Chapter 8 - § 8.1 • GENERAL CONSIDERATIONS

• Jurisdiction: Colorado

§ 8.1 • GENERAL CONSIDERATIONS

§ 8.1.1—Introduction

The term "estate" is sometimes used to refer to all of the property of a person¹ or a debtor;² to property of decedents, minors, or mental incompetents;³ or to property passing from a decedent.⁴ In the field of real property law, an estate is "an interest in land which (a) is or may become possessory; and (b) is measured in terms of duration."⁵

Not every interest relating to land is an estate. For example:

• A power of termination is not an estate; it is merely the possibility that the grantor may come into an estate in the future.⁶
• An agreement restricting the use of land is not a transfer of an estate or an interest in land or a trust or a power over land⁷ and one's right to enforce such an agreement is not a property interest compensable in an eminent domain proceeding.⁸

Occupancy

At common law, right of occupancy, strictly so called, was limited to the single instance where a man was tenant pur autre vie, or had an estate granted to himself only (without mentioning his heirs) for the life of another, in which case on the death of the tenant during the life of the cestui que vie, the estate did not descend⁹ but he who first entered the land might lawfully retain possession by right of occupancy, so long as the cestui que vie lived.¹⁰

Upon the organization of the Colorado Territorial government in 1861, the fee to the lands within its borders was in the United States. Settlers located upon farming lands, upon mining claims, and town lots, and claimed them by virtue of this occupancy. The United States provided for surveys, for homesteads and preemption, for entry in person and in trust, all looking to the acquisition of the fee by the occupant. Having the fee in view, in many instances large sums were invested, and not infrequently these claims and their improvements constituted the entire property of the occupant. Thus a new wealth was produced, and extensive and valuable interests grew up springing out of and not attached inseparably to lands, and dependent entirely upon title by occupancy. It was the universal tenure by which lands were held and enjoyed.¹¹ Under the various federal mining, preemption, and homestead statutes, the right of the claimant was a possessory right. Nevertheless, by settling upon the public domain of the United States and filing a declaratory statement, a person acquired no interest in the land itself as against the United States or its grantees,¹² but only an inchoate right which, upon compliance with the requirements of law, ripened into title.¹³ The Territorial Legislature recognized the right to occupy, possess, and enjoy the public domain of the United States, and provided for the establishment and protection of such rights, subject to the paramount rights of the United States.¹⁴ (A homestead entryman under federal law prevails as against an occupant who claims under state law.¹⁵ ) Thus, title by occupancy alone is an interest in real estate, and such interest is assignable.¹⁶ Where a person is occupying a portion of the public domain, in the absence of evidence to the contrary, there arises a presumption that he or she is rightfully there and possesses an estate or interest in the property.¹⁷

Prior to the enactment of the Taylor Grazing Act,¹⁸ there was an implied license to graze upon the public lands of the United States.¹⁹

One who lives in an apartment with the consent of the lessee has standing to challenge a warrantless search of the apartment.²⁰

Possession

A "possessory interest" is a right to possess and use property that is less than the substantial equivalent of complete ownership.²¹

Title by possession, where it was a mere naked possession, without apparent right, shadow, or pretense to hold or continue such possession, was the lowest and most imperfect title known to the common law. The legal owner could put an end to the possession at any time by entry, but until some act was done by him to divest this possession and assert his title, such actual possession was prima facie evidence of legal title in the possessor, and by lapse of time and negligence of the owner, it ripened into a perfect title. If the disseisor or other wrongdoer died possessed of the land, the right of possession descended to the heir, and he could not be divested by entry, but only by action at law.²²

In Colorado, naked possession without color of title or right of possession is not a property right, and the possessor is merely a trespasser.²³ But an entryman on the public domain has a possessory right good against everyone except the United States,²⁴ and relinquishment of such possession may be consideration for a contract, whether the entry be valid or void.²⁵

Proof of possession and use is prima facie evidence of the ownership of a water right.²⁶

§ 8.1.2—Classification of Estates

Legal vs. Equitable

A legal estate is that kind of estate which was properly cognizable in the courts of common law. An equitable estate is that estate an interest in which could only be enforced in a court of equity.²⁷ Equity regards an equitable estate as the real ownership and the legal estate as a mere shadow. Thus, a contract purchaser of real property has an equitable interest in...