A Judge Runs Through It: Family Loses Land by Adverse Possession to Colorado Judge

Former judge Richard McLean and attorney Edith Stevens appear to have had an eye on some land of neighbors Don and Susie Kirlin for some time. They got their wish when another judge, District Judge James C. Klein ruled that a mysterious path that appeared on the property gave them possession of 34 percent of the Kirlins’ lot on Hardscrabble Drive.

Judge Klein relied heavily on the appearance of a small dirt path on the property to show their open and uncontested use of the property for two decades. While he admitted that this does not make him popular, Judge McLean insisted that “The court’s duty is to ignore the public perception of the case and apply the facts as he finds them to be.”

The Kirlins, however, submitted documents, eye witness testimony, and photographs that they said showed that the path was faked and only recently was placed on the property for legal purposes.

Klein, however, believed Judge McLean’s evidence, including his own photographs and eyewitness testimony. Klein further accused the Kirlins of trying to “purposefully mislead” the court and being “disingenuous in their assertions.”

Yet, Klein did not endorse the actions of Judge McLean either. “This court wants to make it very clear that it has never condoned morally the actions of plaintiffs in pursuing this matter. The court is bound by its oath to office to apply the law to the facts presented to it despite the face that its rulings, and the law that it is required to follow, may be controversial and/or unpopular in the community.”

This is not the worst such property fight involving a lawyer or a judge, click here.

Adverse possession cases tend to be particularly unpopular with the public. It tends to reward squatters, but it is meant to allow land to be fully utilized. Yet, for some owners, it means that they have to regularly monitor and act on any incursions into their property. The result is that businesses and owners will often bar entry or use of land to avoid claims of constructive easements or adverse possession.
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7 thoughts on “A Judge Runs Through It: Family Loses Land by Adverse Possession to Colorado Judge”

  1. Bob/Patty C:

    I am with you. This is judicial taking not lawful taking.

  2. How can a path become anything more than a Prescriptive Easement?

  3. Adverse possession?! No way! I thought this was a property law 1 fantasy that never happened in the real world. Imagine the look of The Kirlins when they found out such a law even existed!

  4. JT:

    Land grabs are never very pretty and adverse possession is just a vestige from our frontier past, where land was left abandoned for years which complicated ownership chains and tax collection. In any event, sometimes a judge has to be creative to effect justice. In this case the Judge certainly could have made a factual finding that the path did not meet the requisite time of existence and thus denied the Petition. In addition, he could have limited his ruling to the path itself without providing an appreciable access rendering the taking worthless. This would have certainly won him the Shakespeare award for the ruling most like Portia’s in the “Merchant of Venice,” another situation (albeit fictional)involving the oppressive application of law.

    The easiest ruling would have been to deny the Petition on well established equitable principles which holds that, although equity will not “aid those who slumber on their rights” (a la the Kirlins), it will likewise require that those seeking equity come with “clean hands.” Since former Judge McClean and current lawyer Stevens may be living together without the benefit of marriage, my guess is that Colorado law does not countenance such a meretricious relationship and thus these litigants come to Court with unclean hands. Not a particularly enlightened view as modern sensibilities go, but few would doubt it is an equitable and just result.

    While not routinely admitted, it is true that sometimes, in order to effect justice, you do have to keep two sets of books.

  5. I smell an appeal in this case to get it in front of one or more “disinterested” judges. This is an example of how attorneys get a bad reputation. What was on that property that made it so valuable to this judge? Was it waterfront property? An especially good view of the mountains?? If they do win on appeal, can the property owners sue the judge for abuse of process or perjury? Adverse possession is one area that society could do without.

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