Land dispute judge: 'I was right'

Judge James Kle

A district judge in Boulder, Colo., who earlier awarded a former judge and his wife a substantial portion of a neighbor's nearly million dollar parcel of land, has reviewed the case and concluded he was right.

The decision comes from Judge James C. Klein in a ruling dated Monday, and sets the stage for an appeal to the Colorado Court of Appeals by the couple whose land was taken under the order from Klein and awarded to retired Judge Richard McLean and his wife, Edith Stevens.

The couple who lost the property, Don and Susie Kirlin, had asked the appellate court to return the case to Klein to allow him to review a motion to overturn his own verdict because of additional evidence.

But Klein was unconvinced he should change his decision, especially since he went to the land in question and investigated for himself.

The dispute circles around an undeveloped residential parcel that belonged to the Kirlins in a pricy Boulder subdivision. The retired judge and his wife have a home on the adjacent property, and sued the Kirlins for ownership of their undeveloped land under a state law that allows someone to claim ownership if there's proof of extended "adverse possession," that is open and notorious use of someone else's property.

The center of the proof was a path, described by the court as "Edie's path," which McLean and Stevens alleged had been built and used by them over many years. The Kirlins said they were at their property periodically and didn't notice it until the dispute actually developed in court.

Klein's original decision awarded the retired judge and his wife ownership of a large section of the Kirlin property, to the point they don't believe they would be able to use the rest of it, essentially making it worthless.

The Kirlins then asked the appeals court to have Klein review his decision, based on what they described as new evidence, including affidavits from neighbors who saw Stevens doing what they assumed to be making the path during the dispute, and aerial photographs they said did not show the path during the time frame it was alleged to have been there.

Klein, in his ruling, said he was right all along.

"Defendants have failed to meet the requisite burden of proof required to set this order aside," he concluded.

The judge said he had inspected the property himself, and reviewed the various testimonies and photographs submitted, and he questioned the truthfulness of affidavits submitted by the Kirlins, as well as their intentions. Specifically, he challenged an affidavit from William Stone, a survey crew member who said he did not see evidence of a "path" across the property in 2007.

"Having reviewed the photographs referenced by Mr. Stone, and having personally viewed the site on two occasions, the Court notes that many of the photographs memorialize what the court saw: a worn dirt and native grass footpath…" he wrote

Klein also said he believed a 1993 photograph "depicts a light area in the location of Edie's Path on the west side of Plaintiff's property that clearly shows the upper portion of the 'path' at issue here, and certainly can be construed as indicating the lower portion of the subject path as well as extensive use of Defendant's property."

One of the requirements of Colorado's adverse possession law is that the person trying to gain ownership of the land prove that he or she used it for more than 18 years.

The judge accused the Kirlins of "purposefully mislead[ing]" him with their evidence.

"I think it completely affirms our position," McLean told the Boulder Daily Camera. "The court's duty is to ignore the public perception of the case and apply the facts as he finds them to be."

Susie Kirlin told the newspaper: "We are dismayed that the judge brushed aside the overwhelming evidence that the path across our land was created after this lawsuit was filed. We gave the judge a national expert's analysis of seven aerial photographs taken between 2004 and 2007, proving that the first time the path appeared was in 2007."

She also said she was disappointed the judge refused to hold a hearing on the dispute.

"We requested a hearing so that the judge could fully understand the scientific support for that proof," Susie Kirlin told the newspaper. "We are shocked that the judge refused to hold a hearing, disregarded the expert's analysis, and claimed he could see the path in a 2003 aerial photo that not even McLean and Stevens argued showed the path."

She said an appeal is being planned.

On the newspaper's forums page, the comments almost exclusively were critical of Klein and the plaintiffs.

"All I can say is wow. What a total crock. If I can find one positive in this, it's that the publicity from this case helped change the law," said dludler.

The Colorado Legislature did, in fact, rewrite the law to make it harder for people to take ownership of their neighbor's property.

"This really gives one faith in our criminal justice system … Just one good ol boy looking out for another. So much for right & wrong," said flyfisher64.

"Of course he didn't reverse his ruling. That would have kept him off the party list for the Boulder Good Ol' Boys club. May they all enjoy their time in hell – No Ice water for you!" added BlindLemonFishStix.

The Kirlins had estimated their land at one point to have had a value of around $800,000. But they say with the loss by about one-third of the land, the site now is unbuildable.