Trespassers' triumph
Unfortunate ruling in Boulder raises troubling issues for state
Tuesday, November 20, 2007
'What would Mr. Rogers say?" asked one of the signs at a rally Sunday on Hardscrabble Drive in Boulder. The protester obviously believed, with reason, that the late Fred Rogers would be appalled at the way a couple living there obtained title to some of their neighbors' land.
"I've always wanted to have a neighbor just like you," crooned Rogers on his popular TV show for kids. "I've always wanted to live in a neighborhood with you."
Forgive Don and Susie Kirlin if they do not share Rogers' syrupy sentiment toward Richard McLean and Edith Stevens. Although the two couples do not live next door, the Kirlins own a lot next to the others' residence. Or rather, they own two-thirds of a lot, since roughly a third of it was taken from them last month in a district court ruling that awarded their property to McLean and Stevens.
What makes this tale even more curious is that McLean himself is an ex-judge, as well as a former Boulder mayor and RTD board member.
The ruling has shocked lots of people, and no wonder. Most nonlawyers are probably only vaguely aware that there might be something akin to a "squatter's right" in modern law, much less that it could be used in such a brazen fashion to take land from people whose only failing was that they hadn't noticed shameless trespassers.
McLean and Stevens maintain they not only trespassed openly and regularly, but treated the land as if it were actually theirs.
The legal principle under which they sued the Kirlins to seize the land is called "adverse possession." In Colorado, someone who acquires land this way must have used it openly for at least 18 years - right under the owner's nose, if you will - and not be asked to stop.
The Kirlins live down the street from the 4,750-square-foot lot that is the focus of the dispute; they say that they walked by it regularly but never noticed the other couple's activities there. And "activities" is right.
Judge James Klein, who heard the case, concluded that McLean and Stevens were telling the truth when they contended that they cut paths through land they didn't own, stacked a wood pile on it, held parties, extended a garden into it, trimmed foliage, and built a rock retaining wall.
To an ear unschooled in legal nuance, it sounds as if they should be the targets of a lawsuit rather than the other way around. But that reaction speaks to the perverse manner in which the law was applied in this case.
Perhaps there are instances in which a claim of adverse possession may prevent a greater injustice, but this is not one of them. In this case, what many Americans would consider unethical behavior is being rewarded. It is being done through what amounts to the exotic imposition of a legal concept most people weren't even aware existed.
"For a quarter of a century I maintained the land," Don Kirlin testified. "I paid taxes. I paid home owners dues. We repaired the rail fence. We took care of the noxious weeds."
In effect, as the Kirlins' lawyer argued in a brief, the plaintiffs sought "to punish the defendants for failing to develop that land."
And make no mistake: McLean and Stevens knew exactly what they were doing, as their own testimony acknowledges.
"Mr. McLean, when you first moved into the house you almost immediately began using the vacant lot?"
"Yes."
Also: "You always knew from the moment you moved in that someone else owned that piece of property?"
"We knew that McStain owned it at first. At some point I heard that the Kirlins bought it."
Sunday's protesters apparently hoped to shame McLean and Stevens into rethinking their decision to take their neighbors' property - an almost certainly futile hope. If this injustice is going to be rectified, it will have to be done by the institution that perpetrated it in the first place: the judiciary. The Kirlins do not believe the legal requirements for adverse possession have been met, and have vowed to appeal Klein's ruling. We hope their legal analysis is correct, and that they prevail.
Otherwise, a beautiful day in the neighborhood - in the Kirlins' case, 23 years of beautiful days, in fact - risk being turned in a nightmare that lasts the rest of their lives.