Wilson v. Howe

24CA0397 Wilson v Howe 02-06-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0397
Jefferson County District Court No. 23CV30230
Honorable Philip J. McNulty, Judge

Ingrid Stitt Wilson, in her official capacity as Trustee of the Last Straw
Revocable Living Trust,

Plaintiff-Appellant,

v.

Collin Howe, the Public Trustee of Jefferson County,

Defendant-Appellee.

JUDGMENT AFFIRMED IN PART AND REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS

Division V
Opinion by JUDGE SCHOCK
Freyre and Sullivan, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced February 6, 2025

Wilson Law Office P.C., Brian Herbert Wilson, Jr., Bailey, Colorado, for
Plaintiff-Appellant

Walsh Law, P.C., Thomas A. Walsh, Marilana S. Walsh, Golden, Colorado, for
Defendant-Appellee
¶1 Plaintiff, Ingrid Stitt Wilson, in her capacity as trustee of the

Last Straw Revocable Living Trust (the Trust), appeals the district

court’s entry of summary judgment in favor of defendant, Collin

Howe, on the Trust’s claims for lot line acquiescence, easement by

estoppel, irrevocable license, and adverse possession. We reverse

the judgment on the adverse possession claim but otherwise affirm.

I. Background

¶2 The Trust and Howe own two adjacent properties, which we

will refer to as the Trust Property and the Howe Property. The Trust

Property is a generally square parcel of property with a cabin on it,

identified as “Parcel A” and “2 story wood frame house,”

respectively, on the map below. The Howe Property is a much

larger property that wraps around the Trust Property to the east

and south, identified as “Unplatted” on the map below. A driveway

runs across the Howe Property from the southern boundary of the

Trust Property to a public road south of the Howe Property.

1
¶3 The Trust Property was owned by Jason Yardley from 1967 to

1999. For most of the time that Yardley owned the property, there

was no driveway, and he accessed the cabin via a walking path from

what is now Fisher Road on the north side of the property.

According to Yardley, he used the area around the cabin — as

2
depicted in the below map — as his own for more than twenty years

because he believed it was part of his property.1

¶4 Over time, various improvements were constructed on the area

surrounding the cabin. In 1976, Yardley built a goat shed

southwest of the cabin — outside the boundary of the Trust

Property but within the area Yardley believed was his. That shed

was later converted into a sleeping cabin, lived in by Yardley’s son,

and, more recently, used for storage by Howe’s brother. In the early

1980s, Yardley’s wife constructed a well for household purposes,

1 The Trust referred to this area as a “roughly crescent moon

shaped area” in its motion for summary judgment.

3
just east of the northern boundary of the Trust Property. From

1992 to 1999, Yardley allowed a friend, Kelley Anne Winston, to live

in the cabin. Winston made improvements to the cabin, including

the addition of a deck, and placed a large propane tank east of the

cabin, just outside the eastern boundary of the Trust Property.

¶5 The driveway to the cabin (which crosses the Howe Property)

was constructed sometime between 1992 and 1998. Although the

circumstances surrounding the construction of the driveway are

unclear, Yardley understood that it was built by Winston’s husband

“by an agreement with [the prior owner of the Howe Property] for

the benefit of [the Trust Property].” The driveway connects the

public road to the cabin and, according to Yardley, serves no

purpose other than to access the cabin. Around the same time, a

barbed wire fence was placed along the east side of the driveway.

¶6 Yardley sold the Trust Property to Winston in 1999. Two years

later, in 2001, Howe purchased the Howe Property. In connection

with that purchase, the prior owner of the Howe Property and

Winston entered into a “Permissive Use Drive Agreement,” which

granted Winston “permissive use” of the driveway “for residential

use and good neighbor ease of access use only.” The Agreement

4
stated that “no transfer of property or easement [was] involved in

this agreement.” Howe also received a land survey plat, dated 1992

and recorded in 2001, which noted that “temporary verbal

permission has been given for a roadway for the rent[e]r of [the

Trust Property] to access said lot . . . across [the Howe Property].”

¶7 In 2003, Winston died, and Howe installed a locked gate that

prevented use of the driveway by anyone other than Howe and his

family. Yardley took back possession of the Trust Property in 2005

and, until 2020, travelled there annually to perform maintenance

and upkeep. The extent to which Yardley used the driveway during

that timeframe is in dispute. But on at least one occasion in 2015,

Howe allowed Yardley to use the driveway to fix the cabin roof.

¶8 In 2020, Yardley received a sheriff’s deed to the Trust Property

and sold it to the Trust. At that time, the cabin was in disrepair,

and Howe agreed the Trust could use the driveway to work on the

cabin. But the parties dispute the scope of that permission. Howe

maintains that he granted the Trust temporary permission to use

the driveway only for purposes of repairing the cabin roof. Wilson,

the trustee of the Trust, claims that Howe “promised that he would

not cut off the driveway while [the Trust] was working on the cabin.”

5
¶9 The Trust’s work on the cabin continued for more than two

years and included the addition of a second story. But the Trust

ran into permitting problems and construction was suspended. In

March 2023, Howe locked the gate to the driveway and denied the

Trust further access over the driveway to the Trust Property.

¶ 10 The Trust filed a quiet title action, asserting claims for (1) lot

line adjustment by acquiescence, see § 38-44-109, C.R.S. 2024;

(2) easement by estoppel; (3) irrevocable license; (4) prescriptive

easement; and (5) adverse possession. Together, these claims

sought to establish the fence along the driveway as the boundary

between the Trust Property and the Howe Property (the first claim);

secure a right of access over the driveway (the second and third

claims); and expand the Trust Property to include the surrounding

area historically used by Yardley (the fourth and fifth claims).

¶ 11 Howe moved for partial summary judgment on all claims

except the adverse possession claim. The Trust moved for partial

summary judgment on all claims except lot line acquiescence.

¶ 12 The district court entered a single order resolving the parties’

cross-motions, primarily in favor of Howe. The court granted

summary judgment in Howe’s favor on the Trust’s claims for lot line

6
acquiescence, easement by estoppel, and irrevocable license. It

concluded that there was no genuine issue of material fact that

(1) the fence was never recognized as a boundary line between the

properties; and (2) any agreement for the Trust and its predecessors

to use the driveway was permissive and temporary, not permanent.

¶ 13 As to the claims for prescriptive easement and adverse

possession, the court divided the disputed area into five

components: the cabin encroachments, the goat shed, the propane

tank, the well, and the area around the cabin. The court granted

summary judgment in favor of Howe as to the goat shed and the

area around the cabin. It granted summary judgment in favor of

the Trust as to the propane tank and the well. And it denied

summary judgment as to the encroachments. Howe later confessed

judgment as to adverse possession of the encroachments.

¶ 14 The Trust filed a motion for reconsideration of the court’s

summary judgment ruling. Among other things, the motion

included a new affidavit from Daryl L. Jackson, who lived at the

Trust Property with Winston from 1991 to 1999. In the affidavit,

Jackson claimed that he built a septic tank for the prior owner of

the Howe Property in exchange for a driveway easement but that

7
the owner “doubled back on his deal” and did not record the

easement. The Trust also argued in its motion that the district

court had erred by granting summary judgment against it on its

adverse possession claim as to the goat shed and area around the

cabin, when Howe had not moved for summary judgment on that

claim. The district court denied the motion for reconsideration.

¶ 15 The Trust then filed a C.R.C.P. 59 motion, arguing that the

summary judgment order did not sufficiently define the boundaries

of the property granted to each party to allow for complete

adjudication. The district court denied that motion as well.

II. Summary Judgment

¶ 16 The Trust argues that the district court erred by granting

summary judgment in favor of Howe on the Trust’s claims for lot

line acquiescence, easement by estoppel, irrevocable license, and

adverse possession of the goat shed and the area around the cabin.2

2 The Trust does not challenge the summary judgment on its claim

for prescriptive easement other than to argue that the district court
misunderstood the claim as including the driveway. To the extent
the Trust complains that the court granted summary judgment
against it on a claim it did not make, any error is harmless.

8
A. Standard of Review

¶ 17 We review an order granting summary judgment de novo,

applying the same standard as the district court. Poudre Sch. Dist.

R-1 v. Stanczyk, 2021 CO 57, ¶ 12. Summary judgment is proper if

there is no genuine issue as to any material fact and the moving

party is entitled to judgment as a matter of law. C.R.C.P. 56(c).

¶ 18 The moving party bears the initial burden of showing the

“absence of evidence in the record to support the nonmoving party’s

case.” Cont’l Air Lines, Inc. v. Keenan, 731 P.2d 708, 712 (Colo.

1987). If the moving party meets this burden, the burden shifts to

the nonmoving party to establish a triable issue of fact. Id. at 713.

¶ 19 In determining whether this standard is satisfied, we give the

nonmoving party “the benefit of all favorable inferences that may

reasonably be drawn from the undisputed facts and resolve[] all

doubts against the moving party.” City of Fort Collins v. Colo. Oil &

Gas Assoc., 2016 CO 28, ¶ 8. But in opposing summary judgment,

the nonmoving party may not “rest on its mere allegations or

denials of the opposing party’s pleadings.” Id. Instead, it must

“provide specific facts demonstrating a genuine issue for trial.” Id.

9
B. Lot Line Acquiescence

¶ 20 The Trust first contends that the district court erred by

granting summary judgment on its lot line acquiescence claim. It

argues that there is a genuine factual dispute as to whether the

fence along the driveway was recognized as the boundary line

between the Trust Property and the Howe Property. We disagree.

¶ 21 Under the boundary by acquiescence doctrine, a physical

barrier such as a fence can replace the property line as the legal

boundary between two properties when the neighboring property

owners “mutually treat that physical barrier — and not the property

line — as the boundary between the properties for over twenty

years.” Cronk v. Bowers, 2023 COA 68M, ¶ 9; see also § 38-44-109.

To establish a boundary by acquiescence, the claimant must prove

(1) the adjacent owners’ mutual acquiescence in the fence as the

boundary line between the properties (2) for twenty years or more.

Cronk, ¶ 11. Mutual acquiescence may be demonstrated by the

claimant’s “actual possession” of the disputed property. Id.

¶ 22 Mutual acquiescence is generally a question of fact. Id. at

¶ 12. But as with any factual question, summary judgment may be

10
appropriate if the claimant is unable to point to any evidence

demonstrating a genuine issue for trial. See City of Fort Collins, ¶ 8.

¶ 23 The undisputed evidence — consisting of two different land

surveys, one conducted in 1992 and the other in 2023 — shows the

property lines between the Trust Property and the Howe Property.

As indicated on the below map, which the Trust attached to its

summary judgment briefing, the property lines for the Trust

Property end before the fence even begins.3 In other words, the

fence does not run between the two properties, as a property line

would; it runs solely across the Howe Property. Because no portion

of the Trust Property is on the other side of the fence, the fence, by

definition, cannot be a boundary line between the properties.

3 The Trust’s complaint attaches a map with a diagram of the fence

continuing north parallel to the Trust Property lot line. But
Wilson’s affidavit describes the fence as “on the lower driveway . . .
bound[ing] the driveway from the rest of the [Howe Property].” And
in any event, the Trust clarified in its summary judgment briefing
that its lot line acquiescence claim applied only to the portion of the
property west of the fenced area along the driveway.

11
¶ 24 Moreover, in Howe’s affidavit, Howe explained that the fence

was built to contain livestock on a portion of the Howe Property and

that, to his knowledge, no one had ever claimed the fence was a

boundary line between the properties. See Kelly v. Mullin, 413 P.2d

186, 188 (Colo. 1966) (affirming finding that a fence was “merely a

barrier and not a boundary line” where it served the purpose of

separating distinct portions of the property). As Howe asserted in

his affidavit, the fence “is not near any boundary between the

properties” but is “situated in the middle of [the Howe Property].”

12
¶ 25 In an attempt to create a genuine issue of material fact, the

Trust relies exclusively on the existence of the fence. But the “mere

existence of a fence with evidence of nothing more is insufficient to

sustain a finding that the fence operates as a boundary by

acquiescence.” Terry v. Salazar, 892 P.2d 391, 393 (Colo. App.

1994), aff’d, 911 P.2d 1086 (Colo. 1996). And the Trust presented

no evidence that the property owners ever treated the fence as a

boundary line between their properties. Neither Wilson’s assertion

that the fence “looks like a boundary fence” nor Yardley’s statement

that the fence was “much closer to the actual boundary line [he]

understood” shows an agreement to treat it as such. Nor is there

any evidence that the Trust or its predecessors ever actually

possessed the property to the west of the fence. See Cronk, ¶ 11.

¶ 26 Indeed, beginning in 2001, the property owners’ course of

conduct indisputably indicates that they did not treat the fence as a

boundary line but rather understood that the driveway was on the

Howe Property. First, the Permissive Use Drive Agreement —

executed in 2001 by the parties’ predecessors — says so. That

agreement would have been unnecessary if the driveway was on the

Trust Property. Second, Howe consistently exercised control over

13
the driveway starting in 2003 when he installed a locked gate and

allowed others to use it only with his permission. Although Yardley

claims that Howe “cooperated with [his] using the road,” he does

not dispute that it was on Howe’s property. Third, Wilson asserts in

her affidavit that, in purchasing the Trust Property, she relied on

Howe’s “promise[] that he would not cut off the driveway” — a

promise that, again, implied the driveway was on his property.

¶ 27 Thus, even if the property owners had acquiesced in the fence

as the boundary line when it was built in the 1990s — and there is

no evidence that they did — any such acquiescence ended in 2001

when the Permissive Use Drive Agreement was executed, and

certainly by 2003 when Howe installed the locked gate. The Trust

therefore failed to show any genuine issue of material fact as to

whether the property owners mutually acquiesced in the fence as

the boundary line for the required twenty years. See Cronk, ¶ 11.

¶ 28 Because the Trust did not present any specific facts showing a

genuine issue for trial, the district court correctly granted summary

judgment against the Trust on its lot line acquiescence claim.

14
C. Easement by Estoppel

¶ 29 The Trust next argues that the district court erred by granting

summary judgment on its claim for an easement by estoppel across

the driveway, asserting that the Trust Property owners have long

relied on the driveway to access the cabin. We disagree that the

Trust established a genuine issue of material fact on this claim.

¶ 30 A claim for easement by estoppel has three elements: (1) the

owner of the servient estate permitted another to use the land

under circumstances in which it was reasonable to foresee that the

user would substantially change position believing that the

permission would not be revoked; (2) the user substantially

changed position in reasonable reliance on that belief; and

(3) injustice can be avoided only by recognizing an easement by

estoppel. Lobato v. Taylor, 71 P.3d 938, 950–51 (Colo. 2002).

¶ 31 In Howe’s motion for partial summary judgment, Howe

presented evidence that his predecessor’s permission for Winston to

use the driveway was temporary only. First, the 1992 land survey

states that “temporary verbal permission has been given for a

roadway” across the Howe Property. Second, the 2001 Permissive

Use Drive Agreement indicates that the use was “permissive” and

15
did not create any “transfer of property or easement.” Although the

Permissive Use Drive Agreement could not have extinguished an

easement by estoppel if one had already existed, it is some evidence

that the property owners at the time understood that the driveway

access was temporary and revocable. Together, this evidence

satisfied Howe’s initial burden of showing the absence of any

evidence to support a reasonably foreseeable belief by the Trust

Property owners that the permission would not be revoked. See id.

¶ 32 The Trust presented no evidence to the contrary. Indeed, the

Trust presented no evidence — at least not by anyone with personal

knowledge — of the circumstances of the original permitted use at

all. The closest it comes is Yardley’s affidavit. Yardley explained

that it was his “understanding” that Winston’s husband built the

driveway with the agreement of the Howe Property owner. But he

acknowledged that he “did [not] know about the road for a while”

and was “not sure exactly why they built the driveway.” See

C.R.C.P. 56(e) (“[A]ffidavits shall be made on personal

knowledge . . . .”). And in any event, Yardley said nothing about

whether the supposed agreement was temporary or permanent.

16
¶ 33 There was also mention in both Wilson’s affidavit and Howe’s

deposition of an agreement between the prior property owners

under which Winston provided work on a septic system on the

Howe Property in exchange for driveway access.4 But neither

Wilson nor Howe has any personal knowledge of this purported

deal, having both purchased their properties years later. See USA

Leasing, Inc. v. Montelongo, 25 P.3d 1277, 1279 (Colo. App. 2001)

(concluding that affidavit was inadequate where it did not

affirmatively show that the affiant had any “personal knowledge of

the relevant facts”). Moreover, even if the parties’ secondhand

accounts of this agreement could be considered, the only evidence

as to its temporary or permanent nature was Howe’s testimony that

“no easement rights [or] permanent permission [were] granted.”

¶ 34 The Trust relies on the affidavit from Jackson that it

submitted with its motion for reconsideration, in which Jackson

said he built a septic system for Howe’s predecessor in exchange for

an easement. But because the Trust did not present this evidence

until after the entry of summary judgment, we may not consider it.

4 Winston was not technically an owner of the Trust Property until

1999, but we refer to her as an owner for the sake of simplicity.

17
See United States v. City of Golden, 2024 CO 43M, ¶ 77; McDonald

v. Zions First Nat’l Bank, N.A., 2015 COA 29, ¶ 85. To the extent

the Trust implies that the district court should have considered

Jackson’s affidavit in ruling on its motion for reconsideration, it

offers no persuasive explanation as to why it could not have

discovered this evidence sooner.5 See McDonald, ¶¶ 87-88.

¶ 35 We acknowledge that Winston’s construction of the driveway

and renovation of the cabin might support an inference that she

believed the access would not be revoked. But it is not enough that

Winston believed the permission would not be revoked. The Trust

must show that such belief — and a corresponding substantial

change in position — was reasonably foreseeable. See Lobato, 71

P.3d at 950-51. Given that the sole evidence in the record indicates

5 The Trust’s sole explanation for the belated submission of

Jackson’s affidavit is that “it took a number of months to locate
him.” But it was the Trust that filed this lawsuit. If Jackson’s
testimony was critical to its claim, it should have obtained that
information before filing the lawsuit or, at a minimum, in the nine
months between the filing of the complaint and the entry of
summary judgment. Indeed, at the time of the summary judgment
ruling, trial was scheduled to begin in four days. The Trust did not
present the affidavit until nine days after that scheduled trial date.

18
that the permission was temporary and permissive, the Trust did

not demonstrate a genuine issue of material fact on this point.6

¶ 36 Nor did the Trust show a genuine factual dispute as to

whether an easement by estoppel arose from Howe’s permission for

Yardley or the Trust to use the driveway. As to Yardley, although

he says Howe “cooperated with [his] using the road” and he

“expected to be able to continue to use the road,” the only evidence

of Howe’s affirmative permission is Howe’s representation that he

only granted Yardley permission to use the driveway once “for a few

weeks so that he could patch the roof” on the cabin. There is also

no evidence that Yardley substantially changed his position in

reliance on a belief that the driveway access would not be revoked.

¶ 37 As to the Trust, there is evidence of reliance. Wilson and her

son attest that the Trust purchased the Trust Property based on

Howe’s assurances that he would allow them to use the driveway.

But even Wilson and her son characterize this promise as limited in

6 It is also not clear how the Trust asserts that Winston

substantially changed her position in reliance on the driveway
access. Although she made improvements to the cabin, the
driveway is not the only way to access the cabin. It is the easiest
way, but Yardley used a different access point for decades.

19
time and scope: Howe would not cut off driveway access “while [the

Trust was] working on the cabin.” Such a conditional promise

cannot support an easement by estoppel — a permanent property

right — as a matter of law. See id. at 951 (“Whether reliance is

justified depends upon the nature of the transaction . . . .”)

¶ 38 Thus, the Trust presented no evidence demonstrating any

genuine factual dispute that it was reasonable for the Trust or its

predecessors to believe that their permission to use the driveway

would not be revoked. The district court therefore correctly granted

summary judgment on the Trust’s claim for easement by estoppel.

D. Irrevocable License

¶ 39 The Trust’s irrevocable license argument parallels its easement

by estoppel argument, and we reject it for the same reason.

¶ 40 Like an easement by estoppel, an irrevocable license arises

from the licensee’s reasonable and detrimental reliance on the

licensor’s promise to afford the licensee a particular right. See

Lobato, 71 P.3d at 951; State Dep’t of Highways v. Woolley, 696

P.2d 828, 831 (Colo. App. 1984). But the license becomes

enforceable only to the extent reasonably necessary to realize the

licensee’s reasonable expectations. Woolley, 696 P.2d at 831.

20
¶ 41 Because the evidence provides no basis for a reasonable

expectation by the Trust or its predecessors that their right to use

the driveway would be permanent, it cannot support a claim for an

irrevocable license. See id. at 829-31 (holding that “Permanent

Right of Entry” was enforceable based on licensor’s representations

as to duration of license); Patzer v. City of Loveland, 80 P.3d 908,

911 (Colo. App. 2003) (“[O]rdinarily, the license is revocable at the

will of the licensor.”); Restatement (Third) of Prop.: Servitudes

§ 2.16 cmt. f (Am. L. Inst. 2000) (“Unless additional facts suggest

otherwise, it is assumed that the parties intended that the property

owner retain the right to revoke the license at any time.”).

¶ 42 Moreover, to the extent the Trust relies on an alleged promise

made by Howe’s predecessor to Winston, its claim fails for another

reason. Unlike an easement, a license is not a property right.

Hinsdale Cnty. Bd. of Equalization v. HDH P’ship, 2019 CO 22, ¶ 43.

It is instead a “personal privilege to do some act . . . upon the land

of another not involving possession of an estate or interest therein.”

Roaring Fork Club, LLC v. Pitkin Cnty. Bd. of Equalization, 2013 COA

167, ¶ 41 (citation omitted). Thus, even if Winston had an

irrevocable license to use the driveway, that right was personal to

21
Winston and did not pass to the Trust with the title to the Trust

Property. See Radke v. Union Pac. R.R. Co., 334 P.2d 1077, 1087

(Colo. 1959) (“Ordinarily a license is not assignable by the licensee

without the consent of the licensor . . . .”).

E. Adverse Possession

¶ 43 The Trust contends that the district court erred by granting

summary judgment on portions of its claim for adverse possession

because (1) Howe did not move for summary judgment on that

claim, and (2) the district court improperly divided the disputed

area into individual components rather than considering the area

as a whole. On this claim, we agree that the district court erred.

1. Sua Sponte Summary Judgment

¶ 44 The Trust moved for summary judgment on its claim for

adverse possession. Howe explicitly did not. To the contrary, Howe

confirmed in his motion for partial summary judgment that the

adverse possession claim was “not the subject of this Motion.” The

district court nevertheless granted summary judgment in favor of

Howe and against the Trust as to portions of the disputed area.

Under the circumstances of this case, we conclude this was error.

22
¶ 45 A district court is not categorically precluded from entering

summary judgment sua sponte. Marks v. Gessler, 2013 COA 115,

¶ 52. But such a ruling is “unusual” and may be reversible error if

the rights of the party against whom summary judgment is entered

are not adequately protected. ISG, LLC v. Ark. Valley Ditch Ass’n,

120 P.3d 724, 730-31 (Colo. 2005). To protect the party that loses

its claim, the district court “must provide an adequate opportunity

to present legal argument and to assert contested facts that would

render summary judgment inappropriate.” Id. at 730.

¶ 46 The district court’s ruling on the adverse possession claim did

not afford the Trust this opportunity. That ruling was based

primarily on arguments made in Howe’s response to the Trust’s

summary judgment motion. None of those arguments were

included in Howe’s motion because Howe did not move for

summary judgment on that claim. See Wallman v. Kelley, 976 P.2d

330, 332 (Colo. App. 1998) (“An issue not raised by the moving

party in the [initial] motion or brief cannot serve as the basis for

summary judgment because the non-moving party is not put on

notice as to the need to present evidence concerning that issue.”).

23
¶ 47 Although the Trust had the opportunity to respond to these

arguments in its reply in support of its own motion, it was solely in

the posture of asserting there was not a genuine issue of material

fact rather than that there was. In that posture, it had no reason to

“assert contested facts.” ISG, 120 P.3d at 730. Instead, it had to

show there were no such facts. Moreover, to the extent the Trust

did attempt to contest the facts asserted in Howe’s response

through supplemental affidavits, the district court struck those

affidavits as an attempt to raise new facts and arguments in a reply.

¶ 48 As one example, the district court granted summary judgment

for Howe with respect to the goat shed based on a theory first raised

in Howe’s response — that even if the Trust’s predecessors had

adversely possessed the shed before 2003, Howe regained

ownership by possessing it under the color of title and paying taxes

on it since then. See § 38-41-108, C.R.S. 2024. The Trust urged

the court not to consider this argument because it was not raised in

Howe’s pleadings. But because Howe had not moved for summary

judgment on this basis, the Trust had no notice that it needed to

present evidence to refute it. See Wallman, 976 P.2d at 332.

24
2. Division of Disputed Property

¶ 49 We also are not convinced that the district court’s ruling was

correct on the merits such that its procedural error was harmless.

See ISG, 120 P.3d at 731 (affirming sua sponte dismissal where

there were sufficient legal grounds for the dismissal); Union Ins. Co.

v. Hottenstein, 83 P.3d 1196, 1203 (Colo. App. 2003) (holding that

district court’s error in prematurely granting summary judgment

was harmless where that ruling was correct on the merits).

¶ 50 To obtain ownership of real property by adverse possession, a

claimant must prove that their possession was “actual, adverse,

hostile, under a claim of right, exclusive, and uninterrupted” for a

period of eighteen years. Trask v. Nozisko, 134 P.3d 544, 549 (Colo.

App. 2006); see also § 38–41–101(1), C.R.S. 2024. When the

boundaries of the land claimed by adverse possession are not

established by fences or other barriers, the adverse possessor may

claim only the land actually occupied. Trask, 134 P.3d at 549.

Whether possession is hostile, actual, exclusive, and adverse is a

question of fact. Lensky v. DiDomenico, 2016 COA 89, ¶ 22.

¶ 51 But actual occupancy does not require “constant, visible

occupancy or physical improvements on every square foot of the

25
parcel claimed.” Smith v. Hayden, 772 P.2d 47, 52 (Colo. 1989).

Instead, the adverse possessor “need only act as the average

landowner would in utilizing the land for the ordinary use of which

it is capable.” Schuler v. Oldervik, 143 P.3d 1197, 1203 (Colo. App.

2006). The nature of the property is therefore “critical” to what

constitutes actual possession. Smith, 772 P.2d at 55. Any “actual

visible means” that give notice of the exclusion of others and

dominion over the property is sufficient. Id. at 52 (citation omitted).

¶ 52 Thus, multiple physical improvements on a single disputed

parcel of property can prove actual occupancy of the entire parcel.

See id. at 55 (holding that plaintiff’s maintenance of a drainage

ditch on the rear portion of property and use of the front portion “as

a driveway, parking, picnic and play area” demonstrated actual

occupancy of entire parcel); Holland v. Sutherland, 635 P.2d 926,

928 (Colo. App. 1981) (holding that “the existence of a small water

spigot and a 24-30 inch high gas meter,” together with the storage

of equipment on the property, was sufficient to support a finding of

actual possession); cf. Concord Corp. v. Huff, 355 P.2d 73, 76 (Colo.

1960) (holding that the erection of a TV antenna on a portion of a

ten-acre pasture did not constitute possession of the property).

26
¶ 53 Here, the Trust asserted a claim of adverse possession of the

entire “crescent moon shaped area” around the cabin, as depicted

in the diagram attached to Yardley’s affidavit. Although the Trust

described the area as containing several improvements — including

the cabin, a goat shed, a propane tank, a well, and an outhouse —

its motion made clear that its claim encompassed the entire area.

The district court, however, separated each of the individual

improvements from the land itself. In doing so, it concluded that

there was no genuine factual dispute that the Trust’s predecessors

had adversely possessed the propane tank and well but not the

“crescent-shaped area” in which the propane tank and well were

located or the goat shed that was also located within that area.

¶ 54 The district court’s analysis effectively required the Trust to

show “constant, visible occupancy or physical improvements on

every square foot of the parcel claimed.” Smith, 772 P.2d at 52. For

example, the court relied on Trask, 134 P.3d at 550, to conclude

that Yardley’s activities on the disputed area would not put the

Howe Property owners on notice that Yardley was making use of the

land. But the court’s rulings with respect to the propane tank and

well undermine this conclusion. The court also acknowledged the

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evidence that the Trust’s predecessors had used the goat shed from

1976 to 2003. The use of the propane tank, well, and goat shed

created a genuine issue of material fact as to whether the Howe

Property owners had notice that the Trust’s predecessors were

making use of at least some portion of the disputed land. See id.

¶ 55 We also disagree with the district court’s conclusion that

Yardley’s affidavit did not establish a triable issue as to whether

Howe and his predecessors had notice of Yardley’s use of the

disputed area. See id. at 549. Most significantly, Yardley built a

shed on the area, which was later converted to a sleeping cabin and

served as Yardley’s son’s home for more than ten years. See id. at

550 (noting that “the construction of a flower or vegetable garden

and a protective fence . . . certainly would put the owners on notice

of the use,” and “plant[ing] irises and stack[ing] wood . . . might be

sufficient”). Beyond that, Winston parked cars, stored property,

and in addition to the propane tank, placed gas lines and water

lines in the area. See Smith, 772 P.2d at 55. The primary issue in

Trask was not that the claimed uses were insufficient to put the

owners on notice; it was that the uses were either not on the

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disputed property or not for the full statutory period. See Trask,

134 P.3d at 549-50. Neither of those elements is at issue here.

¶ 56 None of this means that by showing use of any portion of the

land, however small, the Trust was necessarily entitled to all of it.

See Concord Corp., 355 P.2d at 77 (“The placing of a few

improvements or structures is not a taking of possession

thereof . . . .”). That is particularly true where, as the district court

noted, the disputed area “appears to be arbitrarily designed to give

[the Trust] certain required setbacks.” See Trask, 134 P.3d at 550.

¶ 57 But the specific boundaries of the area that the Trust or its

predecessors adversely possessed, if any, is itself a material factual

dispute. Indeed, consistent with Howe’s decision not to move for

summary judgment on the adverse possession claim, he asserted in

his response to the Trust’s summary judgment motion that the

location of the disputed property presented a factual dispute. We

agree. Yardley’s affidavit describing his use of the surrounding area

his map outlining the area of use, and the district court’s rulings as

to the propane tank, well, and goat shed all raise a genuine issue of

material fact as to (1) whether the Trust and its predecessors

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adversely possessed the area surrounding the cabin; and (2) if so,

the boundaries of the area they adversely possessed.

¶ 58 We therefore reverse the summary judgment against the Trust

on its claim for adverse possession of the crescent-shaped area

around the cabin, including the goat shed, and we remand for

further proceedings on that claim. In doing so, we express no

opinion on the merits of Howe’s argument under section 38-41-108.

III. Post-Summary Judgment Proceedings

¶ 59 The Trust makes various references throughout its brief to its

motion to reconsider and its motion for post-trial relief under

C.R.C.P. 59. But the Trust does not develop any argument

concerning the denial of these motions independent of its

arguments as to the summary judgment order. We therefore do not

consider the district court’s denial of the Trust’s motion for

reconsideration or its Rule 59 motion. See Woodbridge Condo.

Ass’n v. Lo Viento Blanco, LLC, 2020 COA 34, ¶ 41 n.12 (“We don’t

consider undeveloped and unsupported arguments.”), aff’d, 2021

CO 56. As to the Trust’s argument that the court should have more

precisely defined the boundaries of the area adversely possessed,

we have noted above that this issue presents a factual dispute.

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¶ 60 The Trust also takes issue with the district court’s demeanor

during a brief hearing on what was supposed to be the first day of

trial, four days after the summary judgment ruling. It asserts that

the court’s comments indicated bias. We disagree. We see nothing

in the record to indicate that the court acted inappropriately. It

simply made the eminently reasonable point that, if the Trust

intended to move for reconsideration of the summary judgment

ruling, it did not make sense to proceed to trial before that motion

was filed. To the extent the Trust bases its claim of bias on the

district court’s rulings, that claim also fails. See Schupper v. People,

157 P.3d 516, 521 n.5 (Colo. 2007) (“[R]ulings of a judge, although

erroneous, numerous and continuous, are not sufficient in

themselves to show bias or prejudice.”) (citation omitted).

IV. Disposition

¶ 61 The summary judgment on the Trust’s adverse possession

claim is reversed, and the case is remanded for further proceedings

consistent with this opinion. The judgment is otherwise affirmed.

JUDGE FREYRE and JUDGE SULLIVAN concur.

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