Judge given 2nd chance at land-grab case (Boulder,CO)

WorldNetDaily ^ | April 03, 2008

[rawhide]

A Colorado district court judge who awarded part of a million-dollar residential land parcel to a retired judge and his wife under the state's little-used "adverse possession" law will have an opportunity to review his original decision.

The Colorado Court of Appeals has agreed to send the controversial case that benefited retired judge Richard McLean and his wife, Edith Stevens, back to Boulder County District Judge James Klein, who made the original decision, according to a report in the Boulder Daily Camera.

The couple who lost the property, Don and Susie Kirlin, had asked the appellate court to return the case to Klein to allow him to review a motion to overturn his own verdict because of additional evidence.

The newspaper reported that the Kirlins have uncovered new eyewitnesses, as well as some aerial photos, documenting their contention that McLean and Stevens "conspired to 'willfully fabricate' a path on the Kirlins' undeveloped property in a pricy Boulder neighborhood.

That path was a key piece of evidence in the original decision, which granted the retired judge and his wife about one-third of the Kirlins' residential lot essentially because they alleged they had used the property for a long period of time

[rawhide]

Look at these aerial photos and you can see the path in the 2007 photo, but not in the earlier photo:

Note that the Stevens claim the path goes to their backyard (2059 Hardscrabble Drive is their property, in blue), and it clearly does not...and is not even present in this 2006 aerial from the Boulder County website (note that the yellow circle is a bit to the east of where the path should be--it was drawn to illustrate that the path is on the opposite side of the property from the Stevens property. (credit for this note and these photos goes to FReeper 'Gondring', from an earlier thread on this subject. http://www.freerepublic.com/focus/f-news/1970715/posts)

[Darren McCarty]

Adverse posession...this case is a legal beagle’s dream.

[Alex Murphy]

A Colorado district court judge who awarded part of a million-dollar residential land parcel to a retired judge and his wife under the state's little-used "adverse possession" law will have an opportunity to review his original decision.

He should be given an opportunity to collect unemployment, if you ask me.

[dynachrome]

ping

[Farmer Dean]

This case proves the old saying about fences and neighbors.

[F-117A]

There are two paths in the 2007 video. The obvious one is the straight line. There is a second one near the green bushes next to the driveway.

I hope McLean and Stevens do jail time.

[colorado tanker]

Wow! This is a rarely used legal procedure. The Court of Appeals must smell a rat here.

[jazusamo]

I would be nice if McLean and Stevens got some time in the gray bar hotel for this but it’ll never happen.

[Liberals are Evil Socialists!]

The path is actually closer to the trees/bushes on the right. That big line in the middle is a subdivision marker between two lots. There is nothing behind this house. Don’t rush to judgment about the judge. This could be entirely legit. Look for yourself on google map for this property.

[george76]

a witness had surfaced who reported seeing a woman who looked like Edie Stevens “tromping, stomping and kicking the ground, causing vegetation and dirt to rise from the ground in the area where the dirt path … later appeared.”

That statement comes from neighbor Josephine Touchton, whose affidavit, along with other photographic and sworn evidence, was submitted by the Kirlins.

[george76]

a statement from a surveyor hired by McLean and Stevens who wrote in an affidavit he felt pressured to include a pathway on a survey of the Kirlins’ property when he never saw such a path.

[jazusamo]

I’m basing my comment on information from previous threads on this. IMO this ruling was a good ole boy thing based on an archaic law and this couple took advantage of the situation.

[agrace]

Someone help me out here, please. I went and read the whole WND article. Am I correct in interpreting that there is a law (in Boulder at least) which allows a private citizen to be granted another private citizen’s property simply because they’ve been using it for a long time?

Why isn’t this just called TRESPASSING?!

How could anyone with good conscience actually put a suit like this into motion? Can anyone give me a legitimate scenario for this?

How absurd. I guess I own half a dozen different plots in Central PA, along with a few kids I ran around the neighborhood with in the 70s just because our keds and/or bikes beat a path here and there.

[Bob]

a statement from a surveyor hired by McLean and Stevens who wrote in an affidavit he felt pressured to include a pathway on a survey of the Kirlins’ property when he never saw such a path.

IANAL. Doesn't a survey constitute a legal document which, I'd think, would carry a perjury penalty for falsifying? If this surveyor included a pathway that he never saw, wouldn't that open him up to perjury and conspiracy charges?

[george76]

I do not know if the surveyor added a path even after being pressured by McLean and Stevens . That might : “ open him up to perjury and conspiracy charges?”

Still : a two year path is not enough.

[Liberals are Evil Socialists!]

The real point is you do not even need a PATH to claim adverse possession. Here are the elements under Colorado law:

The elements of a claim of adverse possession are use of property that is actual, adverse, hostile, under claim of right, exclusive, and uninterrupted for the statutory period. Salazar v. Terry, 911 P.2d 1086 (Colo. 1996). In Colorado, eighteen years of adverse possession is conclusive evidence of absolute ownership. Section 38-41-101, C.R.S. 2000.
To interrupt an otherwise valid adverse possession claim before the statutory period has run, the true owner must assert a claim to the land or perform an act that would reinstate the owner’s possession. See Bushey v. Seven Lakes Reservoir Co., 37 Colo. App. 106, 545 P.2d 158 (1975).

Therefore, all you have to do is show the above elements and the land can be claimed. All the owner had to do was one simple thing or act of ownership in 18 years that would demonstrate they truly owned and prevented the other side from using: like post a sign or a fence or anything. This vacant land that backs onto no other properties was up for grabs and the title owners should have done something. The law is clear on the books. Ignorance of the law is no excuse.

I saw don’t rush to judgment on this retired judge. The people screaming the loudest may just also be at fault for losing their rights in the face of clearly pre-existing STATUTORY law.

[Sacajaweau]

It opens him up to disciplinary action...but I think there's more to his "affidavit" than is being told. Have a lot of buddies in the business. Don't know a single one who would even THINK of favoring one owner over another. Let's wait and see.

A survey is NOT a legal document. It is "evidence" of ownership.

[Sacajaweau]

Adverse possession is as valid today as when it was first put on the books....squatters rights go way back...

[Doctor Don]

If the Kirlins paid taxes on the property.......end of discussion!

[shhrubbery!]

The real point is you do not even need a PATH to claim adverse possession...

I saw don’t rush to judgment on this retired judge. The people screaming the loudest may just also be at fault for losing their rights in the face of clearly pre-existing STATUTORY law.

You are right.

The plaintiffs here are either stupid or have a stupid lawyer for allowing them to waste more time and money here. They have no case.

The plaintiffs' "new evidence" of a "conspiracy" to create a path only helps the defendants -- because it is even more evidence that the defendants' actions were "adverse" !

But I've given up trying to explain adverse possession on this forum. My previous posts on this case were met with utter confusion and derision, because most people simply don't understand the concepts that form the basis of this law.

For most people, understandably, adverse possession seems unjust on its face, although it is based on centuries-old Anglo-American common law and can be used justly.