This land is now their land -- so a judge rules

Times Staff Writer

For more than 20 years, a retired judge and his lawyer wife trespassed on a vacant lot next door to their home.

They planted a garden there and stacked their firewood. They say they held parties there and walked the land so often they wore a path in the grass.

Last year, Richard McLean and Edith Stevens claimed the land as their own under Colorado’s adverse possession law, once known as squatters’ rights.

In October, a district judge awarded them one-third of the lot, which its owner values at $1 million.


Although the couple won in a court of law, they have not fared well in the court of public opinion in this university town, where the case has become a cause celebre, sparking a protest and calls for change to the law.

The doctrine of adverse possession, which says a person can gain possession of property after using it without challenge by the owner for a certain length of time, isn’t a new or obscure legal doctrine. Still, its application in this case has the residents of this university town fuming.

“This scares the hell out of landowners,” said Don Kirlin, the man whose property was taken away. He said he and his wife first took it as a joke when he heard of the former judge’s designs on their land.

In 1984, Kirlin, a commercial airline pilot, and his wife, Susie, a former teacher, bought two adjacent lots on the southern edge of the now-pricey city. They lived in a home a short distance away, but hoped to someday build their dream house on their vacant land, which abuts city-owned open space, a rolling expanse of ponderosa pine and native grasses.

They frequently walked their dogs past their vacant land, but say they never saw any sign that anyone was using it.

Nor did they think to worry about such a thing, Susie Kirlin said. After all, they paid their property taxes and homeowner fees. They sprayed for noxious weeds and repaired fences. What else did an owner have to do?

That attitude speaks to misconceptions about property ownership, said Eduardo Penalver, a law professor at Cornell University.

“There’s a mythology of land ownership -- that if you own land, you can do anything you want,” he said. Property rights are limited, he said. “This is one of those limitations: If you’re not vigilant, it could be taken.”


The law is based on a philosophy that land should be used, Denver real estate lawyer Willis V. Carpenter said. “If you don’t use it and someone else does, they’ll end up owning it,” he said.

Every state in the country has an adverse possession law, although the requirements for bringing a case differ widely. For example, the length of time that a person must show uninterrupted use of another’s land varies from five to 30 years.

In California, people who want to claim someone else’s land must not only use it for at least five years, they also must pay property taxes on it. That’s also the case in a handful of other states.

One reason for that requirement is to alert the owner that someone is using the property. “Most courts are not disposed to easily give land away,” said Spencer W. Weisbroth, a San Francisco lawyer.


Because of that requirement, he said virtually all California cases fail.

The majority of cases involve minor boundary encroachments in which neighbors aren’t sure where the borders of their land are, Penalver said. Most are resolved without litigation; the owner issues a warning and the encroaching neighbor withdraws. “It’s a rare case that gets litigated.”

It’s an even rarer case that makes the news.

That happened this year in New York, when a land dispute prompted the state Legislature to pass a law preventing someone who knowingly occupies someone else’s land from acquiring it. The governor later vetoed the law, saying efforts to prove the person’s state of mind would lead to more litigation.


Most states don’t make a distinction between people who unknowingly occupy another person’s land and those who do it deliberately, Penalver said. But many people are more understanding when someone unknowingly uses someone else’s land, he said.

Public reaction also depends on who’s claiming the land.

In a highly publicized case in London, a homeless man this year won ownership of a small plot in a tony neighborhood where he had lived in a shack unchallenged for 21 years. He was seen as a sympathetic figure.

That wasn’t the case in Colorado, where Boulder District Judge James C. Klein -- who has served since 2005 in the same judicial district where McLean served from 1981 to 1997 -- ruled the couple had demonstrated that their attachment to the land was “stronger than the true owners’ attachment.”


“Whereas defendants were unaware of plaintiffs’ use of the disputed land during virtually their entire 22-year period of ownership, plaintiffs have efficiently used the land on a daily basis,” Klein wrote in his opinion.

The judge granted McLean and Stevens one-third of the lot next to them. That decision rendered it too small to sell or to build a home on, Kirlin said.

The Kirlins and McLean and Stevens each say that they made efforts to settle the matter -- but that the other party would not accept the offers.

In addition to the specifics of the dispute, the Kirlins take issue with the application of adverse possession law itself, saying it has its place but wasn’t intended for cases such as this.


Many in the community seem to agree. When the news hit, residents reacted in an Internet-fueled fury. Bloggers ridiculed McLean and Stevens as land-grabbers who used their knowledge of the law to steal from an unsuspecting neighbor.

Last month, more than 200 people flocked to the property, where they hoisted signs with slogans such as “Thou shall not steal” and shouted “shame” and “thief” at the McLean/Stevens home, the Denver Rocky Mountain News reported.

State Sen. Ron Tupa, a Democrat from Boulder, said he had received a flood of e-mails about the case; he and Rep. Rob Witwer, a Republican from Evergreen, intend to propose a change to the law, although they haven’t settled on the specifics.

“If the law allows this kind of taking, then it needs to be changed,” Tupa said.


A change in state law wouldn’t affect the Boulder case, which the Kirlins say they intend to appeal. Regardless of the outcome, they say they still want to build a home on the second lot that was not affected by the decision, where Susie Kirlin recently stapled a sign to the fence.

Facing the home of McLean and Stevens, it reads, “You will never enjoy a stolen view.”