Posted on 11/22/2007 12:09:13 PM PST by Sue Bob
BOULDER -- The "adverse possession" case through which retired Boulder judge Richard McLean was able to grab a swath of land on a neighbor's vacant lot triggering cries of protest by people who don't know any parties involved is not the first time a former Boulder judge has used the law against a neighbor.
Former Boulder County Judge Marsha Yeager, whose tenure on the Boulder County bench overlapped that of McLean, filed a successful "adverse possession" case against her neighbor in 2002.
--snip--
In Yeager's case, she filed suit against the family of Cosima Krueger-Cunningham, to settle ownership of a one-foot high, one-foot wide stone wall dividing their two Boulder residences.
Yeager, her spouse is a lawyer, just as is the case with McLean, lives at 963 7th Street, while Krueger-Cunningham live at 977 7th Street.
"My family has lived here since 1950, so that's what, 57 years," said Krueger-Cunningham, who grew up at 977 7th St.
"We have a long history with that wall. I have many childhood memories with that wall, of playing on the wall with my friends. My parents always assumed it was their wall. "It's been a nightmare."
When she heard that Yeager was using something called "adverse possession" to claim ownership of t he wall and thereby move the property line dividing their properties roughly one foot in Krueger-Cunningham's direction, she said, "I didn't really understand what it was all about."
--snip--
It was intimidating, said Krueger-Cunningham, to be sued by a former judge - one who is married to a lawyer, no less.
"I feel that she was at a distinct advantage, in that she had been on the bench for I don't know how many years. She obviously, you know, was well known to people in the judicial system."
(Excerpt) Read more at myfoxcolorado.com ...
I know the elements as I am a lawyer and studied it too. The use has to be notorious, hostile and continuous—so it is very fact driven. I just can’t imagine how cutting grass next to a wall dividing your property and such could be notorious—or could exclude the owner(a subset of the element, notorious). Moreover, if the owner cut the grass on their side of the wall and did anything at all to the wall, it would be joint possession which would defeat the adverse possession.
Also, as a lawyer, I know how often people lie in court and how presiding judges are not necessarily paragons of virtue or intelligence. This judge’s Judge buddies heard the case. Red flags go up for me.
the Peoples Republic of Boulder
What better reason to be a judge than to abuse the peons?
This case, like the other one, is not even a legitimate adverse possession case. For her to make an adverse case, she would have to have proven that she had built the wall on the neighbor’s land, and defended it “openly” and “notoriously,” and had paid the taxes on the land and the wall for at least five years. Those findings are not noted.
I can’t see the picture you posted.
Squatter’s rights do not create ownership of the fee; they are only a vehicle toward a prescriptive easement of surface rights. That’s not what adverse possession is about. Because of the tax being paid by the advewrse occupant, the fee is what is under attack.
Apparently, in Colorado, who pays the taxes is not relevant. The other couple mentioned in the article lost 1/3rd of their lot upon which they paid $16,000 per year plus HOA dues.
I don’t understand in this case how you use a wall openly and notoriously to the exclusion of its owner. The purpose of the wall was to mark the boundary. The owner’s were using it in that manner. How did the landgrabber trump that?
I can’t either, now that I posted it. I’m not sure what went wrong. It’s a picture of a US soldier guarding a wall.
The state attorney general needs to step in and get involved here. Soemthing is rotten in Boulder.
The story is terribly written. How did Yeager actually take possession of the wall for 18+ years? And doesn’t a single use by Krueger-Cunningham nullify any period of use by Yeager?
That’s not a big deal. Down here in Comanche county TX, we have a County Judge who takes possession of elderly senile couples property and sells it for his personal benefit.
Small county and you can’t touch the thief.
There should be a law against this, and there is. But those who enforce the laws also know how to profit from selective/creative enforcement.
That is absolutely horrible. Is he a probate judge or the County Judge re County Commissioners?
I agree. And, how do you use a wall for other than its intended purpose—to give notice of the property line and/or to contain animals, give privacy, etc.. After all, you don’t build on or grow crops on a wall!
The owners were using the wall—as a wall!
Okay, I just found a comment posted at The Daily Camera by the husband of the woman who lost the wall.
http://dailycamera.com/news/2007/nov/22/adverse-possession-officials-work-on-land-law/
Posted by cardamomseed on November 22, 2007 at 3:21 p.m. (Suggest removal)
As the husband of the landowner on the MyFox piece mentioned above, I am skeptical of the “fix” for this law proposed by Tupa and Witwer, at least as it was described in the article. How is the land owner protected better from the AP claimant by allowing te claimant to use “well, I thought it was my land” as evidence of anything? Has Jiminny Cricket become the source of lawcrafting around here? In our case, the claimant said exactly that and proferred an erroneous Improvement Location Certificate as evidence that our deeded and staked property was hers! Of course, the claimant also said they had used our property in other ways that they could not document except by their sworn testimony. Since the adverse possession law supposedly assumes that the claiment has the burden of evidence, not the property owner of record, we can only assume from our case and that of the Kirlans that the quality of evidence that can be accepted is too lax. We have pointed out before that the present standard is “preponderance of evidence”, but it used to be “clear and convincing evidence.” Some years ago the Colorado Supreme Court changed that standard. Can the original be re-established? Our belief is that the stricter standard might have raised the bar enough to shoot down both claims. Have Tupa and Witwer considered that approach?
Kirk Cunningham
County Judge
Like most Texas small county judges, his ruling is the final word. All practicing attorneys in HIS county have to abide and tow the line. It’s near impossible to break with his version of justice.
So, does he handle probate matters? Is that how he gets his claws into these people’s land?
He handles all types of cases in HIS county.
This makes me sick. Do the families try to fight this—or are they prevented from doing so because they can’t get representation?
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