from selective/creative enforcement.
That is absolutely horrible. Is he a probate judge or the County Judge re County Commissioners?
I agree. And, how do you use a wall for other than its intended purpose—to give notice of the property line and/or to contain animals, give privacy, etc.. After all, you don’t build on or grow crops on a wall!
The owners were using the wall—as a wall!
Okay, I just found a comment posted at The Daily Camera by the husband of the woman who lost the wall.
http://dailycamera.com/news/2007/nov/22/adverse-possession-officials-work-on-land-law/
Posted by cardamomseed on November 22, 2007 at 3:21 p.m. (Suggest removal)
As the husband of the landowner on the MyFox piece mentioned above, I am skeptical of the “fix” for this law proposed by Tupa and Witwer, at least as it was described in the article. How is the land owner protected better from the AP claimant by allowing te claimant to use “well, I thought it was my land” as evidence of anything? Has Jiminny Cricket become the source of lawcrafting around here? In our case, the claimant said exactly that and proferred an erroneous Improvement Location Certificate as evidence that our deeded and staked property was hers! Of course, the claimant also said they had used our property in other ways that they could not document except by their sworn testimony. Since the adverse possession law supposedly assumes that the claiment has the burden of evidence, not the property owner of record, we can only assume from our case and that of the Kirlans that the quality of evidence that can be accepted is too lax. We have pointed out before that the present standard is “preponderance of evidence”, but it used to be “clear and convincing evidence.” Some years ago the Colorado Supreme Court changed that standard. Can the original be re-established? Our belief is that the stricter standard might have raised the bar enough to shoot down both claims. Have Tupa and Witwer considered that approach?
Kirk Cunningham
County Judge
Like most Texas small county judges, his ruling is the final word. All practicing attorneys in HIS county have to abide and tow the line. It’s near impossible to break with his version of justice.
So, does he handle probate matters? Is that how he gets his claws into these people’s land?
He handles all types of cases in HIS county.
This makes me sick. Do the families try to fight this—or are they prevented from doing so because they can’t get representation?
I saw that happen in a rural Iowa community a few years ago. A well known and liked doctor bought an old farm. He spent a lot of his off time there fixing and repairing and planned to build a house on it someday.
He had a neighbor that had an old trailer and some junk on a tiny piece of ground next to him and one day the neighbor fenced off a small plot of the doctor’s land and put a couple of goats on it.
The good doctor took pity on the family and let is slide and a few years later the neighbor claimed the land in court and got it. The doctor told me that if he had charged a dollar a year rent he would have legally retained ownership.
This stone fence grab however looks to me like it was bogus. Both neighbors should have had pretty much equal use of a rock fence.
I saw the issue decided the other way once, when a wire line fence was known to be only approximately on the property line. The neighbor claimed the fence and a hundred or so feet beyond. They surveyed and went to court and the survey ruled. The fence was as much as 50 feet off the surveyed property line in places.
In that case the neighbor land grabber lost and they built the new fence as much as 50 feet back into his corn field.
Taking a one foot wide land grab to court is pathetic.
“Taking a one foot wide land grab to court is pathetic.”
Yeah, but I guess that if you are a District Judge and you know that a fellow judge is going to be deciding your case, you may think it’s just a piece of cake!
I'm sure he can. He should also be disbarred.
The problem with the other case, from what I can tell, is that adverse possession should never have been found in the first place.
I found an article earlier today about the stone fence. According to the property owner, the judge had erected a steel fence between her property and the wall prior to bringing the action, so I don’t think that it was a good application of the law, assuming that happened. That would be an admission that the judge knew that the stone wall was not hers.
http://www.denverpost.com/keefe/ci_7557747
The problem here isn't the law, but the judges applying it.
Well, he will die someday, and then he'll face a real judge who by the looks of things, won't go so easy on him.
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