Dwight v. Morfitt

20CA1671 Dwight v Morfitt 11-10-2021

COLORADO COURT OF APPEALS

Court of Appeals No. 20CA1671

Gilpin County District Court No. 18CV30004

Honorable Dennis J. Hall, Judge

Joshua Dwight,

Plaintiff-Appellee,

v.

Becky Morfitt,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VII

Opinion by JUDGE NAVARRO

Grove and Pawar, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced November 10, 2021

Moye White LLP, Jack W. Berryhill, Rachel E. Yeates, Kelsey R. Bowers,

Denver, Colorado, for Plaintiff-Appellee

Coaty Marchant Woods, P.C., John D. Coaty, Anita L. Marchant, Dylan Woods,

Natalie R. Norcutt, Evergreen, Colorado, for Defendant-Appellant

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¶ 1 Defendant, Becky Morfitt, appeals the judgment entered in

favor of plaintiff, Joshua Dwight, resolving a dispute over property

ownership. We affirm.

I. Background

¶ 2 In 1992, Morfitt purchased a property in Gilpin County from

Leo and Jean McDonald (the Morfitt Property). Directly to the west

of the Morfitt Property is property owned by Dwight (the Dwight

Property). Dwight bought it in 2017 from Norm Hicks, who had

inherited it from his mother in the mid-1970s. Hicks’s mother

purchased the Dwight Property in 1961.

¶ 3 A barbed wire fence runs north to south between the northern

confluence of both properties and Smith Hill Road. At the south

end of the barbed wire fence — where it meets Smith Hill Road — is

a gated driveway leading onto the Dwight Property. The area

between the barbed wire fence and the western surveyed boundary

of the Morfitt Property, including the gated driveway, is the subject

of the parties’ dispute. We refer to this approximately 0.5-acre area

as the “Disputed Property,” and it is diagramed below.

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¶ 4 In June 2017, Dwight began constructing a log fence parallel

to and on the western side of the barbed wire fence. Morfitt

confronted Dwight and told him that he was on her property.

¶ 5 After the parties could not settle their dispute, Dwight filed the

present action seeking to quiet title to the Disputed Property. As

relevant here, Dwight argued that he and his predecessors in

interest had adversely possessed the Disputed Property and,

alternatively, that the parties and their predecessors in interest had

acquiesced to the barbed wire fence as the boundary between the

properties. Morfitt counterclaimed, also seeking to quiet title to the

Disputed Property.

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¶ 6 After a bench trial, the trial court issued a written order

finding that Dwight and his predecessor in interest, Hicks, had

adversely possessed the Disputed Property. As an alternative basis

on which to find that Dwight owned the Disputed Property, the

court found that the parties and their predecessors in interest had

acquiesced to the barbed wire fence as the boundary between the

two properties. In a separate order, the court issued a quiet title

decree to the Disputed Property in favor of Dwight.

¶ 7 In a later minute order, the trial court awarded Morfitt $7,280,

the value of the Disputed Property. Morfitt accepted a check from

Dwight for that amount, less Dwight’s awarded bill of costs and half

the cost of a survey of the Disputed Property, and cashed it. She

also signed a quitclaim deed per the court’s order.

II. Acquiescence

¶ 8 Among other contentions, Morfitt contends that the trial court

clearly erred by finding that the parties and their predecessors in

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interest had acquiesced to the barbed wire fence as the property

boundary. We are not persuaded.

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A. Applicable Principles

¶ 9 Under section 38-44-109, C.R.S. 2021, “if it is found that the

boundaries and corners alleged to have been recognized and

acquiesced in for twenty years have been so recognized and

acquiesced in, such recognized boundaries and corners shall be

permanently established.” Thus, where property owners place a

fence somewhere other than the true boundary dividing the

properties and then, for twenty years thereafter, conduct

themselves as to indicate that they claim no property interest

beyond the fence, a court may find that the parties acquiesced to

the fence as the property boundary. Hartley v. Ruybal, 160 Colo.

80, 85, 414 P.2d 114, 116 (1966).

¶ 10 There must be “mutuality in the fixing of a boundary in order

for acquiescence to be found.” Id. at 84, 414 P.2d at 116. Where

acquiescence is shown, it is binding upon the parties and their

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Given our disposition, we need not resolve Dwight’s claim that

Morfitt waived this contention by accepting the benefit of the trial

court’s judgment.

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successors in interest. Forristall v. Ansley, 170 Colo. 391, 396, 462

P.2d 116, 119 (1969).

¶ 11 Acquiescence to a property boundary is a question of fact.

Terry v. Salazar, 892 P.2d 391, 393 (Colo. App. 1994), aff’d, 911

P.2d 1086 (Colo. 1996). A trial court’s factual findings are binding

on appeal unless they are so clearly erroneous as to find no support

in the record. St. Jude’s Co. v. Roaring Fork Club, L.L.C., 2015 CO

51, ¶ 34.

B. Analysis

¶ 12 The following evidence supports the trial court’s finding.

¶ 13 Hicks, Dwight’s predecessor in interest, testified that he

believed the fence existed long before his mother purchased the

Dwight Property in 1961. Despite some ambiguity surrounding the

fence’s origin, Hicks testified that he had considered the fence to be

his property’s eastern boundary. Accordingly, Hicks and his family

and friends conducted their activities on the property to the west of

the fence. When Hicks sold Dwight the property, Hicks represented

that the fence was the property line. Neither Hicks nor Dwight ever

conducted activities east of the barbed wire fence.

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¶ 14 Hicks also testified to an incident involving a Boy Scout retreat

on his property. At that time, Jean McDonald (Morfitt’s predecessor

in interest) complained that a scout had crossed onto her property

to ask to use the telephone. In response, Hicks instructed the

scouts not to do that anymore, “not to bother the neighbors.” When

asked at trial whether the scout had “gone over on the other side of

that barbed wire fence,” Hicks said, “Not to my knowledge.”

¶ 15 On appeal, Morfitt cites this testimony as proof that Hicks did

not consider the fence to be the property boundary. Read in

context, however, it seems that Hicks meant merely that he did not

have personal knowledge of whether the scout had crossed the

fence line. Hicks duly reacted to his neighbor’s complaint that the

scout had done so. In any event, to the extent the evidence of

Hicks’s acquiescence to the fence as the property line was

conflicting, it was the trial court’s province to resolve the conflict.

See In re Marriage of Hatton, 160 P.3d 326, 335 (Colo. App. 2007).

And there is ample record support for the court’s finding that Hicks

recognized the fence as the property line.

¶ 16 Additionally, the record supports the court’s finding of

acquiescence by Morfitt and her predecessors in interest. Jean

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McDonald testified that, when she and her husband owned the

Morfitt Property, they believed the barbed wire fence represented

the property line. Her husband even performed maintenance on it.

¶ 17 After purchasing the Morfitt Property, Morfitt installed a “dog

run” that abutted the east side of the barbed wire fence. She did

not extend the dog run to the west of the fence. She testified,

however, that she never considered the fence as representing the

property line. She further testified that she considered the fence to

be a safety hazard, but she never attempted to repair or remove it.

¶ 18 After considering all the evidence, the court declined to credit

Morfitt’s testimony that she did not consider the fence as marking

the property line. The court gave the following explanation:

The court finds that Ms. Morfitt acquiesced in

the barbed wire fence as the property line

separating her parcel from the Dwight

property. Ms. Morfitt conducted herself with

respect to the land on each side of the fence so

as to indicate that she claimed no property

west of the fence. She exercised control and

dominion over the land up to the barbed wire

fence on the east side by constructing a dog

run that abutted the fence. The court heard

no evidence of similar uses by Ms. Morfitt of

the land on the west side of the barbed wire

fence. Why would Ms. Morfitt make

improvements to only one side of the fence and

leave the other side untouched unless she

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believed the fence to represent her property

boundary? Similarly, in locating the dog run

so that it ran alongside the east side of the

fence, Ms. Morfitt indicated her recognition of

the boundary of her property. This is also

shown by her failure to remove the barbed-

wire fence. Her conduct indicates that she

recognized the barbed wire fence as the

property boundary and that she claimed no

property west of that fence.

¶ 19 Morfitt argues that the trial court should have given more

weight to her testimony and less weight to Jean McDonald’s

testimony (which Morfitt describes as “poorly informed”). As noted,

however, the credibility of witnesses, the sufficiency, probative effect

and weight of the evidence, and the inferences and conclusions to

be drawn therefrom are all within the trial court’s province. E.S.V.

v. People in Interest of C.E.M., 2016 CO 40, ¶ 24. We may not

second-guess those decisions where, as here, the record provides

support for them.

¶ 20 We also disagree with Morfitt’s suggestion that the court’s

analysis was improper as a matter of law because the court asked a

rhetorical question. In assessing her credibility, the court correctly

considered the reasonableness or unreasonableness of her

testimony, the consistency or lack of consistency of her testimony,

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and any other circumstances that affected her credibility. See

Holley v. Huang, 284 P.3d 81, 86 n.3 (Colo. App. 2011).

¶ 21 In sum, because the record supports the trial court’s finding

that the parties and their predecessors in interest acquiesced to the

barbed wire fence as the boundary between the properties for the

statutory period, we may not disturb that finding.

III. Other Contentions and Costs of Appeal

¶ 22 Morfitt also challenges the trial court’s adverse possession

ruling. We need not reach that challenge, however, because we

affirm the court’s decision that Dwight owns the Disputed Property

due to the acquiescence to the barbed wire fence as the property

boundary.

¶ 23 Finally, we grant Dwight’s request for an award of costs

incurred in this appeal. See C.A.R. 39(a)(2).

IV. Conclusion

¶ 24 The judgment is affirmed.

JUDGE GROVE and JUDGE PAWAR concur.