24CA0397 Wilson v Howe 02-06-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA0397 Jefferson County District Court No. 23CV30230 Honorable Philip J. McNulty, Judge
Ingrid Stitt Wilson, in her official capacity as Trustee of the Last Straw Revocable Living Trust,
Plaintiff-Appellant,
v.
Collin Howe, the Public Trustee of Jefferson County,
Defendant-Appellee.
JUDGMENT AFFIRMED IN PART AND REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS
Division V Opinion by JUDGE SCHOCK Freyre and Sullivan, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced February 6, 2025
Wilson Law Office P.C., Brian Herbert Wilson, Jr., Bailey, Colorado, for Plaintiff-Appellant
Walsh Law, P.C., Thomas A. Walsh, Marilana S. Walsh, Golden, Colorado, for Defendant-Appellee ¶1 Plaintiff, Ingrid Stitt Wilson, in her capacity as trustee of the
Last Straw Revocable Living Trust (the Trust), appeals the district
court’s entry of summary judgment in favor of defendant, Collin
Howe, on the Trust’s claims for lot line acquiescence, easement by
estoppel, irrevocable license, and adverse possession. We reverse
the judgment on the adverse possession claim but otherwise affirm.
I. Background
¶2 The Trust and Howe own two adjacent properties, which we
will refer to as the Trust Property and the Howe Property. The Trust
Property is a generally square parcel of property with a cabin on it,
identified as “Parcel A” and “2 story wood frame house,”
respectively, on the map below. The Howe Property is a much
larger property that wraps around the Trust Property to the east
and south, identified as “Unplatted” on the map below. A driveway
runs across the Howe Property from the southern boundary of the
Trust Property to a public road south of the Howe Property.
1 ¶3 The Trust Property was owned by Jason Yardley from 1967 to
1999. For most of the time that Yardley owned the property, there
was no driveway, and he accessed the cabin via a walking path from
what is now Fisher Road on the north side of the property.
According to Yardley, he used the area around the cabin — as
2 depicted in the below map — as his own for more than twenty years
because he believed it was part of his property.1
¶4 Over time, various improvements were constructed on the area
surrounding the cabin. In 1976, Yardley built a goat shed
southwest of the cabin — outside the boundary of the Trust
Property but within the area Yardley believed was his. That shed
was later converted into a sleeping cabin, lived in by Yardley’s son,
and, more recently, used for storage by Howe’s brother. In the early
1980s, Yardley’s wife constructed a well for household purposes,
1 The Trust referred to this area as a “roughly crescent moon
shaped area” in its motion for summary judgment.
3 just east of the northern boundary of the Trust Property. From
1992 to 1999, Yardley allowed a friend, Kelley Anne Winston, to live
in the cabin. Winston made improvements to the cabin, including
the addition of a deck, and placed a large propane tank east of the
cabin, just outside the eastern boundary of the Trust Property.
¶5 The driveway to the cabin (which crosses the Howe Property)
was constructed sometime between 1992 and 1998. Although the
circumstances surrounding the construction of the driveway are
unclear, Yardley understood that it was built by Winston’s husband
“by an agreement with [the prior owner of the Howe Property] for
the benefit of [the Trust Property].” The driveway connects the
public road to the cabin and, according to Yardley, serves no
purpose other than to access the cabin. Around the same time, a
barbed wire fence was placed along the east side of the driveway.
¶6 Yardley sold the Trust Property to Winston in 1999. Two years
later, in 2001, Howe purchased the Howe Property. In connection
with that purchase, the prior owner of the Howe Property and
Winston entered into a “Permissive Use Drive Agreement,” which
granted Winston “permissive use” of the driveway “for residential
use and good neighbor ease of access use only.” The Agreement
4 stated that “no transfer of property or easement [was] involved in
this agreement.” Howe also received a land survey plat, dated 1992
and recorded in 2001, which noted that “temporary verbal
permission has been given for a roadway for the rent[e]r of [the
Trust Property] to access said lot . . . across [the Howe Property].”
¶7 In 2003, Winston died, and Howe installed a locked gate that
prevented use of the driveway by anyone other than Howe and his
family. Yardley took back possession of the Trust Property in 2005
and, until 2020, travelled there annually to perform maintenance
and upkeep. The extent to which Yardley used the driveway during
that timeframe is in dispute. But on at least one occasion in 2015,
Howe allowed Yardley to use the driveway to fix the cabin roof.
¶8 In 2020, Yardley received a sheriff’s deed to the Trust Property
and sold it to the Trust. At that time, the cabin was in disrepair,
and Howe agreed the Trust could use the driveway to work on the
cabin. But the parties dispute the scope of that permission. Howe
maintains that he granted the Trust temporary permission to use
the driveway only for purposes of repairing the cabin roof. Wilson,
the trustee of the Trust, claims that Howe “promised that he would
not cut off the driveway while [the Trust] was working on the cabin.”
5 ¶9 The Trust’s work on the cabin continued for more than two
years and included the addition of a second story. But the Trust
ran into permitting problems and construction was suspended. In
March 2023, Howe locked the gate to the driveway and denied the
Trust further access over the driveway to the Trust Property.
¶ 10 The Trust filed a quiet title action, asserting claims for (1) lot
line adjustment by acquiescence, see § 38-44-109, C.R.S. 2024;
(2) easement by estoppel; (3) irrevocable license; (4) prescriptive
easement; and (5) adverse possession. Together, these claims
sought to establish the fence along the driveway as the boundary
between the Trust Property and the Howe Property (the first claim);
secure a right of access over the driveway (the second and third
claims); and expand the Trust Property to include the surrounding
area historically used by Yardley (the fourth and fifth claims).
¶ 11 Howe moved for partial summary judgment on all claims
except the adverse possession claim. The Trust moved for partial
summary judgment on all claims except lot line acquiescence.
¶ 12 The district court entered a single order resolving the parties’
cross-motions, primarily in favor of Howe. The court granted
summary judgment in Howe’s favor on the Trust’s claims for lot line
6 acquiescence, easement by estoppel, and irrevocable license. It
concluded that there was no genuine issue of material fact that
(1) the fence was never recognized as a boundary line between the
properties; and (2) any agreement for the Trust and its predecessors
to use the driveway was permissive and temporary, not permanent.
¶ 13 As to the claims for prescriptive easement and adverse
possession, the court divided the disputed area into five
components: the cabin encroachments, the goat shed, the propane
tank, the well, and the area around the cabin. The court granted
summary judgment in favor of Howe as to the goat shed and the
area around the cabin. It granted summary judgment in favor of
the Trust as to the propane tank and the well. And it denied
summary judgment as to the encroachments. Howe later confessed
judgment as to adverse possession of the encroachments.
¶ 14 The Trust filed a motion for reconsideration of the court’s
summary judgment ruling. Among other things, the motion
included a new affidavit from Daryl L. Jackson, who lived at the
Trust Property with Winston from 1991 to 1999. In the affidavit,
Jackson claimed that he built a septic tank for the prior owner of
the Howe Property in exchange for a driveway easement but that
7 the owner “doubled back on his deal” and did not record the
easement. The Trust also argued in its motion that the district
court had erred by granting summary judgment against it on its
adverse possession claim as to the goat shed and area around the
cabin, when Howe had not moved for summary judgment on that
claim. The district court denied the motion for reconsideration.
¶ 15 The Trust then filed a C.R.C.P. 59 motion, arguing that the
summary judgment order did not sufficiently define the boundaries
of the property granted to each party to allow for complete
adjudication. The district court denied that motion as well.
II. Summary Judgment
¶ 16 The Trust argues that the district court erred by granting
summary judgment in favor of Howe on the Trust’s claims for lot
line acquiescence, easement by estoppel, irrevocable license, and
adverse possession of the goat shed and the area around the cabin.2
2 The Trust does not challenge the summary judgment on its claim
for prescriptive easement other than to argue that the district court misunderstood the claim as including the driveway. To the extent the Trust complains that the court granted summary judgment against it on a claim it did not make, any error is harmless.
8 A. Standard of Review
¶ 17 We review an order granting summary judgment de novo,
applying the same standard as the district court. Poudre Sch. Dist.
R-1 v. Stanczyk, 2021 CO 57, ¶ 12. Summary judgment is proper if
there is no genuine issue as to any material fact and the moving
party is entitled to judgment as a matter of law. C.R.C.P. 56(c).
¶ 18 The moving party bears the initial burden of showing the
“absence of evidence in the record to support the nonmoving party’s
case.” Cont’l Air Lines, Inc. v. Keenan, 731 P.2d 708, 712 (Colo.
1987). If the moving party meets this burden, the burden shifts to
the nonmoving party to establish a triable issue of fact. Id. at 713.
¶ 19 In determining whether this standard is satisfied, we give the
nonmoving party “the benefit of all favorable inferences that may
reasonably be drawn from the undisputed facts and resolve[] all
doubts against the moving party.” City of Fort Collins v. Colo. Oil &
Gas Assoc., 2016 CO 28, ¶ 8. But in opposing summary judgment,
the nonmoving party may not “rest on its mere allegations or
denials of the opposing party’s pleadings.” Id. Instead, it must
“provide specific facts demonstrating a genuine issue for trial.” Id.
9 B. Lot Line Acquiescence
¶ 20 The Trust first contends that the district court erred by
granting summary judgment on its lot line acquiescence claim. It
argues that there is a genuine factual dispute as to whether the
fence along the driveway was recognized as the boundary line
between the Trust Property and the Howe Property. We disagree.
¶ 21 Under the boundary by acquiescence doctrine, a physical
barrier such as a fence can replace the property line as the legal
boundary between two properties when the neighboring property
owners “mutually treat that physical barrier — and not the property
line — as the boundary between the properties for over twenty
years.” Cronk v. Bowers, 2023 COA 68M, ¶ 9; see also § 38-44-109.
To establish a boundary by acquiescence, the claimant must prove
(1) the adjacent owners’ mutual acquiescence in the fence as the
boundary line between the properties (2) for twenty years or more.
Cronk, ¶ 11. Mutual acquiescence may be demonstrated by the
claimant’s “actual possession” of the disputed property. Id.
¶ 22 Mutual acquiescence is generally a question of fact. Id. at
¶ 12. But as with any factual question, summary judgment may be
10 appropriate if the claimant is unable to point to any evidence
demonstrating a genuine issue for trial. See City of Fort Collins, ¶ 8.
¶ 23 The undisputed evidence — consisting of two different land
surveys, one conducted in 1992 and the other in 2023 — shows the
property lines between the Trust Property and the Howe Property.
As indicated on the below map, which the Trust attached to its
summary judgment briefing, the property lines for the Trust
Property end before the fence even begins.3 In other words, the
fence does not run between the two properties, as a property line
would; it runs solely across the Howe Property. Because no portion
of the Trust Property is on the other side of the fence, the fence, by
definition, cannot be a boundary line between the properties.
3 The Trust’s complaint attaches a map with a diagram of the fence
continuing north parallel to the Trust Property lot line. But Wilson’s affidavit describes the fence as “on the lower driveway . . . bound[ing] the driveway from the rest of the [Howe Property].” And in any event, the Trust clarified in its summary judgment briefing that its lot line acquiescence claim applied only to the portion of the property west of the fenced area along the driveway.
11 ¶ 24 Moreover, in Howe’s affidavit, Howe explained that the fence
was built to contain livestock on a portion of the Howe Property and
that, to his knowledge, no one had ever claimed the fence was a
boundary line between the properties. See Kelly v. Mullin, 413 P.2d
186, 188 (Colo. 1966) (affirming finding that a fence was “merely a
barrier and not a boundary line” where it served the purpose of
separating distinct portions of the property). As Howe asserted in
his affidavit, the fence “is not near any boundary between the
properties” but is “situated in the middle of [the Howe Property].”
12 ¶ 25 In an attempt to create a genuine issue of material fact, the
Trust relies exclusively on the existence of the fence. But the “mere
existence of a fence with evidence of nothing more is insufficient to
sustain a finding that the fence operates as a boundary by
acquiescence.” Terry v. Salazar, 892 P.2d 391, 393 (Colo. App.
1994), aff’d, 911 P.2d 1086 (Colo. 1996). And the Trust presented
no evidence that the property owners ever treated the fence as a
boundary line between their properties. Neither Wilson’s assertion
that the fence “looks like a boundary fence” nor Yardley’s statement
that the fence was “much closer to the actual boundary line [he]
understood” shows an agreement to treat it as such. Nor is there
any evidence that the Trust or its predecessors ever actually
possessed the property to the west of the fence. See Cronk, ¶ 11.
¶ 26 Indeed, beginning in 2001, the property owners’ course of
conduct indisputably indicates that they did not treat the fence as a
boundary line but rather understood that the driveway was on the
Howe Property. First, the Permissive Use Drive Agreement —
executed in 2001 by the parties’ predecessors — says so. That
agreement would have been unnecessary if the driveway was on the
Trust Property. Second, Howe consistently exercised control over
13 the driveway starting in 2003 when he installed a locked gate and
allowed others to use it only with his permission. Although Yardley
claims that Howe “cooperated with [his] using the road,” he does
not dispute that it was on Howe’s property. Third, Wilson asserts in
her affidavit that, in purchasing the Trust Property, she relied on
Howe’s “promise[] that he would not cut off the driveway” — a
promise that, again, implied the driveway was on his property.
¶ 27 Thus, even if the property owners had acquiesced in the fence
as the boundary line when it was built in the 1990s — and there is
no evidence that they did — any such acquiescence ended in 2001
when the Permissive Use Drive Agreement was executed, and
certainly by 2003 when Howe installed the locked gate. The Trust
therefore failed to show any genuine issue of material fact as to
whether the property owners mutually acquiesced in the fence as
the boundary line for the required twenty years. See Cronk, ¶ 11.
¶ 28 Because the Trust did not present any specific facts showing a
genuine issue for trial, the district court correctly granted summary
judgment against the Trust on its lot line acquiescence claim.
14 C. Easement by Estoppel
¶ 29 The Trust next argues that the district court erred by granting
summary judgment on its claim for an easement by estoppel across
the driveway, asserting that the Trust Property owners have long
relied on the driveway to access the cabin. We disagree that the
Trust established a genuine issue of material fact on this claim.
¶ 30 A claim for easement by estoppel has three elements: (1) the
owner of the servient estate permitted another to use the land
under circumstances in which it was reasonable to foresee that the
user would substantially change position believing that the
permission would not be revoked; (2) the user substantially
changed position in reasonable reliance on that belief; and
(3) injustice can be avoided only by recognizing an easement by
estoppel. Lobato v. Taylor, 71 P.3d 938, 950–51 (Colo. 2002).
¶ 31 In Howe’s motion for partial summary judgment, Howe
presented evidence that his predecessor’s permission for Winston to
use the driveway was temporary only. First, the 1992 land survey
states that “temporary verbal permission has been given for a
roadway” across the Howe Property. Second, the 2001 Permissive
Use Drive Agreement indicates that the use was “permissive” and
15 did not create any “transfer of property or easement.” Although the
Permissive Use Drive Agreement could not have extinguished an
easement by estoppel if one had already existed, it is some evidence
that the property owners at the time understood that the driveway
access was temporary and revocable. Together, this evidence
satisfied Howe’s initial burden of showing the absence of any
evidence to support a reasonably foreseeable belief by the Trust
Property owners that the permission would not be revoked. See id.
¶ 32 The Trust presented no evidence to the contrary. Indeed, the
Trust presented no evidence — at least not by anyone with personal
knowledge — of the circumstances of the original permitted use at
all. The closest it comes is Yardley’s affidavit. Yardley explained
that it was his “understanding” that Winston’s husband built the
driveway with the agreement of the Howe Property owner. But he
acknowledged that he “did [not] know about the road for a while”
and was “not sure exactly why they built the driveway.” See
C.R.C.P. 56(e) (“[A]ffidavits shall be made on personal
knowledge . . . .”). And in any event, Yardley said nothing about
whether the supposed agreement was temporary or permanent.
16 ¶ 33 There was also mention in both Wilson’s affidavit and Howe’s
deposition of an agreement between the prior property owners
under which Winston provided work on a septic system on the
Howe Property in exchange for driveway access.4 But neither
Wilson nor Howe has any personal knowledge of this purported
deal, having both purchased their properties years later. See USA
Leasing, Inc. v. Montelongo, 25 P.3d 1277, 1279 (Colo. App. 2001)
(concluding that affidavit was inadequate where it did not
affirmatively show that the affiant had any “personal knowledge of
the relevant facts”). Moreover, even if the parties’ secondhand
accounts of this agreement could be considered, the only evidence
as to its temporary or permanent nature was Howe’s testimony that
“no easement rights [or] permanent permission [were] granted.”
¶ 34 The Trust relies on the affidavit from Jackson that it
submitted with its motion for reconsideration, in which Jackson
said he built a septic system for Howe’s predecessor in exchange for
an easement. But because the Trust did not present this evidence
until after the entry of summary judgment, we may not consider it.
4 Winston was not technically an owner of the Trust Property until
1999, but we refer to her as an owner for the sake of simplicity.
17 See United States v. City of Golden, 2024 CO 43M, ¶ 77; McDonald
v. Zions First Nat’l Bank, N.A., 2015 COA 29, ¶ 85. To the extent
the Trust implies that the district court should have considered
Jackson’s affidavit in ruling on its motion for reconsideration, it
offers no persuasive explanation as to why it could not have
discovered this evidence sooner.5 See McDonald, ¶¶ 87-88.
¶ 35 We acknowledge that Winston’s construction of the driveway
and renovation of the cabin might support an inference that she
believed the access would not be revoked. But it is not enough that
Winston believed the permission would not be revoked. The Trust
must show that such belief — and a corresponding substantial
change in position — was reasonably foreseeable. See Lobato, 71
P.3d at 950-51. Given that the sole evidence in the record indicates
5 The Trust’s sole explanation for the belated submission of
Jackson’s affidavit is that “it took a number of months to locate him.” But it was the Trust that filed this lawsuit. If Jackson’s testimony was critical to its claim, it should have obtained that information before filing the lawsuit or, at a minimum, in the nine months between the filing of the complaint and the entry of summary judgment. Indeed, at the time of the summary judgment ruling, trial was scheduled to begin in four days. The Trust did not present the affidavit until nine days after that scheduled trial date.
18 that the permission was temporary and permissive, the Trust did
not demonstrate a genuine issue of material fact on this point.6
¶ 36 Nor did the Trust show a genuine factual dispute as to
whether an easement by estoppel arose from Howe’s permission for
Yardley or the Trust to use the driveway. As to Yardley, although
he says Howe “cooperated with [his] using the road” and he
“expected to be able to continue to use the road,” the only evidence
of Howe’s affirmative permission is Howe’s representation that he
only granted Yardley permission to use the driveway once “for a few
weeks so that he could patch the roof” on the cabin. There is also
no evidence that Yardley substantially changed his position in
reliance on a belief that the driveway access would not be revoked.
¶ 37 As to the Trust, there is evidence of reliance. Wilson and her
son attest that the Trust purchased the Trust Property based on
Howe’s assurances that he would allow them to use the driveway.
But even Wilson and her son characterize this promise as limited in
6 It is also not clear how the Trust asserts that Winston
substantially changed her position in reliance on the driveway access. Although she made improvements to the cabin, the driveway is not the only way to access the cabin. It is the easiest way, but Yardley used a different access point for decades.
19 time and scope: Howe would not cut off driveway access “while [the
Trust was] working on the cabin.” Such a conditional promise
cannot support an easement by estoppel — a permanent property
right — as a matter of law. See id. at 951 (“Whether reliance is
justified depends upon the nature of the transaction . . . .”)
¶ 38 Thus, the Trust presented no evidence demonstrating any
genuine factual dispute that it was reasonable for the Trust or its
predecessors to believe that their permission to use the driveway
would not be revoked. The district court therefore correctly granted
summary judgment on the Trust’s claim for easement by estoppel.
D. Irrevocable License
¶ 39 The Trust’s irrevocable license argument parallels its easement
by estoppel argument, and we reject it for the same reason.
¶ 40 Like an easement by estoppel, an irrevocable license arises
from the licensee’s reasonable and detrimental reliance on the
licensor’s promise to afford the licensee a particular right. See
Lobato, 71 P.3d at 951; State Dep’t of Highways v. Woolley, 696
P.2d 828, 831 (Colo. App. 1984). But the license becomes
enforceable only to the extent reasonably necessary to realize the
licensee’s reasonable expectations. Woolley, 696 P.2d at 831.
20 ¶ 41 Because the evidence provides no basis for a reasonable
expectation by the Trust or its predecessors that their right to use
the driveway would be permanent, it cannot support a claim for an
irrevocable license. See id. at 829-31 (holding that “Permanent
Right of Entry” was enforceable based on licensor’s representations
as to duration of license); Patzer v. City of Loveland, 80 P.3d 908,
911 (Colo. App. 2003) (“[O]rdinarily, the license is revocable at the
will of the licensor.”); Restatement (Third) of Prop.: Servitudes
§ 2.16 cmt. f (Am. L. Inst. 2000) (“Unless additional facts suggest
otherwise, it is assumed that the parties intended that the property
owner retain the right to revoke the license at any time.”).
¶ 42 Moreover, to the extent the Trust relies on an alleged promise
made by Howe’s predecessor to Winston, its claim fails for another
reason. Unlike an easement, a license is not a property right.
Hinsdale Cnty. Bd. of Equalization v. HDH P’ship, 2019 CO 22, ¶ 43.
It is instead a “personal privilege to do some act . . . upon the land
of another not involving possession of an estate or interest therein.”
Roaring Fork Club, LLC v. Pitkin Cnty. Bd. of Equalization, 2013 COA
167, ¶ 41 (citation omitted). Thus, even if Winston had an
irrevocable license to use the driveway, that right was personal to
21 Winston and did not pass to the Trust with the title to the Trust
Property. See Radke v. Union Pac. R.R. Co., 334 P.2d 1077, 1087
(Colo. 1959) (“Ordinarily a license is not assignable by the licensee
without the consent of the licensor . . . .”).
E. Adverse Possession
¶ 43 The Trust contends that the district court erred by granting
summary judgment on portions of its claim for adverse possession
because (1) Howe did not move for summary judgment on that
claim, and (2) the district court improperly divided the disputed
area into individual components rather than considering the area
as a whole. On this claim, we agree that the district court erred.
1. Sua Sponte Summary Judgment
¶ 44 The Trust moved for summary judgment on its claim for
adverse possession. Howe explicitly did not. To the contrary, Howe
confirmed in his motion for partial summary judgment that the
adverse possession claim was “not the subject of this Motion.” The
district court nevertheless granted summary judgment in favor of
Howe and against the Trust as to portions of the disputed area.
Under the circumstances of this case, we conclude this was error.
22 ¶ 45 A district court is not categorically precluded from entering
summary judgment sua sponte. Marks v. Gessler, 2013 COA 115,
¶ 52. But such a ruling is “unusual” and may be reversible error if
the rights of the party against whom summary judgment is entered
are not adequately protected. ISG, LLC v. Ark. Valley Ditch Ass’n,
120 P.3d 724, 730-31 (Colo. 2005). To protect the party that loses
its claim, the district court “must provide an adequate opportunity
to present legal argument and to assert contested facts that would
render summary judgment inappropriate.” Id. at 730.
¶ 46 The district court’s ruling on the adverse possession claim did
not afford the Trust this opportunity. That ruling was based
primarily on arguments made in Howe’s response to the Trust’s
summary judgment motion. None of those arguments were
included in Howe’s motion because Howe did not move for
summary judgment on that claim. See Wallman v. Kelley, 976 P.2d
330, 332 (Colo. App. 1998) (“An issue not raised by the moving
party in the [initial] motion or brief cannot serve as the basis for
summary judgment because the non-moving party is not put on
notice as to the need to present evidence concerning that issue.”).
23 ¶ 47 Although the Trust had the opportunity to respond to these
arguments in its reply in support of its own motion, it was solely in
the posture of asserting there was not a genuine issue of material
fact rather than that there was. In that posture, it had no reason to
“assert contested facts.” ISG, 120 P.3d at 730. Instead, it had to
show there were no such facts. Moreover, to the extent the Trust
did attempt to contest the facts asserted in Howe’s response
through supplemental affidavits, the district court struck those
affidavits as an attempt to raise new facts and arguments in a reply.
¶ 48 As one example, the district court granted summary judgment
for Howe with respect to the goat shed based on a theory first raised
in Howe’s response — that even if the Trust’s predecessors had
adversely possessed the shed before 2003, Howe regained
ownership by possessing it under the color of title and paying taxes
on it since then. See § 38-41-108, C.R.S. 2024. The Trust urged
the court not to consider this argument because it was not raised in
Howe’s pleadings. But because Howe had not moved for summary
judgment on this basis, the Trust had no notice that it needed to
present evidence to refute it. See Wallman, 976 P.2d at 332.
24 2. Division of Disputed Property
¶ 49 We also are not convinced that the district court’s ruling was
correct on the merits such that its procedural error was harmless.
See ISG, 120 P.3d at 731 (affirming sua sponte dismissal where
there were sufficient legal grounds for the dismissal); Union Ins. Co.
v. Hottenstein, 83 P.3d 1196, 1203 (Colo. App. 2003) (holding that
district court’s error in prematurely granting summary judgment
was harmless where that ruling was correct on the merits).
¶ 50 To obtain ownership of real property by adverse possession, a
claimant must prove that their possession was “actual, adverse,
hostile, under a claim of right, exclusive, and uninterrupted” for a
period of eighteen years. Trask v. Nozisko, 134 P.3d 544, 549 (Colo.
App. 2006); see also § 38–41–101(1), C.R.S. 2024. When the
boundaries of the land claimed by adverse possession are not
established by fences or other barriers, the adverse possessor may
claim only the land actually occupied. Trask, 134 P.3d at 549.
Whether possession is hostile, actual, exclusive, and adverse is a
question of fact. Lensky v. DiDomenico, 2016 COA 89, ¶ 22.
¶ 51 But actual occupancy does not require “constant, visible
occupancy or physical improvements on every square foot of the
25 parcel claimed.” Smith v. Hayden, 772 P.2d 47, 52 (Colo. 1989).
Instead, the adverse possessor “need only act as the average
landowner would in utilizing the land for the ordinary use of which
it is capable.” Schuler v. Oldervik, 143 P.3d 1197, 1203 (Colo. App.
2006). The nature of the property is therefore “critical” to what
constitutes actual possession. Smith, 772 P.2d at 55. Any “actual
visible means” that give notice of the exclusion of others and
dominion over the property is sufficient. Id. at 52 (citation omitted).
¶ 52 Thus, multiple physical improvements on a single disputed
parcel of property can prove actual occupancy of the entire parcel.
See id. at 55 (holding that plaintiff’s maintenance of a drainage
ditch on the rear portion of property and use of the front portion “as
a driveway, parking, picnic and play area” demonstrated actual
occupancy of entire parcel); Holland v. Sutherland, 635 P.2d 926,
928 (Colo. App. 1981) (holding that “the existence of a small water
spigot and a 24-30 inch high gas meter,” together with the storage
of equipment on the property, was sufficient to support a finding of
actual possession); cf. Concord Corp. v. Huff, 355 P.2d 73, 76 (Colo.
1960) (holding that the erection of a TV antenna on a portion of a
ten-acre pasture did not constitute possession of the property).
26 ¶ 53 Here, the Trust asserted a claim of adverse possession of the
entire “crescent moon shaped area” around the cabin, as depicted
in the diagram attached to Yardley’s affidavit. Although the Trust
described the area as containing several improvements — including
the cabin, a goat shed, a propane tank, a well, and an outhouse —
its motion made clear that its claim encompassed the entire area.
The district court, however, separated each of the individual
improvements from the land itself. In doing so, it concluded that
there was no genuine factual dispute that the Trust’s predecessors
had adversely possessed the propane tank and well but not the
“crescent-shaped area” in which the propane tank and well were
located or the goat shed that was also located within that area.
¶ 54 The district court’s analysis effectively required the Trust to
show “constant, visible occupancy or physical improvements on
every square foot of the parcel claimed.” Smith, 772 P.2d at 52. For
example, the court relied on Trask, 134 P.3d at 550, to conclude
that Yardley’s activities on the disputed area would not put the
Howe Property owners on notice that Yardley was making use of the
land. But the court’s rulings with respect to the propane tank and
well undermine this conclusion. The court also acknowledged the
27 evidence that the Trust’s predecessors had used the goat shed from
1976 to 2003. The use of the propane tank, well, and goat shed
created a genuine issue of material fact as to whether the Howe
Property owners had notice that the Trust’s predecessors were
making use of at least some portion of the disputed land. See id.
¶ 55 We also disagree with the district court’s conclusion that
Yardley’s affidavit did not establish a triable issue as to whether
Howe and his predecessors had notice of Yardley’s use of the
disputed area. See id. at 549. Most significantly, Yardley built a
shed on the area, which was later converted to a sleeping cabin and
served as Yardley’s son’s home for more than ten years. See id. at
550 (noting that “the construction of a flower or vegetable garden
and a protective fence . . . certainly would put the owners on notice
of the use,” and “plant[ing] irises and stack[ing] wood . . . might be
sufficient”). Beyond that, Winston parked cars, stored property,
and in addition to the propane tank, placed gas lines and water
lines in the area. See Smith, 772 P.2d at 55. The primary issue in
Trask was not that the claimed uses were insufficient to put the
owners on notice; it was that the uses were either not on the
28 disputed property or not for the full statutory period. See Trask,
134 P.3d at 549-50. Neither of those elements is at issue here.
¶ 56 None of this means that by showing use of any portion of the
land, however small, the Trust was necessarily entitled to all of it.
See Concord Corp., 355 P.2d at 77 (“The placing of a few
improvements or structures is not a taking of possession
thereof . . . .”). That is particularly true where, as the district court
noted, the disputed area “appears to be arbitrarily designed to give
[the Trust] certain required setbacks.” See Trask, 134 P.3d at 550.
¶ 57 But the specific boundaries of the area that the Trust or its
predecessors adversely possessed, if any, is itself a material factual
dispute. Indeed, consistent with Howe’s decision not to move for
summary judgment on the adverse possession claim, he asserted in
his response to the Trust’s summary judgment motion that the
location of the disputed property presented a factual dispute. We
agree. Yardley’s affidavit describing his use of the surrounding area
his map outlining the area of use, and the district court’s rulings as
to the propane tank, well, and goat shed all raise a genuine issue of
material fact as to (1) whether the Trust and its predecessors
29 adversely possessed the area surrounding the cabin; and (2) if so,
the boundaries of the area they adversely possessed.
¶ 58 We therefore reverse the summary judgment against the Trust
on its claim for adverse possession of the crescent-shaped area
around the cabin, including the goat shed, and we remand for
further proceedings on that claim. In doing so, we express no
opinion on the merits of Howe’s argument under section 38-41-108.
III. Post-Summary Judgment Proceedings
¶ 59 The Trust makes various references throughout its brief to its
motion to reconsider and its motion for post-trial relief under
C.R.C.P. 59. But the Trust does not develop any argument
concerning the denial of these motions independent of its
arguments as to the summary judgment order. We therefore do not
consider the district court’s denial of the Trust’s motion for
reconsideration or its Rule 59 motion. See Woodbridge Condo.
Ass’n v. Lo Viento Blanco, LLC, 2020 COA 34, ¶ 41 n.12 (“We don’t
consider undeveloped and unsupported arguments.”), aff’d, 2021
CO 56. As to the Trust’s argument that the court should have more
precisely defined the boundaries of the area adversely possessed,
we have noted above that this issue presents a factual dispute.
30 ¶ 60 The Trust also takes issue with the district court’s demeanor
during a brief hearing on what was supposed to be the first day of
trial, four days after the summary judgment ruling. It asserts that
the court’s comments indicated bias. We disagree. We see nothing
in the record to indicate that the court acted inappropriately. It
simply made the eminently reasonable point that, if the Trust
intended to move for reconsideration of the summary judgment
ruling, it did not make sense to proceed to trial before that motion
was filed. To the extent the Trust bases its claim of bias on the
district court’s rulings, that claim also fails. See Schupper v. People,
157 P.3d 516, 521 n.5 (Colo. 2007) (“[R]ulings of a judge, although
erroneous, numerous and continuous, are not sufficient in
themselves to show bias or prejudice.”) (citation omitted).
IV. Disposition
¶ 61 The summary judgment on the Trust’s adverse possession
claim is reversed, and the case is remanded for further proceedings
consistent with this opinion. The judgment is otherwise affirmed.
JUDGE FREYRE and JUDGE SULLIVAN concur.