Colorado § 38-44-101 - When action may be brought.

§ 38-44-101. When action may be brought.

When one or more owners of land, the corners and boundaries of which are lost, destroyed, or in dispute, desire to have the same established, they may bring an action in the district court of the county where such lost, disputed, or destroyed corners or boundaries or parts thereof are situated against the owners of the other tracts which would be affected by the determination or establishment thereof, to have such corners or boundaries ascertained and permanently established. If any public road is likely to be affected thereby, the proper county shall be made a party defendant.

Source: L. 07: p. 286, § 1. Code 08: § 297. Code 21: § 298. Code 35: § 298. CRS 53: § 118-11-1. C.R.S. 1963: § 118-11-1.

Cross references: For alternative solution of boundary or corner dispute, see § 38-44-112.

ANNOTATION

I. General Consideration.

II. Priority of Evidence in Boundary Disputes.

I. GENERAL CONSIDERATION.

Law reviews. For article, "One Year Review of Property", see 35 Dicta 48 (1958).

Whether fence is boundary is question of fact. The question of what function a fence has performed over a period of years and whether it has been acquiesced in as a boundary is peculiarly a question of fact. Kelly v. Mullin, 159 Colo. 573, 413 P.2d 186 (1966).

Who suffers loss due to boundary line readjustments. Where one of two innocent parties must suffer a loss of land due to boundary line readjustments called for by later official surveys, it must fall upon the party later in time who has never been in actual possession of the land in question. Marr v. Shrader, 142 Colo. 106, 349 P.2d 706 (1960).

When refusal to appoint commission not error. In an action to establish an alleged disputed boundary to land, where such boundaries can be determined with accuracy, it is not error to refuse the appointment of a commission. Archuleta v. Rose, 136 Colo. 211, 315 P.2d 201 (1957).

Equitable relief granted where improvements mistakenly built upon land. Where the powers of the court were invoked to settle a boundary dispute and the rights of the parties with respect to improvements mistakenly built upon the land, there being no bad faith on the part of any of the parties, it was the duty of the court to grant such equitable relief as the situation required. Pull v. Barnes, 142 Colo. 272, 350 P.2d 828 (1960).

Where an adjoining owner had in good faith erected improvements on adjoining land, believing it to be his own, he should be granted the right to remove the same if feasible, and if not, then given an equitable lien on the property for the value thereof. Pull v. Barnes, 142 Colo. 272, 350 P.2d 828 (1960).

A boundary dispute may be resolved under appropriate statutory or common law proceedings. Durbin v. Bonanza Corp., 716 P.2d 1124 (Colo. App. 1986).

An unexplained use of an easement for the statutory period is presumed to be under a claim of right and is, therefore, adverse. Durbin v. Bonanza Corp., 716 P.2d 1124 (Colo. App. 1986).

Applied in Fisher v. Peterson, 152 Colo. 221, 381 P.2d 29 (1963); Hartley v. Ruybal, 160 Colo. 80, 414 P.2d 114 (1966).

II. PRIORITY OF EVIDENCE IN BOUNDARY DISPUTES.

Intention of parties controls. In construing a deed, the object is to discover and effectuate the intention of the parties to it, but while that intention is to be gathered from the language and words of the deed, it should be read in the light of the surrounding circumstances at least when it is ambiguous. Wallace v. Hirsch, 142 Colo. 264, 350 P.2d 560 (1960).

Where there are two repugnant descriptions in a deed, the court will look into the surrounding facts and will adopt the description which is most definite and certain, and which in the light of the surrounding circumstances can be said to effectuate most clearly the intention of the parties. Wallace v. Hirsch, 142 Colo. 264, 350 P.2d 560 (1960).

Monuments control courses and distances. In a conveyance of interest in land, whether by ordinary deed or by dedication, if the description of the land is fixed by ascertainable monuments and by courses and distances, the well-settled general rule is that the monuments will control the courses and distances if they are inconsistent with the monument calls. Wallace v. Hirsch, 142 Colo. 264, 350 P.2d 560 (1960).

Courses and distances least reliable of calls. A general rule of construction invoked in the case of repugnant calls in a deed is that courses and distances are the least reliable of all calls, and that a call which designates a point capable of precise and exact location takes precedence over a call for a course and distance if there is a repugnancy between the two. Wallace v. Hirsch, 142 Colo. 264, 350 P.2d 560 (1960).

Successor to party to boundary agreement estopped. A successor in title to one who has entered into an executed agreement as to location of the boundary line fence is not in a position to attack that agreement collaterally or to invoke the provisions of this section, merely by creating a dispute. Schleining v. White, 163 Colo. 481, 431 P.2d 458 (1967).