by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
randolphp@umkc.edu

ADVERSE POSSESSION; MERGER: Common ownership of two parcels, even for as little as fifteen days, eradicates the significance of one hundred years prior establishing a boundary by adverse possession.

Salazar v. Terry, 911 P.2d 1086 (Colo. 1996).

Plaintiff discovered that the fence that she and her neighbors believed to divide their property was in fact not on the record boundary line. She brought suit to quiet title to her interest in the property up to the record line rather than the fence. Defendant claimed adverse possession as predecessors to both parties had been using this property up to the fence line for the past one hundred years. The two parcels had been under common ownership for a period of fifteen days in 1977.

The Colorado Supreme Court held that the period of common ownership eliminated any adverse possession claim and cancelled any impact the fence had as an external boundary. Instead the fence functioned to divide the area only internally. Therefore, the period for adverse possession began to run again upon separation of the parcels at the end of the fifteen-day common ownership period.

Consequently, under Colorado law, the period for adverse possession had not been met. The court noted that this decision was justified in part by the doctrine of merger as it applies to easements, and therefore, the common ownership, regardless of owner's intent or other issues, served to automatically extinguish the legal meaning of the fence.

Comment: The modern approach to merger has been to use it as a surgical tool, not a meatcleaver, and to apply it to resolve title issues only when consistent with overall fairness and particularly with the intent of the party in whom merger was alleged to have occurred. It probably was not helpful to apply the merger doctrine, however. We simply have a case of written boundary descriptions controlling where there is inadequte evidence of contrary intent.

The facts in this case indicate that a prior owner of defendant's tract had acquired plaintiff's tract for fifteen days before selling it to plaintiff's predecessor. Thus the "title out" to plaintiff's predecessor described the property that the common owner owned by adverse possession prior to the joining of the two tracts in one owner. This land was separated by a fence from the rest of the land conveyed to plaintiff's predecessor. It would appear that the appropriate action to resolve this problem would be reformation. The probable intent of the parties to the deed from the common grantor was to transfer according to the boundaries marked by the fence. It is likely, however, that absence of the original parties to that deed and the time passing since that deed was conveyed made it difficult to make out a suit for reformation.

Without clear evidence of the intent of the parties at the time of the deed from the common grantor, it does seem difficult in this case to honor the adverse possession claim.

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