20CA1671 Dwight v Morfitt 11-10-2021
COLORADO COURT OF APPEALS
Court of Appeals No. 20CA1671
Gilpin County District Court No. 18CV30004
Honorable Dennis J. Hall, Judge
Joshua Dwight,
Plaintiff-Appellee,
v.
Becky Morfitt,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division VII
Opinion by JUDGE NAVARRO
Grove and Pawar, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 10, 2021
Moye White LLP, Jack W. Berryhill, Rachel E. Yeates, Kelsey R. Bowers,
Denver, Colorado, for Plaintiff-Appellee
Coaty Marchant Woods, P.C., John D. Coaty, Anita L. Marchant, Dylan Woods,
Natalie R. Norcutt, Evergreen, Colorado, for Defendant-Appellant
1
¶ 1 Defendant, Becky Morfitt, appeals the judgment entered in
favor of plaintiff, Joshua Dwight, resolving a dispute over property
ownership. We affirm.
I. Background
¶ 2 In 1992, Morfitt purchased a property in Gilpin County from
Leo and Jean McDonald (the Morfitt Property). Directly to the west
of the Morfitt Property is property owned by Dwight (the Dwight
Property). Dwight bought it in 2017 from Norm Hicks, who had
inherited it from his mother in the mid-1970s. Hicks’s mother
purchased the Dwight Property in 1961.
¶ 3 A barbed wire fence runs north to south between the northern
confluence of both properties and Smith Hill Road. At the south
end of the barbed wire fence — where it meets Smith Hill Road — is
a gated driveway leading onto the Dwight Property. The area
between the barbed wire fence and the western surveyed boundary
of the Morfitt Property, including the gated driveway, is the subject
of the parties’ dispute. We refer to this approximately 0.5-acre area
as the “Disputed Property,” and it is diagramed below.
2
¶ 4 In June 2017, Dwight began constructing a log fence parallel
to and on the western side of the barbed wire fence. Morfitt
confronted Dwight and told him that he was on her property.
¶ 5 After the parties could not settle their dispute, Dwight filed the
present action seeking to quiet title to the Disputed Property. As
relevant here, Dwight argued that he and his predecessors in
interest had adversely possessed the Disputed Property and,
alternatively, that the parties and their predecessors in interest had
acquiesced to the barbed wire fence as the boundary between the
properties. Morfitt counterclaimed, also seeking to quiet title to the
Disputed Property.
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¶ 6 After a bench trial, the trial court issued a written order
finding that Dwight and his predecessor in interest, Hicks, had
adversely possessed the Disputed Property. As an alternative basis
on which to find that Dwight owned the Disputed Property, the
court found that the parties and their predecessors in interest had
acquiesced to the barbed wire fence as the boundary between the
two properties. In a separate order, the court issued a quiet title
decree to the Disputed Property in favor of Dwight.
¶ 7 In a later minute order, the trial court awarded Morfitt $7,280,
the value of the Disputed Property. Morfitt accepted a check from
Dwight for that amount, less Dwight’s awarded bill of costs and half
the cost of a survey of the Disputed Property, and cashed it. She
also signed a quitclaim deed per the court’s order.
II. Acquiescence
¶ 8 Among other contentions, Morfitt contends that the trial court
clearly erred by finding that the parties and their predecessors in
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interest had acquiesced to the barbed wire fence as the property
boundary. We are not persuaded.
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A. Applicable Principles
¶ 9 Under section 38-44-109, C.R.S. 2021, “if it is found that the
boundaries and corners alleged to have been recognized and
acquiesced in for twenty years have been so recognized and
acquiesced in, such recognized boundaries and corners shall be
permanently established.” Thus, where property owners place a
fence somewhere other than the true boundary dividing the
properties and then, for twenty years thereafter, conduct
themselves as to indicate that they claim no property interest
beyond the fence, a court may find that the parties acquiesced to
the fence as the property boundary. Hartley v. Ruybal, 160 Colo.
80, 85, 414 P.2d 114, 116 (1966).
¶ 10 There must be “mutuality in the fixing of a boundary in order
for acquiescence to be found.” Id. at 84, 414 P.2d at 116. Where
acquiescence is shown, it is binding upon the parties and their
1
Given our disposition, we need not resolve Dwight’s claim that
Morfitt waived this contention by accepting the benefit of the trial
court’s judgment.
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successors in interest. Forristall v. Ansley, 170 Colo. 391, 396, 462
P.2d 116, 119 (1969).
¶ 11 Acquiescence to a property boundary is a question of fact.
Terry v. Salazar, 892 P.2d 391, 393 (Colo. App. 1994), aff’d, 911
P.2d 1086 (Colo. 1996). A trial court’s factual findings are binding
on appeal unless they are so clearly erroneous as to find no support
in the record. St. Jude’s Co. v. Roaring Fork Club, L.L.C., 2015 CO
51, ¶ 34.
B. Analysis
¶ 12 The following evidence supports the trial court’s finding.
¶ 13 Hicks, Dwight’s predecessor in interest, testified that he
believed the fence existed long before his mother purchased the
Dwight Property in 1961. Despite some ambiguity surrounding the
fence’s origin, Hicks testified that he had considered the fence to be
his property’s eastern boundary. Accordingly, Hicks and his family
and friends conducted their activities on the property to the west of
the fence. When Hicks sold Dwight the property, Hicks represented
that the fence was the property line. Neither Hicks nor Dwight ever
conducted activities east of the barbed wire fence.
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¶ 14 Hicks also testified to an incident involving a Boy Scout retreat
on his property. At that time, Jean McDonald (Morfitt’s predecessor
in interest) complained that a scout had crossed onto her property
to ask to use the telephone. In response, Hicks instructed the
scouts not to do that anymore, “not to bother the neighbors.” When
asked at trial whether the scout had “gone over on the other side of
that barbed wire fence,” Hicks said, “Not to my knowledge.”
¶ 15 On appeal, Morfitt cites this testimony as proof that Hicks did
not consider the fence to be the property boundary. Read in
context, however, it seems that Hicks meant merely that he did not
have personal knowledge of whether the scout had crossed the
fence line. Hicks duly reacted to his neighbor’s complaint that the
scout had done so. In any event, to the extent the evidence of
Hicks’s acquiescence to the fence as the property line was
conflicting, it was the trial court’s province to resolve the conflict.
See In re Marriage of Hatton, 160 P.3d 326, 335 (Colo. App. 2007).
And there is ample record support for the court’s finding that Hicks
recognized the fence as the property line.
¶ 16 Additionally, the record supports the court’s finding of
acquiescence by Morfitt and her predecessors in interest. Jean
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McDonald testified that, when she and her husband owned the
Morfitt Property, they believed the barbed wire fence represented
the property line. Her husband even performed maintenance on it.
¶ 17 After purchasing the Morfitt Property, Morfitt installed a “dog
run” that abutted the east side of the barbed wire fence. She did
not extend the dog run to the west of the fence. She testified,
however, that she never considered the fence as representing the
property line. She further testified that she considered the fence to
be a safety hazard, but she never attempted to repair or remove it.
¶ 18 After considering all the evidence, the court declined to credit
Morfitt’s testimony that she did not consider the fence as marking
the property line. The court gave the following explanation:
The court finds that Ms. Morfitt acquiesced in
the barbed wire fence as the property line
separating her parcel from the Dwight
property. Ms. Morfitt conducted herself with
respect to the land on each side of the fence so
as to indicate that she claimed no property
west of the fence. She exercised control and
dominion over the land up to the barbed wire
fence on the east side by constructing a dog
run that abutted the fence. The court heard
no evidence of similar uses by Ms. Morfitt of
the land on the west side of the barbed wire
fence. Why would Ms. Morfitt make
improvements to only one side of the fence and
leave the other side untouched unless she
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believed the fence to represent her property
boundary? Similarly, in locating the dog run
so that it ran alongside the east side of the
fence, Ms. Morfitt indicated her recognition of
the boundary of her property. This is also
shown by her failure to remove the barbed-
wire fence. Her conduct indicates that she
recognized the barbed wire fence as the
property boundary and that she claimed no
property west of that fence.
¶ 19 Morfitt argues that the trial court should have given more
weight to her testimony and less weight to Jean McDonald’s
testimony (which Morfitt describes as “poorly informed”). As noted,
however, the credibility of witnesses, the sufficiency, probative effect
and weight of the evidence, and the inferences and conclusions to
be drawn therefrom are all within the trial court’s province. E.S.V.
v. People in Interest of C.E.M., 2016 CO 40, ¶ 24. We may not
second-guess those decisions where, as here, the record provides
support for them.
¶ 20 We also disagree with Morfitt’s suggestion that the court’s
analysis was improper as a matter of law because the court asked a
rhetorical question. In assessing her credibility, the court correctly
considered the reasonableness or unreasonableness of her
testimony, the consistency or lack of consistency of her testimony,
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and any other circumstances that affected her credibility. See
Holley v. Huang, 284 P.3d 81, 86 n.3 (Colo. App. 2011).
¶ 21 In sum, because the record supports the trial court’s finding
that the parties and their predecessors in interest acquiesced to the
barbed wire fence as the boundary between the properties for the
statutory period, we may not disturb that finding.
III. Other Contentions and Costs of Appeal
¶ 22 Morfitt also challenges the trial court’s adverse possession
ruling. We need not reach that challenge, however, because we
affirm the court’s decision that Dwight owns the Disputed Property
due to the acquiescence to the barbed wire fence as the property
boundary.
¶ 23 Finally, we grant Dwight’s request for an award of costs
incurred in this appeal. See C.A.R. 39(a)(2).
IV. Conclusion
¶ 24 The judgment is affirmed.
JUDGE GROVE and JUDGE PAWAR concur.