Chapter 26 - § 26.1 • ESTABLISHMENT OF DISPUTED BOUNDARIES

• Jurisdiction: Colorado

§ 26.1 • ESTABLISHMENT OF DISPUTED BOUNDARIES

A boundary dispute may be resolved by the special statutory procedure, or by other appropriate statutory or common-law proceedings.¹ The actual location of a disputed boundary is a question of fact.²

Colorado provides a special statutory procedure for the establishment of disputed boundaries:

When one or more owners of land, the corners and boundaries of which are lost, destroyed, or in dispute, desire to have the same established, they may bring an action in the district court of the county where such lost, disputed, or destroyed corners or boundaries or parts thereof are situated against the owners of the other tracts which would be affected by the determination or establishment thereof, to have such corners or boundaries ascertained and permanently established. If any public road is likely to be affected thereby, the proper county shall be made a party defendant.³

This procedure is not available unless it is shown that there is a boundary in dispute.⁴

The fact that one or both of the properties has been registered under the Torrens Act does not preclude the use of this procedure unless the boundary question had first been raised in the Torrens proceedings.⁵

The action is a civil action, but the Rules of Civil Procedure do not apply insofar as they conflict with the procedure and practice provided by the statute.⁶ In particular, Rule 105 does not apply.⁷ Notice of the action is given as in other cases, and if the defendants or any of them are nonresidents of the state, or unknown, they may be served by publication as provided by law.⁸ The costs of the proceeding will be taxed as the court thinks just, and will be a lien on the land or interest therein owned by the party against whom the costs are taxed, insofar as the land is involved in the proceedings.⁹ The only necessary pleadings are the petition of plaintiff describing the land involved and, insofar as may be, the interest of the respective party and asking that certain corners and boundaries therein described, as accurately as may be, be established. Either the plaintiff or the defendant, by proper plea, may put in issue the fact that certain alleged boundaries or corners are true ones or that such have been recognized and acquiesced in by the parties or their grantors for a period of 20 consecutive years.¹⁰ The issue of acquiescence may be tried before a commissioner appointed in the discretion of the court.¹¹

If the owner of a mineral reservation is not joined in an action to adjudicate the location of a boundary, no decree can affect his or her rights to the minerals which might be under the disputed area.¹²

The court may appoint the county surveyor or, if there is no county surveyor or if the court deems it in the best interest of the parties, it will appoint a commission of one or more disinterested surveyors who, at a date and place fixed by the court in the order of appointment, must proceed to locate the lost, destroyed, or disputed corners and boundaries.¹³ The court may appoint an expert under C.R.E. 706, but cannot appoint a master under C.R.C.P. 53.¹⁴ It may be that the location and determination of lost or obliterated lines of lands in a particular section or township cannot be accurately ascertained without extending the survey to lands in other sections or townships, in which case the court has jurisdiction to do so.¹⁵ Within ten days of their appointment, the commissioners must subscribe and file with the clerk an oath for the faithful and impartial discharge of their duties. The commissioners have power to appoint all necessary assistants.¹⁶ At the time and in the manner specified in the order of court, the commission will proceed to locate the boundaries and corners and for that purpose may take the testimony of witnesses as to where the true boundaries and corners are located.¹⁷ The issue is not what the original patent description was but where it in fact existed on the ground.¹⁸ When so ascertained, the commission will mark the same by erecting or putting down permanent and fixed monuments at all corners so located. If the issue is presented, the commission must also take testimony as to whether the boundaries or corners alleged to have been recognized and acquiesced in for 20 years or more have in fact been recognized and acquiesced in.¹⁹ The proceedings may be adjourned by the commission from time to time as may be necessary.²⁰

The...