Opinion
Rehearing Denied Oct. 8, 1974.
Page 258
Traylor, Palo & Cowan, Charles J. Traylor, Gary R. Cowan, Grand Junction, for petitioners-appellees.
Clayton D. Tipping, Grand Junction, for respondent-appellant.
SMITH, Judge.
Henry W. Antholz and Leona B. Antholz petitioned the trial court, pursuant to C.R.S.1963, 118--11--1, to ascertain and permanently establish the boundary with their neighbor, James F. Squirrell (respondent). Petitioners alleged that two fences built by the respective predecessors in title were and should be decreed to be the legal boundary between the parties' ranches. Respondent sought in his counter-petition to have a decree entered based upon the descriptions contained in the recorded deeds and asked that petitioners be required to pay one-half the cost of constructing a fence on the boundary so decreed. The trial court concluded that the correct boundary line was that upon which the fences were erected and entered its decree accordingly.
The sole issue on appeal is the correctness of the trial court's conclusion. We affirm.
The facts, as found by the trial court, are briefly as follows: Petitioners' predecessors in title, as material herein, were H. H. Miles and his son T. Bryan Miles. Respondent's predecessors in title were Eva Fitzpatrick and Don Squirrell, respondent's father. In 1944, Fitzpatrick agreed with H. H. Miles that a fence should be built between their two ranches. This fence, when completed in that year, was considered by both of the owners as the boundary between the ranches, even though it departed from the legal descriptions shown on their respective deeds. Two small portions of this fence were relocated by T. Bryan Miles in the early 1950's. Don Squirrell, who had purchased his property from Fitzpatrick, knew of these relocations and made no objection to the relocation. A second fence, along a previously unfenced portion of the boundary, was built in 1951 by Don Squirrell and T. Bryan Miles and was accepted by both parties as their common boundary. Petitioners have, at all times since they acquired the property from T. Bryan Miles, claimed ownership of land to the fence line.
Respondent asserts that these findings of fact are not supported in the record. Upon examination of the record, we find that there is ample evidence to support the findings made by the court and they will therefore, not be disturbed upon review. Briano v. Rubio, 141 Colo. 264, 347 P.2d 497.
The respondent argues that there was no 'hostile entry' by the petitioners or their predecessors in title so as to support a claim of adverse possession as required by 1967 Perm.Supp., C.R.S.1963, 118--7--1. 'Hostile entry' only helps determine the date of the commencement of the running of time under the statute. This date had to be determined if petitioners were to be permitted to 'tack,' or add their predecessors time in possession, to their own, for the purpose of demonstrating that the statutory period had expired. To prove hostile entry it is necessary to show only that the possessor occupied the disputed property with the belief that it was owned by him. Anderson v. Cold Spring Tungsten, Inc., 170 Colo. 7, 458 P.2d 756; Niles v. Churchill, 29 Colo.App. 283, 482 P.2d 994. Because the court found that both of these fences were initially constructed as a boundary by the respective predecessors in title, and that both parties believed that they were possessing their own land, the above requirement was met by construction of the fences. The date of construction determined the date on which the running of the statute commenced.
Therefore, because of the fence constructed in 1944, the petitioners and their predecessors in title have been, since that time, in open, notorious, continuous and adverse possession of the disputed property adjacent thereto. Since this suit was commenced in 1970, both the twenty-year period for recognition and acquiescence in a boundary established by C.R.S.1963, 118--11--3, and the eighteen-year period of adverse possession required by 1967 Perm.Supp., C.R.S.1963, 118--7--1, have run.
The fence constructed in 1951 was likewise an agreed boundary fence, and petitioners and their predecessors in title have been in open, notorious, continuous and adverse possession of the adjacent property since that time. Although as to that property C.R.S.1963, 118--11--3, does not confirm petitioners' title on the basis of an agreed boundary, the eighteen-year adverse possession statute, 1967 Perm.Supp., C.R.S.1963, 118--7--1, has run. The trial court therefore correctly confirmed petitioners' 1951 fence line.
Judgment affirmed.
COYTE and PIERCE, JJ., concur.