More Boulder Adverse Possession?

Would you believe that we’re seeing another possible adverse possession case in Boulder again? I’d think that people that own Boulder real estate would have caught on by now and considered doing their homework before fooling around with each other’s property.

The owner of a mobile home park in northeast Boulder put in a fence and it has some people bent out of shape over access to their usual short-cuts through his land.

The Daily Camera reports that a Boulder City Councilman has the city attorney looking into using adverse possession as a tool to get the owner of the mobile home park to remove the fence.

This really looks more like a case of an easement issue rather than adverse possession. With an easement concern, you have the advantage of the law being applied by virtue of multiple people using the land, not a single person, per se.

In a case like this, the type of use (or mis-use) of the land appears to have possibly created an easement. The rules of adverse possession apply except that it’s generally a condition like we see here where multiple people using the land have created an easement. No one gets to claim ownership of the land but rather, it’s possible to enforce what’s called an easement by prescription.

We see it more frequently in rural areas such as when a farmer or rancher might have used part of a neighbor’s property to access his own land, move livestock, or to access water he might have rights to. At some point the accessed land sells, the new owner puts up a fence and the neighbor cries ‘foul’ and demands continued access across the neighbor’s property by virtue of a prescriptive easement. This Vista Village situation is more like that than what we have in South Boulder with the Kirlins.

While the local officials and residents decide how they can get this sorted out, I’m wondering if anyone asked the landowner why he put up the fence. Just because people that live in the area have had the convenience of ‘trespassing’ on this guy’s land for a long time to gain easy access to open space trails, or to just shorten their walking commute; I’m not sure I agree that this should warrant legal intervention by the city.

Maybe all these people tramping through the mobile home park have caused a disturbance. Could it be that the owner of this land and the tenants renting space for their mobile homes were cool with a few people strolling through–but now that the traffic has picked up, it was finally time to call it quits.

I remember as a kid walking home from school and seeing this old guy (yeah, he was probably way old, like 50 or something!) run string around his corner lot so we kids wouldn’t cut across his front lawn. Now I think I understand him. There was trash left behind, trampled grass, and noisy kids.

I think everyone’s too quickly ready to jump on the litigation band wagon. Sure, there are laws to possibly force this landowner to possibly pull down the fence and allow the stream of dogs, bikes, walkers and who knows what hooligans across his property. But…

Do you think that maybe there’s more to it than enforcing a law to keep things as they were? Status quo reason enough for you? The residents of Vista Village seem to be glad the fence went in. There are all sorts of places around Boulder that are getting over-run as the population grows and more folks discover ways to shorten their walking or biking commute. You need to ask yourself though, is adverse possession or easement by prescription as a means to violate a property owners rights to put up a fence to thwart trespassers the best path to improving our quality of life in Boulder?

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