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Cronk v. Bowers.

2023 COA 68. No. 22CA1075. Boundary by Acquiescence Doctrine—Adverse Possession—Disputed Boundary—Civil Theft—Unlawful Detention—Permanent Injunction—Attorney Fees and Costs.

July 13, 2023

Cronk owns property in Section 6, which lies directly east of the Bowerses’ Section 1 property. The parcels share a mile-long border, and the parties dispute ownership of a strip of land running along the border of their respective parcels (the disputed property). Cronk’s family owned and farmed the Section 6 property beginning in 1975. When they began operations, a fence ran the length of the border between the two properties, and the Cronks’ farming operation extended up to this fence line. However, the Cronks were unaware that the fence was located approximately 30 feet west of the county’s section line, so the fence placement effectively expanded the Section 6 property 30 feet westward. Cronk continued to farm the Section 6 property and the disputed property until 2017. From 1975 to 2011, the Behr family owned the Section 1 property, where they grazed livestock from 1975 to 1998. Whenever livestock would break through the fence and into the disputed property, the Behrs or Cronk would return the livestock to the Behrs’ side and repair the fence. The Behrs once paid Cronk to graze their livestock on Cronk’s side of the fence. And when Cronk sold his crop, including what he grew on the disputed property, the Behrs never requested payment for any portion of those sales.

The Bowerses purchased the Section 1 property in 2011. Cronk continued to farm up to the fence until March 2017, when the Bowerses removed the northern half mile of the fence without consulting Cronk. Cronk testified that he told the Bowerses that the historic fence line was the boundary and that they could replace the original fence with a new fence in the same location. Cronk planted wheat in late 2018 for harvest in early 2019, but in March 2019 the Bowerses removed the southern half mile of the original fence and erected a new fence on the section line, 30 feet east of the original fence. The Bowerses also sprayed and killed Cronk’s wheat crop that was planted between the original fence and the newly erected fence and replaced it with their own crop. Cronk sued the Bowerses, contending that he owned the disputed property because he and the Behrs had acquiesced to the original fence as the legal boundary between the properties from 1975 to 2011 or, in the alternative, that he had acquired the property through adverse possession. He sought a declaration pursuant to CRCP 105(a) that he owned the disputed property and a permanent injunction barring the Bowerses from entering it. Cronk also brought claims for trespass, civil theft, conversion, and unlawful detention stemming from the Bowerses’ destruction of his wheat crop. The district court found that Cronk and the Behrs mutually acquiesced to the original fence as the boundary between the properties from 1975 to 2011 and concluded that Cronk acquired ownership to the disputed property through acquiescence and adverse possession. It further concluded that Cronk proved his civil theft and unlawful detention claims but failed to establish elements of his trespass and conversion claims. The court also awarded Cronk attorney fees and costs.

On appeal, the Bowerses argued that there was insufficient evidence to conclude that the parties mutually acquiesced to the original fence as the boundary. Under CRS § 38-44-109, the boundary by acquiescence doctrine, when neighboring property owners mutually treat a physical barrier rather than the property line as the boundary between the properties for over 20 years, that barrier can replace the property line as the legal boundary. Here, sufficient evidence supports the court’s finding that the parties mutually acquiesced to the original fence as the boundary because Cronk and his family exclusively farmed the disputed property for over 40 years and the facts show that the Behrs did not believe they owned the disputed property. Viewing the evidence in the light most favorable to Cronk, he satisfied the CRS § 38-44-109 requirements. Accordingly, the court’s CRCP 105(a) declaration that the original fence replaced the section line as the boundary and that Cronk therefore owns the disputed property was not erroneous.

The Bowerses also challenged the court’s adverse possession ruling, asserting that (1) the court failed to apply a clear and convincing standard under CRS § 38-41-101(3)(a); and (2) there was insufficient evidence to support the court’s findings on certain elements of Cronk’s adverse possession claim. However, even assuming without deciding that the court erred, any error was harmless because the court of appeals affirmed the district court’s judgment that Cronk acquired ownership of the disputed property through boundary by acquiescence, so whether he also did so through adverse possession is immaterial.

The Bowerses further asserted that the court erred in concluding that Cronk prevailed on his unlawful detention claim by failing to enter findings that they detained the property “forcibly.” Section 13-40-104 does not require proof that the accused entered the property with force, so the court did not err by concluding that Cronk prevailed on his unlawful detention claim without finding that the Bowerses entered the property forcibly.

The Bowerses also argued that the court erred by issuing a permanent injunction prohibiting them from entering the disputed property because, in their view, there is no factual basis that Cronk faced a danger of real, immediate, and irreparable injury. Here, the court did not enter findings explaining how Cronk satisfied the elements necessary to support the injunctive relief it ordered, so the court erred.

Lastly, the court determined that the district court did not make any factual findings or include any analysis to support its costs and attorney fees award to Cronk, so that award cannot stand. However, because Cronk prevailed on his unlawful detention claim on appeal, he is entitled to reasonable appellate attorney fees under CRS § 13-40-123.

The judgment was affirmed as it relates to Cronk’s ownership of the disputed property. The court’s issuance of a permanent injunction and award of attorney fees and costs were reversed and the case was remanded for (1) findings on whether, on the existing record, a permanent injunction is warranted; and (2) a determination of Cronk’s reasonable attorney fees and costs incurred at trial and on appeal.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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