Opinion
June 6, 1972.
Editorial Note:
This case has been marked 'not for publication' by the court.
Cole, Hecox, Tolley, Edwards & Hero, Colorado Springs, for plaintiff-appellant.
No. appearance for defendants-appellee.
ENOCH, Judge.
This action arose out of a boundary dispute. Plaintiff-appellant was granted all relief requested except as to costs relative to a certain survey. The only issue raised by plaintiff relates to the assessment of said costs. Defendant-appellee did not enter his appearance in this appeal.
Plaintiff had had his land surveyed by one Eldon Thaete. The dispute developed when plaintiff started to erect a fence along his property line common to defendant's property. This line had been determined by the Thaete survey. Defendant disagreed with the Thaete survey and hired a Mr. Conrad to check its accuracy. After suit was filed, the court appointed a commission to determine the correct boundary between the properties. The plaintiff then employed the firm of Kareich and Weber, Inc., to do another survey of his property. This survey was not requested by the commission nor approved by the court and was apparently obtained without defendant's consent. Eventually, plaintiff and defendant were able to agree on the property lines, as established by the Kareich and Weber survey, and a stipulation to that effect was filed with the court. This stipulation further provided that the only matters left for determination by the court were the plaintiff's claim for damages and the allocation of costs incurred by the parties.
At the conclusion of the trial, judgment was entered for the plaintiff and the court ordered that the cost of the Thaete survey be divided equally between plaintiff and defendant, that plaintiff pay for the Kareich and Weber survey and that defendant pay for the survey work done by Conrad.
Plaintiff alleges that the trial court 'apparently became confused' and erroneously awarded plaintiff one-half of the cost of the Thaete survey instead of awarding plaintiff the cost of the Kareich and Weber survey. The findings of the trial court indicate quite clearly that there was no confusion on the part of the court in awarding costs. The court made separate findings as to each of the three surveys and stated reasons, which are supported by the evidence, for allocating the cost of the Kareich survey to the plaintiff and the cost of the Conrad survey to the defendant. The court, in its findings, stated, inter alia:
'. . . The parties did not take any cooperative steps to establish the common boundary between their lands; that the Plaintiff went ahead and ordered another survey to be done by Kareich & Weber without consulting the Defendant and the Defendant should not be liable for any of the costs for this survey.'
C.R.S.1963, 118--11--11, provides that the costs in a boundary dispute proceeding, 'shall be taxed as the court shall think just. . . .' Plaintiff cites Kelly v. Mullin, 159 Colo. 573, 413 P.2d 186, for the proposition that under C.R.S.1963, 118--11--11, all the costs should be assessed against the losing party. The court in that case held that the assessment of costs to the losing party was in accord with C.R.S.1963, 118--11--11. The court did not hold that all the costs Must, under said statute, be assessed to the losing party. The trial court has broad discretionary powers in the assessment of costs and we find no abuse of that discretion in this case.
Judgment affirmed.
DWYER and PIERCE, JJ., concur.