Kroulik v. Knuppel

634 P.2d 1027, 70 Oil & Gas Rep. 508, 1981 Colo. App. LEXIS 818
CourtColorado Court of Appeals
DecidedSeptember 10, 1981
Docket81CA0001
StatusPublished
Cited by9 cases

This text of 634 P.2d 1027 (Kroulik v. Knuppel) 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
Kroulik v. Knuppel, 634 P.2d 1027, 70 Oil & Gas Rep. 508, 1981 Colo. App. LEXIS 818 (Colo. Ct. App. 1981).

Opinion

*1029 KIRSHBAUM, Judge.

Defendants, Raymond F. Knuppel, Jr. and Burnett Construction Co. (Burnett), appeal from a judgment entered by the trial court granting title to plaintiffs, Charles W. Kroulik and Claire L. Kroulik, and plaintiffs cross-appeal the trial court’s award of damages and assessment of costs. We modify the trial court’s judgment in part and, as modified, affirm.

In 1944, plaintiffs acquired certain real property described by the conveyance as located east of the east bank of the Animas River. In 1973, Knuppel acquired property adjacent to plaintiffs’ land by a deed which described his property as lying west of the east bank of the Animas River. Knuppel’s deed contained courses and distances locating the east bank of the Animas River, which description placed the boundary between the parties’ properties on the east side of the gravel bar in question and within the described boundaries of Knuppel’s property. Thus, Knuppel became the record owner of the disputed property in 1973.

Knuppel leased the gravel bar to Burnett in 1976, and Burnett conducted gravel mining operations there until 1977. Plaintiffs instituted this action in 1977. The complaint alleged, inter alia, that plaintiffs owned the disputed land and that defendants “have mined and removed minerals from plaintiffs’ property without plaintiffs’ permission and without accounting and paying for the value of the minerals.” The prayer for relief sought damages from both defendants caused by unauthorized removal of gravel and destruction of property.

The trial court concluded that plaintiffs had acquired title to the property by adverse possession and by the doctrine of accretion, and that defendants had damaged plaintiffs’ property by removing gravel and by destroying certain vegetation, including a 73-year old pine tree. Defendants were ordered to render an accounting of the gravel removed from the property, and the parties subsequently stipulated as to the amount of gravel removed and the royalty payments received by Knuppel from Burnett.

At the commencement of the hearing on damages, the trial court ruled that the amount of royalties received by Knuppel was the proper measure of damages. Plaintiffs then made an offer of proof of evidence to support their theory that they were entitled to an award of damages based on the value of the gravel extracted less the extraction costs. The trial court entered judgment for plaintiffs in the amount of $14,189.54 for the gravel extraction, $1,500 for destruction of the pine tree, $10 for damage to real property, and costs of $114.35.

I. DEFENDANTS’ APPEAL

Defendants first contend that the evidence does not support the conclusion that plaintiffs actually occupied the disputed property for eighteen years. We disagree.

A party asserting title to property by adverse possession must prove actual possession of the property during the statutory prescriptive period. Segelke v. Atkins, 144 Colo. 558, 357 P.2d 636 (1960); see § 38-41-101, C.R.S.1973. Actual possession is established when the property is used in a manner commensurate with its particular characteristics. See Anderson v. Cold Spring Tungsten, Inc., 170 Colo. 7, 458 P.2d 756 (1969).

Charles Kroulik testified at’ trial that he had always considered the east bank of the Animas River to be at the west end of the gravel bar; that since 1944 he had procured sand and gravel from that bar for his own use; that he had leased the property to others, including Burnett, for gravel operations; and that he had often fished from the edge of the gravel bar. These indicia of occupation, when considered together, provide a sufficient basis for the trial court’s conclusion that plaintiffs satisfied their burden of establishing ownership of the disputed property by adverse possession. See Anderson v. Cold Spring Tungsten, Inc., supra; Riggs v. McMurtry, 157 Colo. 33, 400 P.2d 916 (1965).

*1030 There is no merit to defendants’ contention that the evidence does not support the trial court’s conclusion that plaintiffs are entitled to ownership of the disputed property pursuant to the doctrine of accretion. See Hall v. Brannan Sand & Gravel Co., 158 Colo. 201, 405 P.2d 749 (1965); Smith v. Town of Fowler, 138 Colo. 359, 333 P.2d 1034 (1959).

Defendants also contend that the trial court erred in awarding damages for the destruction of the pine tree on the basis of the aesthetic value of the tree. We agree in part, and modify the damages awarded for the loss of the tree.

Damage to growing trees is generally measured by the diminution in the market value of the real property. Zwick v. Simpson, 193 Colo. 36, 572 P.2d 133 (1977); see Bobrick v. Taylor, 171 Colo. 375, 467 P.2d 822 (1970). However, aesthetic value may be considered in establishing the replacement cost of certain unique property. See Rector, Warden and Vestry of St. Christopher's Episcopal Church v. C. S. McCrossan, Inc., 306 Minn. 143, 235 N.W.2d 609 (1975); Huber v. Serpico, 71 N.J.Super. 329, 176 A.2d 805 (1962). Nor is the only value of a growing tree its value as potential lumber. See, e. g., Manitou & Pike’s Peak Ry. v. Harris, 45 Colo. 185, 101 P. 61 (1909).

The tree here involved was a 50-foot-tall pine tree located on a promontory overlooking the river. No other trees of that size were visible in that locale. Several witnesses testified with respect to the particular grace, majesty and beauty of this isolated tree in that setting. We conclude that the trial court did not commit error here by considering aesthetic value to determine the amount of damages to which plaintiffs were entitled as a result of the defendants’ uprooting of the pine tree.

However, the only evidence of the value of the tree introduced at trial was the uncontroverted testimony of an expert witness who valued the pine at $8.40 for lumber and $229.63 for aesthetic value. There is no evidence to support the trial court’s award of $1,500 as damages for the destruction of the pine tree. Findings not supported by any evidence cannot stand on appeal. Rohs v. Hickan, 473 P.2d 732 (Colo.App.1970). As the only evidence offered respecting the pine tree’s value was not contradicted, and as we affirm the trial court’s conclusion that plaintiffs are entitled to damages for the loss of the tree, the judgment shall be modified to reflect damages of $238.03 for such loss.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

H. Jewell Tindell v. Callie A. West
Court of Appeals of Tennessee, 2012
O'CONNOR v. Rolfes
899 P.2d 227 (Colorado Court of Appeals, 1994)
Sherrell v. Selfors
871 P.2d 168 (Court of Appeals of Washington, 1994)
Keitges v. VanDermeulen
483 N.W.2d 137 (Nebraska Supreme Court, 1992)
Howard v. Wills
601 N.E.2d 515 (Ohio Court of Appeals, 1991)
Davis v. Cramer
793 P.2d 605 (Colorado Court of Appeals, 1990)
McAlonan v. U.S. Home Corp.
724 P.2d 78 (Colorado Court of Appeals, 1986)
Holland v. Sutherland
635 P.2d 926 (Colorado Court of Appeals, 1981)

Cite This Page — Counsel Stack

Bluebook (online)
634 P.2d 1027, 70 Oil & Gas Rep. 508, 1981 Colo. App. LEXIS 818, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kroulik-v-knuppel-coloctapp-1981.