Opinion
June 11, 1974.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 140
Paul A. Kastler, Raton, N.M., for plaintiff-appellee.
Adams & Sayre, O. F. Adams, Trinidad, for defendants-appellants.
SILVERSTEIN, Chief Judge.
Defendants, Sam and Pauline David, appeal from a judgment by which title to a parcel of land in Las Animas County, Colorado, was determined to be vested in plaintiff, Sanders, Inc. We affirm.
The parties owned adjacent parcels of land, and a dispute arose as to the location of the boundary separating the parcels. Thereupon plaintiff brought this action for determination of the boundary pursuant to C.R.S.1963, 118--11--1 et seq. A commissioner was duly appointed and he established that the boundary, which ran north and south, lay approximately 150 feet west of the boundary claimed by the defendants. The commissioner's boundary was adopted by the court and accepted by the parties as the boundary according to the record titles of the parties.
However, defendants, in their answer, claimed title to the disputed portion by reason of adverse possession for over eighteen years. See 1967 Perm.Supp., C.R.S.1963, 118--7--1(1). Trial was held to the court on this issue, following which the court found that the possession shown by defendants was neither hostile, adverse, under claim of right, nor open or notorious. The trial court further found that the original entry had been permissive and that no disclaimer of that type of entry was ever made. Title was therefore decreed to be in plaintiff, the record owner.
Defendants contend that the evidence does not support the findings and judgment of the trial court. We do not agree. In claiming title to the disputed parcel, defendants assert that the boundary of their land was established by a fence which had been in existence since 1926. Plaintiff admits the existence of the fence but contends that the fence was a barrier, not a boundary, and the trial court so found. Defendants' witnesses testified that the Davids had grazed cattle on the land, cut pinon wood, and one year unsuccessfully tried to harvest a crop. However, the testimony of Sam David established that he claimed title only to the land described in the deed by which he acquired title. That land did not include the disputed area.
In order to prove adverse possession of real estate, 'it must be shown that the possession was actual, adverse, hostile and under claim of right. It must be open, notorious, exclusive and continuous for the statutory period.' Segelke v. Atkins, 144 Colo. 558, 357 P.2d 636. Defendants' evidence showed actual, open and notorious possession but also established that such possession was neither adverse, hostile, nor under claim of right. It also established that such possession was neither exclusive nor continuous.
The evidence fully supports the findings and conclusions of the trial court, and they will not be disturbed on appeal. DeCola v. Bochatey, 161 Colo. 95, 420 P.2d 395.
Judgment affirmed.
COYTE and SMITH, JJ., concur.