Colorado § 38-41-103 - Evidence of adverse possession.

§ 38-41-103. Evidence of adverse possession.

If the records in the office of the county clerk and recorder of the county wherein the real property is situate show by conveyance or other instrument that the party in possession or his predecessors or grantors, through descent, conveyance, or otherwise, have asserted a continuous claim of ownership to the real property adverse to the record owner thereof for a period of eighteen years, then the record shall be deemed prima facie evidence of adverse possession during said period and compliance with the requirements of sections 38-41-101 and 38-41-102.

Source: L. 27: p. 599, § 32. CSA: C. 40, § 138. CRS 53: § 118-7-3. C.R.S. 1963: § 118-7-3.

ANNOTATION

Whether or not possession is adverse is generally a question of fact to be determined by the fact finder. Schoenherr v. Campbell, 172 Colo. 306, 472 P.2d 139 (1970).

Requirement of continuous possession construed. The requirement of continuous possession in order to establish a right-of-way by prescription does not mean that the claimant must physically possess it every moment of the day, because the nature of the right claimed is the right to passage whenever passage is desired. Gleason v. Phillips, 172 Colo. 66, 470 P.2d 46 (1970); Agric. Ditch & Reservoir Co. v. Gleason, 686 P.2d 802 (Colo. App. 1984), rev'd on other grounds, 723 P.2d 736 (Colo. 1986).

Records filed with a county clerk and recorder may serve as prima facie evidence of adverse possession only if they illustrate a completed statutory period and not an attempt to begin such a period. People v. Bruno, 2014 COA 158, 342 P.3d 587.

Defendant filed an affidavit of adverse possession on a residence after illegally residing there for less than three months. This section applies only to records that show a completed statutory period of 18 years. People v. Bruno, 2014 COA 158, 342 P.3d 587.

"Mere occupancy" not adverse possession. Where there is insufficient evidence that any of the defendants ever asserted that they owned the subject property until the commencement of this action, the "mere occupancy" of a part of the subject property from time to time does not add up to adverse possession. DeCola v. Bochatey, 161 Colo. 95, 420 P.2d 395 (1966).

The practice of grazing cattle on unfenced land is not of itself sufficient to show adverse possession. Thompson v. Clarks, Inc., 162 Colo. 506, 427 P.2d 314 (1967).

Presumption of adverse possession. Where the evidence is sufficient to establish that the defendants have been in open, notorious, and continuous possession of the easement since 1940, it must be presumed that the possession was adverse. Gleason v. Phillips, 172 Colo. 66, 470 P.2d 46 (1970); Raftopoulos v. Monger, 656 P.2d 1308 (Colo. 1983); Agric. Ditch & Reservoir Co. v. Gleason, 686 P.2d 802 (Colo. App. 1984), rev'd on other grounds, 723 P.2d 736 (Colo. 1986); Smith v. Hayden, 772 P.2d 47 (Colo. 1989).

Every reasonable presumption is made in true owner's favor as against one who claims to have acquired title through adverse possession. DeCola v. Bochatey, 161 Colo. 95, 420 P.2d 395 (1966).

Recognition of record title strengthens adverse possessor's claim. A recognition of record title does not demonstrate an intent not to possess adversely where there is no dispute in the evidence of adverse possession of the disputed property; the very fact that the plaintiffs recognized that the record title of a portion of the property was not in their names, enforced and strengthened the claim of adverse possession. Schoenherr v. Campbell, 172 Colo. 306, 472 P.2d 139 (1970).

Adverse possessor has burden of proof when trying to divest the record owner of his lawful title to real property. DeCola v. Bochatey, 161 Colo. 95, 420 P.2d 395 (1966).

Party claiming title by adverse possession has the burden of proving his claim by clear and convincing evidence. Schutten v. Beck, 757 P.2d 1139 (Colo. App. 1988).

Where the extent of the adverse possession is not defined by deed or by physical barriers, the claim is limited to the property actually occupied by the claimant and such occupancy is a question of fact for the trial court to determine. Such occupancy does not require constant, visible occupancy or physical improvement on all parts of the parcel, but rather the ordinary use for which the land is suitable and which an owner of the land would make of it. Similarly, possession need not be absolutely exclusive in order to attain the degree of exclusivity required for adverse possession. Smith v. Hayden, 772 P.2d 47 (Colo. 1989).