Greenlee: Adverse evidence

By Bob Greenlee
Sunday, May 11, 2008

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Boulder's notorious "adverse possession" case grinds along with yet another troubling verdict handed down this week by District Judge James C. Klein.

Klein decided last October that former District Judge Dick McLean and his wife Edie Stevens should be given title to about a third of the adjacent land owned by their neighbors Don and Susie Kirlin. The justification surfaced because the judge determined McLean/Stevens had a "stronger attachment to the land than did the true owners' attachment."

The Kirlins were upset, astonished, and outraged by the ruling. They appealed the decision declaring that McLean/Stevens may have fabricated evidence and testimony about their illegal trespassing on the disputed property. The Kirlins believed an appeal was appropriate and necessary even though they faced significant legal costs along with considerable emotional distress in addition to having suffered a tremendous financial loss.

Earlier this year the Colorado Court of Appeals ordered Judge Klein to review the case and decide whether "new evidence" the Kirlins wanted to produce might cause the judge to reverse his earlier decision. The Kirlins also requested the judge hold a hearing so an expert analyst could present testimony that might persuade him. Klein declined to hold a hearing or take additional testimony and essentially told the Kirlins to take a hike. The judge was extremely critical of the Kirlins suggesting they had "purposefully mislead" the court with certain evidence and have been "disingenuous in their assertions." It appears the dispute will ultimately be decided by the Court of Appeals and early indications suggest the outcome doesn't look very favorable for the original property owners.

Largely as a result of this rather stunning case, and the public outrage it produced, Colorado law surrounding "adverse possession" was given the scrutiny it deserved. This past legislative session saw the law changed and now requires a "good faith" demonstration that disputed lands will be given greater review before anyone's legally owned property can be handed over to someone else. The burden of proof will be raised along with seeing that parties who are awarded land at least have to pay something for the windfall they might otherwise receive.

At the end of the day there will be no real winners in this local land dispute. Dick McLean, a former mayor of Boulder and someone who served as the city's elected representative on the Regional Transportation District's board of directors, along with his wife Edie Stevens, have suffered a negative backlash to what they initiated. After the matter became public the two wrote a four-page letter to friends attempting to explain the dispute. The letter blames a lot of other people for the problems they encountered accessing their property. They claim attempts to resolve matters before filing a lawsuit were unsuccessful. They don't justify their notorious 20-year trespassing but wrote that Robert Frost spoke ironically when he said: "Good fences make good neighbors."

Don and Susie Kirlin have suffered a tremendous economic loss and are the ultimate victims of this sorry affair. They now stand accused of having "purposely misled" a court of law in addition to having had a good portion of a valuable residential lot being taken away. And the judge? He claims he was bound by the court's "oath to apply the law to the facts" and was required to disregard any public outrage concerning his decision. Maybe so, but time will tell.

Today property owners may rightfully become more aggressive with neighbors who innocently trespass on their property. Does anyone remember or care what that "Golden Rule" was all about?

Bob Greenlee was a member of BoulderCity Council for 16 years and served his last 2 years as mayor. He can be reached at: .