Daily Development for
June 26, 1996

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law

Here's a few Adverse Possession tidbits - maybe the three together will make a light meal.

ADVERSE POSSESSION; CONSTRUCTIVE POSSESSION; MINERAL RIGHTS: Despite possession of the surface estate for property for the statutory period with color of title to both the surface and mineral estates, plaintiff had not adversely possessed the mineral estate when the mineral and surface estates of such property had been severed. Kriss v. Mineral Rights, Inc. 911 P.2d 711 (Colo. App. 1996). Plaintiff in this case had been in possession of the surface estate since 1947 under a Sheriff's Deed which made no mention that mineral rights below the surface estate had been reserved to another party. Plaintiff contended that the Sheriff's Deed along with a non-recorded foreclosure decree created color of title to all of the property, thus merging the surface estates and mineral estates so that his possession of the surface estate since 1947 also constituted possession of the mineral estates for purposes of the Colorado Adverse Possession Statute. The court held that in order to possess a severed mineral estate adversely against the owner, one must take actual physical possession of the minerals under the surface or so exclude the owner that he or she cannot enter upon the land to drill.

Comment: This is an interesting interpretation of constructive adverse possession. Normally, with color of title, one does not have to establish actual possession of every element of the claimed property. But, since the mineral estate was an entirely separate estate, adverse possession of the surface property was not "possession" of the mineral estate at all, even such possession sufficient to trigger a constructive possession claim.

Comment 2: Since adverse possession is not a good title clearing mechanism for mineral estates, your state might want to consider the Uniform Dormant Mineral Interests Act, which would assist in this endeavour in appropriate circumstances.

ADVERSE POSSESSION; HOSTILITY REQUIREMENT; "ACTUAL, OPEN AND NOTORIOUS REQUIREMENT": Planting a row of trees without continuous cultivation or maintenance does not satisfy the requirements for adverse possession. Anderson v. Hudak, 907 P.2d 305 (Wash. Ct. App. 1995).

ADVERSE POSSESSION; TAXES: Adverse possessor claiming under statute which allows a claim of adverse possession following seven years of payment of taxes is required not simply to pay such taxes for seven years, but instead to occupy the property for a full seven years between first payment of taxes and the commencement of such suit for adverse possession. Peters v. Smuggler-Durant Min. Corp. 910 P.2d 34 (Colo. App. 1995). Smuggler-Durant owned land on which there were several cabins. In March of 1982, Peters acquired a quitclaim deed from Smuggler-Durant's lessee claiming to transfer "a cabin and land beneath" located on the property. On September 23, 1983, Peters first paid taxes on the property. On February 22, 1990, Peters filed a claim against Smuggler-Durant for adverse possession. The court held that under the Colorado adverse possession statute, despite the payment of taxes for seven years, Peters could not successfully state a claim until he had actually continued in possession for a full seven years. Therefore, the court held that at the time of filing Peters had not satisfied the statute and did not have a right of adverse possession.

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