Chapter 21 - § 21.1 • THE COLORADO STATUTES

• Jurisdiction: Colorado

§ 21.1 • THE COLORADO STATUTES

§ 21.1.1—The 20-Year Statutes

Statutes regarding boundary lines and public highways provide 20-year limitation periods.

Boundary Lines

C.R.S. §§ 38-44-101 to 38-44-112 provide a procedure for establishing disputed boundaries.¹ C.R.S. § 38-44-109 provides:

The corners and boundaries finally established by the court in such proceedings, or an appeal therefrom, shall be binding upon all the parties, their heirs and assigns, as the corners and boundaries which have been lost, destroyed, or in dispute; but 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.

This statute creates a presumption that what has been acquiesced in between the parties ripens into a reality after the prescribed period of time.² There must be mutuality in the fixing of a boundary in order for acquiescence to be found.³ Acquiescence implies a knowledge of the facts; there can be no acquiescence without knowledge of the facts alleged to have been acquiesced in.⁴

Whether a fence is acquiesced in as a boundary or merely exists to serve as a barrier is a question of fact.⁵ The act of creating a fence can permanently establish boundaries even if there is a mutual mistake as to the location of the fence.⁶ One of the tests of acquiescence in a boundary line in addition to the existence of a fence over the prescribed period of time is the actual possession and dominion over the property up to the fence. A mere showing of the existence of a fence, without more, is not sufficient.⁷

If two abutting parcels come into common ownership, any previous acquiescence is destroyed,⁸ and the 20-year period for acquiescence commences running anew when the parcels are again separated.

Public Highways

C.R.S. § 43-2-201(1) provides, "The following are declared to be public highways . . . (c) All roads over private lands that have been used adversely without interruption or objection on the part of the owners of such lands for twenty consecutive years . . . ."

For the creation of public roads by adverse use, see § 32.2.4.

§ 21.1.2—The 18-Year Statute

The general adverse possession and prescription statute is C.R.S. § 38-41-101(1), which provides an 18-year limitations period:

No person shall commence or maintain an action for the recovery of the title or possession or to enforce or establish any right or interest of or to real property or make an entry thereon unless commenced within eighteen years after the right to bring such action or make such entry has first accrued or within eighteen years after he or those from, by, or under whom he claims have been seized or possessed of the premises. Eighteen years of adverse possession of any land shall be conclusive evidence of absolute ownership.

Prescriptive rights (i.e., rights to nonpossessory interests acquired by adverse use) are governed exclusively by this section. The same rules apply to the acquisition of title by adverse possession and the acquisition of easement by prescription.⁹ Any real property interest, including servitudes such as easements, may be extinguished by prescription.¹⁰ A suit to cancel a deed is not an action for the recovery of real property under this section.¹¹

§ 21.1.3—The Ten-Year Statutes

Statutes regarding proceedings under contracts of sale and bonds for deeds provide ten-year limitation periods.

Contracts of Sale

C.R.S. § 38-41-116 provides:

No action or proceeding whatsoever shall be brought or maintained by any person to enforce or procure any right or title accorded to the purchaser under any contract for the purchase and sale of real property if such person is not in possession of the real property described in and the subject of such contract of purchase and sale unless such action or proceeding is commenced within ten years of the day of the happening of the event appointed in said contract for the delivery by the seller of a deed of conveyance of the property therein agreed to be purchased and sold. If no day is appointed in

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