Chapter 10 - § 10.7 • OPEN AND NOTORIOUS POSSESSION — GIVING NOTICE

• Jurisdiction: Colorado

§ 10.7 • OPEN AND NOTORIOUS POSSESSION — GIVING NOTICE

§ 10.7.1—Open And Notorious Possession — The Law

Very few Colorado appellate decisions analyze the requirement of open and notorious possession; it has not been included as an element since the late 1910s.¹⁵⁵ The requirement prevents surreptitious or secret possession¹⁵⁶ and ensures that the record owner has notice of the adverse claim and, consequently, has an opportunity to protect his or her property rights.¹⁵⁷ A record owner does not need actual knowledge of the possession; it is sufficient if the true owner could have learned of the possession through proper diligence.¹⁵⁸

§ 10.7.2—Open And Notorious Possession — Examples

Many Colorado cases discuss notice generally without calling it open and notorious possession. Until Segelke v. Atkins was decided, open and notorious possession was a required element ofproof.¹⁵⁹ After Segelke, and beginning with Dzuris v. Kucharik,¹⁶⁰ the Colorado courts dropped the element without explanation. The elimination of the element is made all the more curious because Colorado's prescriptive easement¹⁶¹ and adverse possession of water rights¹⁶² cases require proof of open and notorious possession. A public road by prescription case provides the most thorough analysis of what constitutes open and notorious possession.¹⁶³

By implication, McIntyre v. Board of County Commissioners¹⁶⁴ discusses the need for open and notorious possession. Although McIntyre addresses a claim for a public road by prescription, the analysis is informative. McIntyre states:

[O]n the claim of right issue, the claimant must provide evidence that a reasonably diligent landowner would have had notice of the public's claim of right to the road. The evidence must include some overt act on the part of the public entity responsible for roads in the jurisdiction that it considers the road a public road.¹⁶⁵

McIntyre then goes on to explain exactly what types of overt acts are sufficient to provide notice of the claim of right. These acts include the following: plowing of roads, including the road on a public road system map, using the road for mail delivery or school buses, expending public funds for the maintenance or improvement of the road, or installing drainage systems for the road.¹⁶⁶ The types of overt acts that support an adverse possession claim are as varied as the claims themselves: pasturing stock on fenced land, maintaining a fence or ditch, irrigating, leasing, planting a garden, paving...