Opinion
July 23, 1974.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 476
Yegge, Hall & Evans, David R. Brougham, Denver, for plaintiffs-appellants.
Nicholas Magill, Steamboat Springs, for defendants-appellees.
ENOCH, Judge.
This case originated as an unlawful detainer action filed by plaintiffs against the Mores, seeking to evict them from a 1.53 acre parcel of land. Defendants counterclaimed, alleging that they were owners of the property by virtue of adverse possession for a period of 70 years, and requested that title to the disputed property be quieted in them. The trial court, sitting without a jury, found in favor of defendants, and plaintiffs appeal. We affirm.
The parties stipulated that plaintiffs are record owners of the disputed tract, which was originally part of a large ranch owned by plaintiffs' predecessors in title, the McWilliams family. In 1903 a portion of this ranch was conveyed to Lena Yock, who later conveyed her interest to Martin Yock, defendants' immediate predecessor in title.
The disputed property consists of the area between the true western boundary of the property conveyed to the Yocks and a fence erected at the time of conveyance in 1903, which is located slightly to the west of the actual boundary line. Plaintiffs' land lies to the west of defendants' property.
The sole witness at the trial was Martin Yock, who testified concerning the circumstances of the original grant and building of the fence in 1903. Mr. Yock testified that at the time of conveyance, Mr. McWilliams sighted a line running roughly from the northern boundary of the property to a road bisecting the property in a northeasterly direction, and instructed Mr. Yock's father to build a fence along this line. According to Mr. Yock's testimony, McWilliams' words were, 'Go to the round corral and right up the road and you will have the west end of your ranch fenced.' The fence was immediately constructed and has been maintained in that location for 70 years. Mr. Yock testified that he and his family openly and continuously occupied the disputed tract with the belief that the property was theirs.
Plaintiffs' primary contention is that, because the fence was erected at the direction of the grantor, the Yock's possession of the property was 'permissive' at its inception, and therefore defendants were required to prove notice to the holder of legal title that possession had become hostile. Plaintiffs cite Lovejoy v. School District No. 46, 129 Colo. 306, 269 P.2d 1067, and Cox v. Godec, 107 Colo. 69, 108 P.2d 876, for this proposition.
We do not agree that the evidence in this case establishes permissive entry as a matter of law. The mere fact that plaintiffs' predecessor in title directed that the fence be placed in a particular location did not require the trial court to find that the original entry was permissive. An equally permissible inference, which is buttressed by the grantor's statement that the fence would mark the western boundary of the land he was conveying, is that the fence was intended by the parties as the boundary between their respective properties. See Riggs v. McMurtry, 157 Colo. 33, 400 P.2d 916; Lively v. Wick, 122 Colo. 156, 221 P.2d 374. Therefore, there is evidence to support the trial court's finding that the original entry of defendants' predecessor in title was 'hostile,' rather than permissive, for purposes of determining adverse possession.
Language in Cox v. Godec, Supra, indicates that where original entry on the land resulted from a mistake as to the boundary, and the possessor intended to claim only to the true line, the entry will be deemed to have been permissive. However, several later decisions have overruled this rule of law. Anderson v. Cold Spring Tungsten, Inc., 170 Colo. 7, 458 P.2d 756; Vade v. Sickler, 118 Colo. 236, 195 P.2d 390; Niles v. Churchill, 29 Colo.App. 283, 482 P.2d 994. In referring to the permissive entry rule which was enunciated in Cox, supra, the court stated in Vade, quoting from Edie v. Coleman, 235 Mo.App. 1289, 141 S.W.2d 238, that if this theory were followed, 'the protection of the statute would be limited to those who deliberately set out to steal neighbor's property . . ..' Thus, 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 the possessor. Anderson, supra.
Plaintiffs' second argument is that defendants failed to sustain their burden of proof with respect to each of the elements of adverse possession. We do not agree. It is true, as contended by plaintiffs, that an initial presumption favors the record title holder as against the adverse possession claimant. DeCola v. Bochatey, 161 Colo. 95, 420 P.2d 395; Lovejoy v. School District No. 46, Supra; Cox v. Godec, Supra. However, this presumption merely allocates the burden of production of evidence in a case of this nature. Where, as here, the suit is initiated by the record title holder, the holder of legal title has established a prima facie case upon proving the fact of record title alone, and the party claiming by adverse possession must then prove his case.
Of course, claimants seeking to establish title to land by adverse possession have the burden of proving their claim. DeCola v. Bochatey, Supra. That is, they must initially present evidence tending to prove that their possession was hostile, open, notorious, exclusive, under a claim of right and continuous for the statutory period and, in addition, they bear the burden of persuasion. See American Insurance Co. v. Naylor, 101 Colo. 34, 70 P.2d 349. The core issue here is how much evidence the adverse possessor must present in order to establish each of the elements of his claim. Where the original entry is not permissive, the claimant need prove only exclusive and continuous possession of the property for 18 years. Such a showing creates a presumption that the possession was adverse. Hodge v. Terrill, 123 Colo. 196, 228 P.2d 984; Lively v. Wick, Supra; Vade v. Sickler, Supra; Niles v. Churchill, Supra. This presumption, until rebutted, is sufficient under 1967 Perm.Supp., C.R.S.1963, 118--7--1, to entitle the adverse claimant to legal title to the land. The burden of producing evidence tending to disprove the adverse possessor's claim then shifts to holder of legal title.
In this case, defendants presented sufficient evidence to give rise to the presumption that their possession of the disputed tract was adverse for a period exceeding 18 years. Plaintiffs did not meet their burden of producing evidence to show the contrary. Thus, defendants claim of adverse possession was established.
The judgment of the trial court is affirmed.
SILVERSTEIN, C.J. and RULAND, J., concur.