January 12, 2008

Losers in Boulder land dispute file appeal

'It's unfair what happened to us. We're going to fight on'

© 2008 WorldNetDaily.com

A Boulder couple who watched a judge give nearly one-third of their building lot in a pricy residential development to a neighbor who claimed using it has filed an appeal of the decision.

The Denver Post said Don and Susie Kirlin are attempting to reclaim the nearly one-third of their residential property in Boulder that a neighbor won in October in a court ruling in an "adverse possession" lawsuit.

The neighbors, former District Judge Richard McLean, and wife Edith Stevens, a lawyer, were awarded ownership of the chunk of property after arguing they had maintained the property for more than 25 years.

Colorado's adverse possession law allows those who "openly and notoriously" maintain property that is not their own for many years eventually to claim title to it.

The appeal focuses on arguments by the Kirlins that McLean and Stevens failed to meet the burden of proof needed to be awarded ownership, and that Judge James Klein, who issued the controversial ruling, erred in his decision.

A significant part of the foundation for the decision was the allegation by McLean and Stevens that they built and used a dirt path on the Kirlins' property for many years.

The appeal contends that Klein failed to determine the date of construction for the path, and since witnesses offered differing accounts, it might not substantiate the claim by McLean and Stevens.

The division of the small residential lot, according to the Kirlins, makes the remainder too small for the retirement home the couple hoped to build there.

The Kirlins estimate their losses in the case at about $800,000.

The legal action had generated considerable criticism, but the president of the Boulder County Bar Association, Sonny Flowers, suggested those who object to the results are "dumb, short-sighted, lacking in perspective or just plain wrong."

The Boulder Camera also noted that the case wasn't the first time a former Boulder judge used the law to win land from a neighbor.

"Earlier this year (2007), the secretary of the Indian Peaks chapter of the Sierra Club and his wife lost about 100 square feet of their property to Marsha Yeager, a former judge, and her husband, John Yeager," the newspaper reported.

That case involved Kirk Cunningham and his wife, Cosima Krueger-Cunningham, who were concerned about property lines, and began a process to have them verified. Their neighbors, the Yeagers, instead argued that since they had "taken the responsibility" for a rock wall, it and the land on which the wall sits should belong to them. The court battle took five years, and they won in the 2007 conclusion.

"The principal lesson for the public in all this is, in a place like Boulder where property values are skyrocketing, you need to make sure you know where your property lines are and keep your neighbors on notice – preferably with legal help," Cunningham told the paper.

The latest dispute already has been enshrined in Boulder lore by Don Wrege, a Boulder singer and songwriter, who wrote a song titled, "Edie and Dick (The Grinch Theme).

Stevens also told National Public Radio she and her husband are feeling "pretty beleaguered" by the fierce public opposition to the couple's case, which overcame testimony from the Kirlins that they paid taxes of about $16,000 a year, plus $65 a month homeowner association dues, to maintain the undeveloped land.