978-1285770178 Case Printout Case CPC-29-06 Part 2

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We review a grant of summary judgment de novo. Brodeur v. American Home Assurance Co., 169 P.3d 139, 146

Summary judgment is appropriate only when the pleadings, affidavits, depositions, or admissions establish that there

is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. C.R.C.P.

In Doty, the plaintiff’s first predecessor in interest occupied and used the disputed property for a period in excess of

the statutory period, and then sold it to plaintiff’s second predecessor in interest. During negotiations for a later sale

of the adjacent and encroached-upon property to the defendants, the problem was discovered, and the defendants

obtained a disclaimer from the first predecessor in interest, which the defendants relied upon for title to the disputed

property. A division of this court rejected the disclaimer, stating:

[W]e do not agree with defendants’ contention that the disclaimer signed by Mrs. Thomas [the first predecessor]

prior to her execution of the quitclaim deed to plaintiff divested her of title to the property.

Title to property acquired by adverse possession matures into an absolute fee interest after the statutory prescrip-

tive period has expired. Section 38–41-101, C.R.S.1973; Spring Valley Estates, Inc. v. Cunningham, [181 Colo.

P.2d 582 (1968).

Hence, since title to the disputed property vested in Mrs. Thomas long before the disclaimer was executed here,

such disclaimer had no legal effect. See Crawford v. French, supra; McCain v. Cook, supra.

Doty, 632 P.2d at 645–46; see also Spring Valley Estates, Inc. v. Cunningham, 181 Colo. 435, 438, 510 P.2d 336,

[5] The owner’s theory, which formed the express basis for the motion for summary judgment, was that, while the

seller’s occupancy of the disputed property may have been initially hostile, it became permissive upon the entry of

the agreement described in the owner’s and the seller’s affidavits. See generally Smith, 772 P.2d at 55-57. Indeed, the

owner’s theory here is a variation on the Segelke theme. In that case, the initial occupancy was permissive under a

lease and became adverse following the expiration of the lease. 144 Colo. at 560, 357 P.2d at 638. Here, the initial

lo.2004) (citing Black’s Law Dictionary 53 (6th ed.1990)). Permissive possession by someone other than the true

owner will not start the running of the statute of limitations and, thus, if the adverse claimant recognizes title in the

owner, the period of limitation will stop running. 10 David A. Thomas, Thompson on Real Property § 87. 10, at 138

(2d ed.2009).

On appeal, the possessor disputes both the existence and the validity of any agreement, noting the contents of the

seller’s disclosure documents contradict her statement concerning an agreement in that: (1) the seller’s “Real Proper-

ty Disclosure” alerted the possessor of encroachment but not an agreement for permissive use; (2) the seller‘s “Affi-

davit and Indemnity” affirmed that there were no unrecorded contracts, leases, easements, or other agreements or

interests relating to the premises under contract; (3) the “Contract to Buy and Sell Real Estate” required disclosure

[8][9][10] The possessor also alludes to issues of the seller‘s motive in giving the affidavit; her capacity to give an

affidavit; and, for lack of a better term, any undue influence that might have been brought to bear on the seller to

give an affidavit. However, no affidavit or other admissible evidence from a caregiver, family member, treating phy-

sician, friend, or other person raising any of these concerns was attached to the possessor’s response to the motion

for summary judgment. Every person, including the seller here, with personal knowledge about which he or she tes–

sor’s claim of adverse possession is appropriate on this record.

II. Direct Appeal-Remedies

[11] The owner appeals the trial court’s remedy for the possessor‘s continuing trespass, that is, denying mandatory

injunctive relief and fashioning other equitable remedies giving the possessor the choice of leasing the disputed

injured party; and (3) the owner presented no evidence of actual monetary damages. Therefore, the trial court en-

tered an order requiring the owner to lease the disputed property for a nominal rent.

The parties then briefed the issue of the owner’s right to utilize self-help to remove the encroachments. The trial

court found that (1) the total area of encroachment is approximately 1200 square feet; (2) the possessor knew, or at

al of the encroachments would exceed any damages suffered by the owner.

The trial court then adopted an optional remedy based on the rationale and holding in Mannillo v. Gorski, 54 N.J.

378, 255 A.2d 258 (1969), that “the encroached parcel be appraised and, if necessary surveyed, and that [the posses-

sor] be given 90 days after appraisal in which to purchase the disputed tract from [the owner] for cash.”

[12][13] From the outset, the owner sought mandatory injunctive relief requiring the removal of the encroachments.

The entry or denial of injunctive relief is a discretionary decision of the trial court that will not be disturbed on ap–

peal absent an abuse of that discretion. Rocky Mountain Animal Defense v. Colorado Div. of Wildlife, 100 P.3d 508,

518 (Colo.App.2004). Therefore, we will reverse only if a trial court’s decision is based on an erroneous application

of the law, or is otherwise manifestly arbitrary, unreasonable, or unfair. Phoenix Capital, Inc. v. Dowell, 176 P.3d

835, 840 (Colo.App.2007). A court in equity has considerable discretion in fashioning a decree that achieves a fair

result under the particular circumstances of the case. Fed. Deposit Ins. Corp. v. Mars, 821 P.2d 826, 831 (Co-

lo.App.1991).

economic arguments may disfavor a mandatory injunction. Id. The treatise goes on to state:

If the total cost of removal of the encroachment, including the loss in value of the [possessor’s] remaining build-

ing, was very high in comparison to the harm done to the plaintiff because the building encroached on his proper-

ty, that disparity in economic consequences would be a significant factor in determining whether to issue the in-

junction.

Id. at 817-18 (emphasis added).

We start our analysis with the observation that our supreme court has defined a continuing trespass. See Hoery v.

United States, 64 P.3d 214, 217-18 (Colo.2003). In Hoery, the court stated:

[I]n cases, for example, when the defendant erects a structure or places something on or underneath the plaintiff’s

ity for trespass remains. See 75 Amer. Jur.2d Trespass § 26 (2002).

….

For continuing intrusions … each repetition or continuance amounts to another wrong, giving rise to a new cause

of action. See Fowler V. Harper et al., The Law of Torts § 1.7 (3d ed.1996).

Id. at 218.

[14] Therefore, if, as here, the trespass is continuing, the owner’s only remedy at law would involve a multiplicity of

suits for each recurrence of the trespass. This remedy at law is inadequate and where further trespasses of the same

kind are threatened, an injunction will lie. Koch v. Story, 47 Colo. 335, 344-45, 107 P. 1093, 1097 (1910); Boglino v.

Giorgetta, 20 Colo.App. 338, 342, 78 P. 612, 614 (1904); see also Mars, 821 P.2d at 829 (citing Restatement (Sec–

ond) of Torts § 160 (1965) for the proposition that after consent is withdrawn, the structures must be removed within

reasonable time because continued occupation of the land by the structures is a trespass).

Ordinarily, [a] mandatory injunction will issue to compel removal of encroaching structures, but it is not to be is–

sued as a matter of course. On appeal to the court for an equitable remedy, the court must consider the peculiar

equities of the case. A study of many decisions discloses no specific and universally-accepted rule as to en-

croachments…. Sometimes a slight and harmless encroachment is held to be within the rule “de minimis,” … and

generally the courts require that he who seeks equity should do equity and come with clean hands.

removal is so great as to cause grave hardship or otherwise make its removal unconscionable, mandatory injunc-

tion may properly be denied and plaintiff relegated to compensation in damages….

….

Further, we note that the encroachment here complained of is very slight…. [The footings] constitute no interfer-

ence whatever with plaintiffs’ present use of the property….

hardship of such removal would be so great in comparison with any advantage of plaintiffs to be gained thereby

that we think it would be unconscionable to require it, and that under all the circumstances disclosed mandatory

injunction should have been denied by the trial court, with permission for plaintiffs to proceed, if desired, in dam-

ages.

54 N.J. at 389, 255 A.2d at 264 (citations omitted). We are not persuaded by, and decline to follow, Mannillo v.

Press was so small that cost of the removal of the offending structure so great that a mandatory injunction requiring

removal would be inappropriate if not unconscionable.

Taking this all into consideration, in our view, the trial court abused its discretion on several levels.

encroached. In addition, the possessor‘s testimony was not that it would cost approximately $9,000 to “remove” the

metal shed; it was, instead, that it would cost that amount to “move” the metal shed, which, presumably, includes its

reconstruction on the possessor’s property.

Second, the metal shed encroaches approximately 190 square feet, yet the trial court granted the possessor the right

to the wall or fence and that she wanted the trees to remain for privacy, security, and aesthetic reasons, and to pre-

vent erosion. These uses or benefits do not, in our view, constitute any basis for compelling the owner to rent or

convey approximately 1000 square feet of her property to the possessor. The trial court abuses its discretion in at-

tempting to redraw the property line between the properties to a more logical location based on the terrain, which it

expressly stated it was attempting, or to accommodate the possessor’s comfort or convenience.

235 P.2d at 595 (emphasis added); or “cannot without great expense remove or eliminate the encroachment, or such

removal or elimination is impractical or could be accomplished only with great hardship,” as stated in Mannillo v.

Gorski, 54 N.J. at 389, 255 A.2d at 264.

Fourth, the trial court awarded the possessor a perpetual leasehold interest in the disputed property without provid-

hood of future litigation.

In our view, the cost of removal of the shed from the disputed parcel is not “so disproportionate” or, more important,

The cost of the removal of the shed, when compared to the cost of removing an entire residence or redesigning and

expanding a municipal surface water drainage system, are certainly not great or unconscionable. And while the trial

court found that the possessor did not act in bad faith or with malice, it did not find she acted in good faith and inno-

cently as contemplated by Mannillo.

FN* Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24–

51-1105, C.R.S.2009.

Colo.App.,2010.

Hunter v. Mansell

— P.3d —-, 2010 WL 726301 (Colo.App.)

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