Facts: P holds the record title to the property in question. D purchased a cabin located
upon this property from the Boulder Rotary Club in 1930. D made improvements on the
cabin and from 1930 until the time of action, he and members of his family including
other D’s made use of the cabin by spending weekends there during the summer months
and occasionally remaining there for over a month. D kept the cabin in repair, posted
signs warning trespassers, kept the doors and windows locked during times of nonuse. D
has also paid real estate taxes for each year since his entry of the property. Trial court
finds for P.
Issue:
Holding: Reversed and remanded for D.
Rationale:
– D claims that he actually and continuously controlled and was in possession of the
land. P claims that because D used this as a summer home and therefore
possession was episodic and not continuous or actual possession at all times. The
court determines that because D locked his doors and windows and took
precautions as any land owner would do with his property, such as keeping up the
home that D was in actual and continuous control.
– Trial court determined that because the land was used by the public for picnicking
that D had no exclusive possession. In order for possession to be exclusive
however, its not that all use by the public be prevented, rather D must take
reasonable precautions to prevent use by outside parties. In this case, D asked
trespassers or picnickers to leave and in times of non-occupancy, trespasser signs
and locking the doors are reasonably adequate
– There was no dispute as to the possession of the land, but this does not mean that
any factual dispute or violence need be shown to prove that the possession was
adverse and hostile. In order to be hostile, it must be hostile and adverse to the
owner’s possession
– Open and notorious possession must meet within the standards that a reasonable
property owner would commence in order to maintain the land you believe is
yours
– Because there is no deed specifying the boundaries, the case must be remanded to
determine the boundaries