Graham v. Jules Investment, Inc.

2014 COA 136, 356 P.3d 986, 2014 WL 5033277
CourtColorado Court of Appeals
DecidedNovember 13, 2014
DocketCourt of Appeals No. 13CA1364
StatusPublished
Cited by2 cases

This text of 2014 COA 136 (Graham v. Jules Investment, Inc.) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Graham v. Jules Investment, Inc., 2014 COA 136, 356 P.3d 986, 2014 WL 5033277 (Colo. Ct. App. 2014).

Opinion

Opinion by

JUDGE BERNARD

T1 Can a court order a land owner to sell the land to another if the other's structures encroach on the land? We recognize that this remedy, which is called a "foreed sale," should be used sparingly in encroachment cases. But, under the unusual facts of this case, we conclude that such a remedy was proper.

12 This appeal involves a refuge that harbors exotic animals. It is owned by defendants, Big Cats of Serenity Springs, Inc., d/b/a Serenity Springs Wildlife Center, and Jules Investment, Inc. The animals live in structures that are. surrounded by fences.

3 The trial court determined that some of the refuge's animals and their keepers trespassed on 1.7 acres owned by plaintiffs, James M. Graham and Nichole J. Graham. As a remedy, the trial court ordered

® plaintiffs to sell the 1.7 acres, which contained some of the structures and fences housing some of the exotic animals, to defendants for $5780;
® defendants to pay all fees and costs associated with this sale; and
® defendants to pay plaintiffs $1787 to assist them in applying for a waiver that would allow plaintiffs to employ their property for agricultural uses.

4 We conclude that the court did not err in its analysis of plaintiffs' trespass and encroachment claim. We also conclude that this remedy was within the trial court's discretion. We therefore affirm.

I. Background

A. The Property

T5 Serenity Springs Wildlife Center is a ten-acre wildlife refuge located in El Paso County. It was established by Nicholas and Karen Sculac in the mid-1990s. In 1999, the Seulacs formed a Colorado nonprofit corporation-Big Cats of Serenity Springs, Inc.-to manage it, The refuge houses about 140 tigers, lions, and other exotic animals,. Many of these animals are threatened or endangered species. f >

T6 The refuge obtained these animals as "rescues" from other animal sanctuaries around. the country that have gone out of business. It derives its inconie from visitors' fees and private donations. - It has some paid staff and also uses volunteers.

T7 The refuge was onee part of a 320-acre parcel of Isnd that Mrs. Seulae acquired in 1993. In 1997, after Mr. Sculac erected the perimeter fence enclosing the refuge, Mrs. Seulae recorded a deed that severed the refuge from the original parcel. And, in 1998, she recorded another deed that severed another 86.5-acre parcel from the original parcel. This 36,5-acre parcel is directly south of, and shares a common boundary with, the refuge. The Sculacs built their home on this parcel, The home is located about 1000 feet from the refuge.

T8 The record reveals that, beginning in 2000, the Sculacs and their property went through cycles of foreclosure and reacquisition, Lenders foreclosed the Seulaes' home and the 36.5-acre parcel in 2000. The Seu-lacs reacquired the parcel and the home in 20083 after the property had passed through several hands. They lost their home and the parcel again in 2006, the year that Mrs. Sculac died, The lender sold the home and the parcel, and the buyers eventually sold it to the plaintiffs in 2010.

N9 The Sculaes lost the refuge to foreclosure in 2001, but they got it back in 2004. [988]*988Mr. Seulac sold it to third parties in 2007; he reacquired it later that year; and a lender foreclosed it in 2008.

[ 10 The lender sold it to Julie Walker in 2009. She conveyed it to a corporation, Jules Investment, Inc. She also married Mr. Seulae in 2010.

B. The Survey

11 The plaintiffs did not have the 36.5-acre parcel surveyed when they bought it in 2010. But they hired a surveyor in 2012 who told them that a piece of the refuge, which consisted of 1.7 acres that was surrounded by a fence, was on the plaintiffs' 86.5-acere parcel. The fence enclosed pens and concrete lion and tiger dens. The footings for these structures were sixteen-inch-wide concrete slabs that were buried two to four feet into the ground. About nineteen Hons and tigers lived on the 1.7 acres.

12 (The refuge had also been using about one acre on the 36.5-acre parcel as a dump. The trial court ordered plaintiffs to remediate the dump and to return it to the defendants. Neither party appeals that decision.)

113 The following diagram shows the approximate relative relationship of the properties that we have described above. This diagram is for illustrative purposes only, and it is not drawn to scale.

C. The Lawsuit

« 14 Plaintiffs sued defendants for trespass and nuisance. They withdrew their nuisance claim, and they moved for summary judgment on the trespass claim. The trial court initially entered summary judgment for plaintiffs. But the court later granted defendants' motion to reconsider its ruling, and it then entered summary judgment for defendants.

15 The trial court concluded in the see-ond summary judgment order that the "structures alone" were not a trespass. But it decided that the use and presence of the structures "deprivefd]l ... plaintiffs of the use of" 1.7 acres of their 36.5-acre parcel and "facilitated a regular, if not continuing trespass" of the refuge's staff on that. part of their property.

{16 The court then held a hearing to determine the appropriate remedy. Defendants asked the court to allow them to purchase the 1.7 acres from plaintiffs,. They claimed that removing the structures and rebuilding them somewhere else would create a severe hardship. Mr. Sculac and Ms. Walker testified, and they made three basic points.

117 First, Mr. Seulae is a contractor, and he built all the refuge's structures, the house, and the perimeter fence. He built the refuge's perimeter fence before Mrs. Sculac severed the 36.5-acre parcel from the original parcel. And he built all the structures when the Sculaes owned both parcels.

1 18 Second, although he hired a surveyor to establish the perimeter fence as the dividing line between the 36.5-acre parcel and the refuge's parcel, the surveyor "evidently didn't do it right." The first time he learned about the true dividing line between the 36.5-acre parcel and the refuge's parcel was when plaintiffs filed this lawsuit.

1 19 Third, the refuge did not have enough money or room elsewhere on the parcel to move the tigers and lions from the 1.7 acres. It would have cost about $38,400 to remove the structures from the 1.7 acres and about $210,000 to rebuild the cages elsewhere to conform to a new height requirement for the fencing that the federal government had imposed. And the refuge was operating at a net loss.

20 County set-back requirements left little or no room for such construction. No one else was willing to take the big cats, and defendants would have had to euthanize some of the animals that were endangered or threatened species.

121 Plaintiffs asked the court to order defendants to remove the fences and the animal pens and to restore the property to its "natural state." One of the plaintiffs testified that they wanted to raise livestock on the 36.5-acre parcel, to use the well on the property to water the livestock, and to build a shop.

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Cite This Page — Counsel Stack

Bluebook (online)
2014 COA 136, 356 P.3d 986, 2014 WL 5033277, Counsel Stack Legal Research, https://law.counselstack.com/opinion/graham-v-jules-investment-inc-coloctapp-2014.