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38-41-101. Limitation of eighteen years.

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(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 owners 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 owners 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 reimbursable 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 courts discretion, and any such statement shall bind the defendant in the action.

History

History.
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.

Annotations

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, andUninterrupted Possession.

III. PLEADING AND PRACTICE.

I. GENERAL CONSIDERATION.

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). For article, Adverse Possession after House Bill 1148, see 37 Colo. Law. 73 (Nov. 2008). For article An Overview of Colorado Easement Law From Creation to Termination, see 49 Colo. Law. 47 (Aug.-Sept. 2020).

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. Commn, 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. Fisher v. Hervey, 6 Colo. 16 (1881); Edelstein v. Carlile, 33 Colo. 54, 78 P. 680 (1904).

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. Pship, 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).

Owners 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 Commrs, 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); Beaver Creek Ranch v. Gordman Leverich Ltd., 226 P.3d 1155 (Colo. App. 2009) (decided under law in effect prior to 2008 amendment); Hunter v. Mansell, 240 P.3d 469 (Colo. App. 2010); Westpac Aspen v. Residences at Little Nell, 284 P.3d 131 (Colo. App. 2011).

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).

Adverse possession cannot result in the possessor having a greater property interest than the dispossessed owner enjoyed. Consequently, the right of ownership to a condominium parking space obtained through adverse possession was not fee simple ownership but was limited by the alienability restrictions included in the condominiums declaration. B.B. & C. Pship v. Edelweiss Condo. Assn, 218 P.3d 310 (Colo. 2009).

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 owners 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 owners 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).

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).

This section applies to an action seeking to terminate an easement by adverse possession because the statute plainly states that it applies to any real property interest and because the statute does not distinguish between possessory interests such as title to land and non-possessory interests such as title to an easement. Matoush v. Lovingood, 177 P.3d 1262 (Colo. 2008).

An easement will be terminated by adverse possession upon a showing that use of the easement area was: (1) adverse to the easement holders right to use the easement; (2) open or notorious; and (3) continuous without effective interruption for the statutorily mandated period of time. Matoush v. Lovingood, 177 P.3d 1262 (Colo. 2008).

Abandonment is not an element of a claim to terminate an easement by adverse possession, but rather is a separate and distinct method for terminating an easement. Matoush v. Lovingood, 177 P.3d 1262 (Colo. 2008).

A claim to terminate an easement by adverse possession requires a stronger showing of adverse use than a claim to create an easement by adverse possession does. A party claiming to have terminated an easement by adverse possession must prove that the use interferes significantly enough with the easement owners enjoyment of the easement to give notice that the easement is under threat. Matoush v. Lovingood, 177 P.3d 1262 (Colo. 2008).

Determining whether use of the easement area is an incompatible or irreconcilable use sufficiently adverse to trigger the statutorily mandated period of time for adverse possession of an easement depends upon whether the easement was expressly created and whether the easement has ever been used by the easement holder. Matoush v. Lovingood, 177 P.3d 1262 (Colo. 2008).

When an easement is expressly created but never used, use of the easement area is not adverse and will not trigger the statutorily mandated period of time for adverse possession until the easement holder needs to use the easement, demands to use it, and is denied the right to use it. Matoush v. Lovingood, 177 P.3d 1262 (Colo. 2008).

Adverse possessors 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 claimants 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 statutes 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 treasurers deed creates virgin title. The issuance of a valid treasurers 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).

Putative adverse possessor has interest in property enforceable against all other parties, except the true owner. This interest gives the possessor the right to exclude the other parties from the property. Lensky v. DiDomenico, 2016 COA 89, 409 P.3d 457.

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. N. 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 Commrs 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).

To show actual possession, a party claiming adverse possession of a water right must show actual beneficial use of a specific quantity of water; merely intercepting the water or preventing the owner from using it does not suffice. Archuleta v. Gomez, 200 P.3d 333 (Colo. 2009).

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 Natl 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 Natl Bank v. Fitzpatrick, 624 P.2d 927 (Colo. App. 1981).

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 Commrs 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 Commrs 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).

A claim to terminate an easement by adverse possession requires a stronger showing of adverse use than a claim to create an easement by adverse possession does. A party claiming to have terminated an easement by adverse possession must prove that the use interferes significantly enough with the easement owners enjoyment of the easement to give notice that the easement is under threat. Matoush v. Lovingood, 177 P.3d 1262 (Colo. 2008).

Determining whether use of the easement area is an incompatible or irreconcilable use sufficiently adverse to trigger the statutorily mandated period of time for adverse possession of an easement depends upon whether the easement was expressly created and whether the easement has ever been used by the easement holder. Matoush v. Lovingood, 177 P.3d 1262 (Colo. 2008).

When an easement is expressly created but never used, use of the easement area is not adverse and will not trigger the statutorily mandated period of time for adverse possession until the easement holder needs to use the easement, demands to use it, and is denied the right to use it. Matoush v. Lovingood, 177 P.3d 1262 (Colo. 2008).

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 defendants 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).

To maintain adversity, use cannot be with permission during the prescriptive period. Hunter v. Mansell, 240 P.3d 469 (Colo. App. 2010).

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 neighbors 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. OBrien, 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 Commrs 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 anothers. 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. OBrien, 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. OBrien, 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 owners title. Segelke v. Atkins, 144 Colo. 558, 357 P.2d 636 (1960).

Disclaimer of intent to adversely possess property terminates adverse possession only if made before statutory period for adverse possession has expired. Once the statutory period has expired, ownership vests in the adverse possessor and can be transferred only by deed. Hunter v. Mansell, 240 P.3d 469 (Colo. App. 2010).

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 plaintiffs 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 plaintiffs 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. N. 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 owners 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).

Countys 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 Commrs 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 anothers 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 partys use and possession of the property rent-free. Atchison, T. amp; S.F. Ry. v. N. Colo. Springs Land & Imp. Co., 659 P.2d 702 (Colo. App. 1982).

Adverse possession not found. Plaintiffs 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).

Mandatory injunction preferred remedy for continuing trespass. When an improvement encroaches on anothers real property, a mandatory injunction requiring its removal is the traditional and preferred remedy. Hunter v. Mansell, 240 P.3d 469 (Colo. App. 2010).

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. Chivington v. Colo. Springs. Co., 9 Colo. 597, 14 P. 212 (1886); Connell v. Clifford, 39 Colo. 121, 88 P. 850 (1907).

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).

Plaintiffs 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 plaintiffs action. Bd. of County Commrs 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).

Adverse possession is not a defense to the crimes of theft or offering a false instrument for recording. People v. Bruno, 2014 COA 158, 342 P.3d 587.

Criminal conduct not permitted under this section and therefore does not satisfy a mistake of law defense. People v. Bruno, 2014 COA 158, 342 P.3d 587; People v. Gutierrez-Vite, 2014 COA 159, 411 P.3d 119.

Whether possession is hostile or adverse is ordinarily a question of fact. Moss v. OBrien, 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 Commrs 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 courts 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 courts 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 courts 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 courts 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).

Reviewing court may reject trial courts 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 courts 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 courts 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).