I don’t know who is right or who is wrong here. But all we have is one side. Adverse possession cases are fact-driven. We can’r even tell from the article whether this case involved title to the land or a determination that an easement exists.
Under the common law, unless you post property against trespassers, everyone has a right to cross it. If you want to stop people from using your property as a shortcut or whatever, you need to post it or fence it in. If you ignore the property, as these people seem to have done, you run the risk of a public or private right developing.
Adverse possession statutes are related to statutes of limitations. If someone is using your property, you have the right to eject them. But if they use your property and you don’t object for, in this case, eighteen years, then you waited too long and you can’t force the other party out.
Again, it’s not clear whether title to the property passed to the retired judge, or merely the right to cross the property, which is substantially different. The occupations of the parties is irrelevant. Even retired judges have a right to go to court.
Of course, everything could be exactly as the article states. We just don’t know.
Here are the court documents linked by Sue Bob on the previous thread:
http://boulderdude.files.wordpress.com/2007/11/order1.pdf
I’ve only had a chance to skim them, but maybe something in these will give you clarification. From what I have gathered from the audio of Mr. Kirlin on Caplis and Silverman and the video from My Fox Colorado, 1/3 of one of the Kirlins two lots now belongs to the retired judge and his wife.
If an easement were granted, that is what the article would state. This was a taking of 34% of this couple’s land. With this judgement the winner of the suit can ransfer title to himself.
The trespasser who won this suit was a judge, and probably either an unpleasant fellow or jus plain intimidating. There is a big chance that the couple didn’t approach him about his trespasses because hey wanted to avoid conflict.
No it is NOT. If you are granted a right of way or an easement across someones property you in effect now have control of the property. The owner can no longer do anything that would infringe on your right of way or easement.
It is a cloud on the title and does prevent the owner for using the property as he see’s fit. Combine that with local zoning rules regarding building offsets you can make the owner unable to build almost anywhere on the property.
Additionally, depending on how the right of way or easement is written, the owner would have to care for the property to local codes and/or association rules AND in worse case, maintain the right of way or even improve the right of way to zoning or code rules (as not doing so would be infringing on the access across the property).
The owner still has the title but the right of way holder has the defacto control of the property. The owner pays taxes, the ROW holder gets the use as granted.
The ROW holder also has a right that extends beyond the owners title holder rights and is inflicted on the next owner and all subsequent owners unless otherwise stated in the ROW.
So how is this less control than being the titled owner?
From the article:
On the radio show Kirlin explained his shock when the land on which he's paid taxes of about $16,000 a year, plus $65 per month homeowner association dues, on which he's sprayed for weeds and repaired fences, suddenly was made unusable by Klein's decision.
How did you come the conclusion that these folks ignored their property?
Here is an example of what can happen when you ask those crossing your land to stop.
Someone I know had a nice house and a large lot in a subdivision. Kids were regularly cutting across his backyard to catch the bus and he was allowing them to do this until some older kids started doing things like turning over his grill, throwing pieces of trash onto his lawn, etc. He stood outside one morning and stopped each person about to cut through and politely explained to them why they could no longer use his yard. That night, while he was in bed, someone, probably the offended hoodlums threw several molatave cocktails against the side of his house and burned it to the ground. The owners did manage to get out safely.
You're right, adverse possession cases are fact-driven. I'm not a lawyer, but I had a case something like this that I had to fight pro se (and I did win title to a small sliver of land).
The idea of adverse possession doesn't seem fair, at first glance, to most people. And people are understandably outraged at what looks like favoritism extended by one judge to another.
But after reading the judge's order (linked by beaversmom in post 15) it looks clear to me that the judge based his decision on the facts, the statute law and the cited case law.
Btw, McLean and Smith did win title (not just an easement) to a third of one of the Kirlin's lots.
One more point: While I have sympathy for the Kirlins, I think they've overstated the negative impact of this judgment. On the previous thread, they claimed the judge's decision had rendered their property unbuildable and unsellable, iirc.
That looks like an exaggeration on the part of the Kirlins. They have two lots next to McLean/Smith. If you look at those lots (accessible to the public on Boulder County's land records site) you'll see that the larger lot -- the one they were going to build on anyway-- is untouched by this judgment.
Looks plenty big for a house. The Kirlins can still build, or sell both lots as one.