The appeal involves competing claims to approximately sixty-three acres. Plaintiffs claim the area described by their deeds includes areas west of the Chama River; Defendant claims their common boundary is the river. There’s 36 acres that are in dispute. Plaintiff presented a chain of title and claims to have always considered the land in dispute hers.
“The trial court wrote a decision letter following trial, indicating that Plaintiffs had shown the requisite elements of adverse possession by clear and convincing evidence, that all parties had recognized the Sargent-Theis fence as their mutual boundary, and that Plaintiffs held paramount record title.” Plaintiff claims she always let her sheep out in the area and was never challenged by Defendant.
Defendant claimed the fence was more of an internal fence and that it was impractical to fence along the river’s edge because it would wash out each spring. Defendant’s ranch hand testified that he saw Plaintiff’s cattle and sheep 5 or 6 times per year and would personally herd them back beyond the river’s edge.
Whether Plaintiff “failed to establish exclusivity of use because other members of the community allowed their cattle to graze on the disputed tract.”
No, reversed. Allowing other members of the community use of the land is a factor that is not inconsistent with acts of ownership of the land, as in it will not “destroy” Plaintiff’s claim of exclusivity. “If one can show that he exercised dominion and control over the property, and consistent with that control permitted others to occasionally use the property, exclusivity is not destroyed.” Therefore, the trial court’s conclusion that exclusivity was achieved by virtue of neighborly permissive use cannot be the basis for dismissing the case.
Furthermore, the court held that Defendants did not need to be “put on notice” that their property was claimed via adverse possession. Because Plaintiffs established “color of title.” “It is enough that ‘visible and notorious acts of ownership are manifested.’”
The nature of the property is also an important consideration. The nature of the property was such that it could only be used for grazing. Because of this fact, the Plaintiff’s sole use of the property for purposes of grazing satisfies “actual and visible, or open, possession over the disputed area.”