Posted on 11/25/2007 6:31:07 PM PST by joanie-f
How many times have we heard about government abuses of the right to own property going on in neighborhoods across America, in the form of the invoking of the right of ‘eminent domain’, and the corruption of other legal concepts? Kelo vs. New London is probably the most publicized of such unconstitutional atrocities, but similar atrocities occur daily across this country.
How many of us have attempted to help the victims of such abuses of power? I myself have done so no more than once or twice.
I ask any FReeper who happens upon this thread to take ten minutes of his or her day to read about one such abuse of power. In terms of land area, it is a small abuse, and it affects only two ordinary American citizens who wield no more power than you or I. But its ramifications are enormous. If we’re not going to decide to stand shoulder-to-shoulder with the two relatively anonymous Americans I’d like to introduce to you, exactly when will we decide that it’s time to unite in revolt against the growing ‘privileged elite’ in this country, and the menace they represent to us all? The so-called legal/justice system is using all manner of wicked precedent to commit major, obscene private land grabs ... all such crimes tracing back to a desire for more wealth and power on the part of those who already wield more than you or I.
Before inserting the precious words ‘life, liberty and the pursuit of happiness’ into the Declaration, our Founders seriously considered using the wording ‘life, liberty and property’ (as originated by John Locke). I believe the latter to be a more powerful representation of our inalienable rights, but apparently the modern American government/judicial system vehemently disagrees with either expression.
Don and Susie Kirlin own a vacant lot, worth roughly a million dollars in today’s market, on the outskirts of Boulder, Colorado. They purchased it about twenty years ago with the idea of eventually building a home there. It is located just down the road from their current home, they walk by the land regularly, and they have been paying taxes on it faithfully for the past two decades.
Unfortunately for the Kirlins the couple that owns a home adjacent to their lot consists of a county judge, Richard McLean, and his wife, Edith Stevens, who is also an attorney. McLean and Stevens have been active, and powerful, in Boulder County politics for decades. It seems that this ambitious couple has been using a portion of the Kirlins’ land to occasionally hold their own private parties, and, in doing so, they have also created worn pathways through portions of that land.
It also would appear that these two believe that, if the Kirlins build a home on the land they purchased for just that reason, the view of the surrounding landscape from their own home would be diminished.
When the Kirlins attempted to build a fence on a portion of their vacant land before beginning construction on it, McLean and Stevens had a restraining order issued against them, stating that, since they had been using the land themselves for some time, they had become ‘attached’ to it and they are claiming it as their own. The restraining order was issued within a few hours of their request for it. Apparently the wheels of justice move at lighting speed, if the person requesting the moving has the right connections.
As a result, McLean and Stevens have invoked the doctrine of ‘adverse possession’, which allows a citizen to claim another’s property simply by virtue of using it for a specified period of time, in order to declare one third of the Kirlins’ land as their own. A Boulder judge has ordered the Kirlins to hand over to McLean and Stevens one-third of their land, which will result in their no longer owning sufficient land on which to construct not only their dream home but any home at all.
As if the preceding weren’t evidence in itself of unmitigated chutzpah, McLean and Stevens are not only claiming to ‘own’ a large portion of the land in question (without ever having paid a penny for it, or any of the taxes incumbent in its ownership), but they are also asking the court to rule that the Kirlins must pay any legal fees that they incur in order to achieve this particular theft.
Thus, as is becoming increasingly common in Amerika 2007, two people in power have decided to use a corrupt system to steal from someone else of lesser political stature -- in this case, out in the open, and without conscience or remorse.
Needless to say, the Kirlins are appealing the ruling (and amassing large, and no doubt growing, legal fees in the process). But I wouldn’t be taking any bets on their success. ‘Fighting city hall’ is fast becoming an empty phrase anymore, because the concepts of government of, by and for the people -- originally made possible by public servants who value individual rights more than government power -- is fast heading for extinction, as corruption, greed, and lust for power achieve a momentum that has become virtually relentless and unstoppable. Not to mention the fact that both the eighth (re: coveting) and tenth (re: stealing) of the Ten Commandments have essentially been declared null and void.
This case vividly portrays the battle between the average American citizen and our modern American 'ruling elite'. Yet too many Americans are more interested in the comfort of our couches, and the proximity of our remote controls, than we are in the plight of the likes of the Kirlins -- victims of a system gone awry.
Unless we Americans start giving a damn about the abuses that our neighbors suffer under tyrannical government dictates, those abuses will someday affect us, and there will be nobody left who can turn the tragedy around.
The only difference between appeasement and surrender is the passage of time.
Contact Information for Boulder, Colorado officials (and thanks, in advance, to all who avail themselves of this source of redress):
Cindy Domenico, Boulder County Commissioner
Ben Pearlman, Boulder County Commissioner
Will Toor, Boulder County Commissioner
Joan Fitzgerald, Colorado State Senator, District 16
Brandon Shaffer, Colorado State Senator, District 17
Ron Tupa, Colorado State Senator, District 18
Alice Madden, Colorado State Representative, District 10
Jack Pommer, Colorado State Representative, District 11
Paul Weissmann, Colorado State Representative, District 12
Claire Levy, Colorado State Representative, District 13
Dianne Primavera, Colorado State Representative, District 33
Resources:
Legal Landgrab Should Be Overturned on Appeal
Boulder Couple Accuses Former Judge, Mayor of Land Grab
Hard Feelings on Hardscrabble Drive
~ joanie
Allegiance and Duty Betrayed
I don’t think they expected this kind of attention.
Jeepers... Thanks for the ping.
No. the Wiki explaination is bad. All that's required is that the possessor use it openly and notoriously, and that the owner did nothing to stop it. Only te following part nof the Wiki explain is good:
"Generally, the openly hostile possession must be continuous (although not necessarily constant) without challenge or permission from the lawful owner, for a fixed statutory period in order to acquire title."
The Colorado statutes concerning adverse possession read, in pertinent part: Every person in the actual possession of lands or tenements, under claim and color of title, made in good faith, who for seven successive years continues in such possession and also during said time pays all taxes legally assessed on such lands or tenements shall be held and adjudged to be the legal owner of said lands or tenements to the extent and according to the purport of his paper title.
There was NO evidence whatsoever that McLean and Stevens were using the land in good faith under color of title, and NO evidence whatsoever that they paid the taxes on that property, while the Kirlins did proffer evidence that, in fact, it was they who were paying the taxes on the land to which they held actual title. McLean and Stevens offered NO proof that they had used the land for more than 7 years, merely their own unsupported and self-interested testimony. Moreover, there are photographs which clearly show that McLean and Stevens lied to the court about creating paths years ago.
On appeal, the Kirlins should be granted a trial de novo before a judge who does not have personal and political relationships with McLean and Stevens. It's unfortunate that we do not have a civil rights defense organisation dedicated to defending property rights, much as FIRE defends speech rights. This case gets me mad enough to think about starting one myself.
Your take on this case is the correct one. As soon as they saw a path or landscaping or any evidence of usage, they should have first called the survey crew to put up the little orange flags, and then the fence contractors to surround the place. Period. End of story. Sad but true, but it is their fault for being neighborly.
There is a fairly good chance that with enough press and publicity they can get their land back. Then of course they will need to promptly sell it, because it is unlikely they would want to live next door to these greedy bastards.
About the most common sense post on the whole thread. Thanks.
Foot paths don't often show in those pics, since they're no more than animal paths. I read the court doc, which was taken down from the link in #76. The aerial pics are n/g. The neighbors testified that the judge regularly did landscaping over those years on the property and the court noted, that it was the only access. Surveyors also noted the path.
"Second, the ethical complain should not have been heard by a friend. Rather the friend, the judge, should have recused himself personally. The matter should have been sent to another court where this perp had not worked previously."
I don't see a "perp". The court docs told me, that it was a solid case of adverse possession. You don't get to whine after you've been totally abscent for over 20 years in these cases, and the Kirlins definitely were.
There is always the chance that there are some real ( not faked ) 20 year old aerial pictures that may show a path. Or maybe some other real proof that has not been reveled to date. Then we will be wrong on the first point.
We all will be watching if they try to photo shop something or pull a Dan Rather forgery.
Your land, use it or lose it.
In Texas and apparently in Colorado, you are wrong. Now the idea of making a pig farm on the remaining farm, just to be a spoilsport is entirely appropriate and just. :)
Here in PA, you can invoke adverse possession if you have been paying the taxes on the propety during the time you were "using" it and I'm going to assume it's the same in CO. According to everything I've read, McLean hasn't paid a penny in taxes and the Kirlins have paid 20 years worth.
It's obvious these two with political connections are bending the law and figuring they can get away with stealing. It looks like people are getting wise to their plan and it may not happen. I hope not.
Thanks for the ping and letting people be aware of this. Your land can ‘disappear’ just over such a silly reason. One of these days I’m going to write about how my land was lost. When it happened nearly two decades ago, there really wasn’t any one to tell and no one believed it anyway. Those things don’t just happen, I was told. Well , yes they do. People like these rotten judges have been getting away with this stuff for a long time. But now the victims don’t stand alone. They go after easy targets. I was a single mother and couldn’t afford to fight them. No one should be subjected to this kind of theft.
Sorry for the perp part.
Can a path be enough or must there be a man made structure like a fence or a building ?
Hopefully, one positive result will be that folks now will hire a surveyor, re-check their lot corners, or some such to vertify that someone is not sitting on part of their land.
The attention may even get bigger on ex-judge and former Boulder mayor Richard McLean and his lawyer wife Edith Stevens.
That is a fact. "Adverse possession" does not exist in statute law in any state in the U.S. It exists in case law, through rulings that refer back to English law from centuries ago.
The basis of adverse possession lies in a monarch's power to tax land and it's productive uses. One who used the lands of another, and paid the taxes therefore due, was usually awarded fee title to the land after a reesonable period of time.
In this case, no productive use was established, and no taxes were paid by the plaintiff, thus the ruling is defective on it's face.
My understanding (which was rekindled by R#84) of adverse possession is that it generally refers to a piece of land that has been essentially abandoned (or mistakenly assumed to belong to an adjoining landowner). The person who desires to claim it must maintain it and pay taxes on it for a prescribed period of time (which may be twenty years in Colorado?).
I don't believe that McLean or Stevens have 'maintained' the land, nor have they paid a cent in taxes, while the Kirlins, although not maintaining it (And why would they, other than perhaps mowing it, which, from the photos I've seen, it appears that they did? It's a vacant lot.), they faithfully paid the taxes on it for the twenty years that McLean and Stevens claim they were 'using' it.
The motives in this case are obvious, and the McLean/Stevens claim doesn't fall under the adverse possession umbrella for several reasons.
This appears to be a case of two arrogant, politically-connected big-wigs who think they can throw their weight around under the radar, and steal from a neighbor in the process. IMO, the fact that they may lose the natural view from the side window of their home does not take precedence over their neighbors' property rights. And, if all is as it appears, they are without integrity ... or conscience.
~ joanie
Yeah, well let's see...
You cited what is presumably CO law which covers the case where the party attempting adverse possession files a deed at the Co recorder of deeds. Note, it's says under a claim and color of title, made in good faith. THe clause you quoted covers the case where neither owner has clear title. The first owner was apparently neglegent in checking for clear title to begin with, and evidently failed to get title insurance, which would have caught the problem.
The appropriate Co law covering this is: CO:38-41-101. Evidence of adverse possession.
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).
38-41-101. Limitation of eighteen years. Statute text (1) No person shall commence or maintain an action for the recovery of the title or possession or to enforce or establish any right or interest of or to real property or make an entry thereon unless commenced within eighteen years after the right to bring such action or make such entry has first accrued or within eighteen years after he or those from, by, or under whom he claims have been seized or possessed of the premises. Eighteen years' adverse possession of any land shall be conclusive evidence of absolute ownership.
Make sure to note the annotations of court rulings that follow in the link.
I find it amazing that the judge who ruled in this case, and McLean and Stevens, both legal experts themselves, are all 'unaware' of this discrepancy.
~ joanie
No, it's a case of perjury, and a dishonest jurist, pure and simple.
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