Colorado’s Myth of Private Property

Howard Hawks’ “Red River” isn’t just any Western. It was the last movie playing in the small-town Texas theater in the Peter Bogdanovich/Sybil Shepherd film (from the Larry McMurtry novel) “The Last Picture Show.” It was Montgomery Clift’s first – and many say John Wayne’s best – film.

And how does novelist Borden Chase’s quintessential American tale of the first great post-Civil-War cattle drive begin? Wayne’s Tom Dunson and Clift’s Matt Garth start one of the great Texas cattle herds with one bull and one cow and all the land between the Red River and the Rio Grande – land which they simply grab.

Two Mexican pistolleros show up, early in the film, to tell the man and boy they can camp on the land while they pass through, but they can’t stay, because the land belongs to a wealthy Mexican who lives far to the south.

“That’s too much land for one man,” Wayne declares.

One of the men says it’s his job to deal with such attitudes. Wayne cements his claim by killing him.

The Wayne character justifies this act by asserting that the Mexican Don Diego just stole the land from whoever was there first – “Indians, I’m guessing.”

But things have changed since 1851. You can’t grab a nice-looking piece of land in America today just because the owner has left it vacant.

Or can you?

In 1984, Don 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 of Boulder, Colo. They live in a home a short distance away, but hoped to build their dream house on the 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. They report they never saw any sign anyone was using it.

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

Unbeknownst to the Kirlins, however, for more than 20 years a retired judge named Richard McLean and his lawyer wife, Edith Stevens – occupants of the house next door to the vacant lots – systematically trespassed on the Kirlins’ land.

McLean and Stevens planted a garden and stacked their firewood there, the Los Angeles Times reports. They held parties there and walked the land so often they wore a path in the grass.
In 2006, Richard McLean and Edith Stevens went to court, claiming the land they had never bought Ñ land which any check of the municipal clerk’s records would show as the property of the Kirlins Ñ was actually theirs under Colorado’s adverse possession law, once known as “squatters’ rights.”

In October, 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.”

Judge Klein awarded former Judge McLean one-third of the lot, which the Kirlins’ value at $1 million. Though in fact the court should now pay the Kirlins the value of their entire lot, now rendered too small to build a house on, under local zoning codes.

The wealthy squatters may have won in a court of law, but they have not fared so well in the court of public opinion, even in the famously left-leaning university town of Boulder.

Internet bloggers ridiculed McLean and Stevens as land-grabbers who used their knowledge of the law to steal from an unsuspecting neighbor. In November, more than 200 people flocked to the property, where they hoisted signs with slogans such as “Thou shall not steal” while shouting “shame” and “thief” at the McLean-Stevens home, according to the Rocky Mountain News.

“If the law allows this kind of taking, then it needs to be changed,” declares State Sen. Ron Tupa, a Democrat from Boulder.

The doctrine of adverse possession isn’t new or obscure. But it’s usually applied to rights-of-way. If your parents and grandparents allowed the neighbors to access their property or walk to a popular bathing beach across your property, you may have forfeited your right to fence off that path.

But to grab a chunk of land away from a taxpaying neighbor by the simple expedient of a woodpile and some tomato plants?

“This scares the hell out of landowners,” says Don Kirlin, who now owns one-and-two-thirds vacant lots.

In fact, that attitude betrays a common misconceptions about property ownership, Eduardo Penalver, a law professor at Cornell University, tells The Times.

“There’s a mythology of land ownership – that if you own land, you can do anything you want,” the professor patiently explains. In fact, property rights are limited, he argues. “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, agrees Denver real estate lawyer Willis V. Carpenter. “If you don’t use it and someone else does, they’ll end up owning it.”

So we can now claim someone else’s land just because we “like” it more? And the court won’t even ask why we didn’t approach the owner with an offer to buy?

There’s no longer a right to buy land, pay taxes on it, and hold it in hopes of seeing it increase in value?

How about our savings accounts? That wealth’s not “currently being used,” after all. Could the courts hand our savings to someone who develops “a stronger attachment” to them than our own?

The Kirlins vow to appeal.

The courts should consider carefully. For if this ruling stands, property owners are in effect being advised that the courts won’t enforce their titles, leaving them only one solution: A couple guys with big hats, jangling spurs, and Walker Colts, smiling and explaining, “You are welcome to camp on this land for a day or two as you’re passing through. But you cannot stay here.”

Ah, the roar of .44s in the twilight. If the courts won’t protect our property rights, they leave us to resort to older ways.

Comments are closed.