Opinion
April 6, 1971.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 129
Samuel J. Eaton, Denver, for plaintiff in error.
Petersen, Evensen & Mattoon, Maurice A. Evensen, Pueblo, for defendants in error.
COYTE, Judge.
This case was transferred from the Supreme Court pursuant to statute.
The defendants Lynn R. Hoopes and Iris Hoopes are record title owners of land located in Section 31, T. 20 S., R. 63 W. The defendants P. E. Francis, P. L. Francis, Edna Francis and Donald Francis have an interest in this property by reason of a recorded agreement for sale. For the purposes of this opinion, however, they shall be referred to merely as the defendants, the position they appeared in at trial. Plaintiff, Iris Eaton, is the owner of lots in a subdivision labeled respectively, 22, 27, 28, 29 and 30, located in Section 31, T. 20 S., R. 63 W. She brought this action to quiet title in herself to a certain tract of land located immediately south of her lots. This tract of land, referred to as Tract A, was also claimed by defendants. The trial court found in defendants' favor and plaintiff appeals.
The assertions of error deal with the findings made by the court, the admission of two of defendants' exhibits, the continuance of the trial, and the trial court's failure to allow plaintiff to amend her complaint.
Plaintiff claims title to Tract A by adverse possession. Tract A is located immediately south of plaintiff's lots 29 and 30 which lie adjacent to each other. The east line of Tract A represents a southerly extension of the east line of lot 30 and the west line represents a southerly extension of the west line of lot 29, both to the north line of the Arkansas River in its present location a distance of approximately 1700 feet. The river formerly ran along the south boundary lines of lots 29 and 30. By reason of a flood in 1921, the river course was shifted to the south and the south line of Tract A is now adjacent to the river in its present channel and the north line of said tract is adjacent to the south line of said lots 29 and 30.
In order to prove ownership by adverse possession as against the record owner, it is necessary to prove all the elements of such possession, including the fact that plaintiff's use of the land was exclusive and uninterrupted for the statutory period. Segelke v. Atkins, 144 Colo. 558, 357 P.2d 636.
Here evidence of possession and use by the parties was sharply conflicting at trial. The court, being the trier of fact, had the duty to determine what the facts actually were in case of conflicting evidence and to make all determinations of credibility. Baumgartner v. Tweedy, 143 Colo. 556, 354 P.2d 586. As the appellate court, our function is not to make factual determinations, but to review the evidence in light of the trial court's findings to determine if this evidence is sufficient to support those findings. If they are, then such findings of fact are binding upon appeal. Ruston v. Centennial Real Estate & Investment Co., 166 Colo. 377, 445 P.2d 64.
Here there was evidence that plaintiff and her predecessors in title had fenced Tract A and used it for pasture. Evidence was also in the record to show that defendants and their predecessors had made use of the land during the same period for pasture and timber cutting, and had in fact leased the land at one point. The trial court found that both parties had made use of the land during the statutory period, and this finding being supported by the evidence is binding. Ruston, supra.
Therefore, plaintiff's claim to Tract A by adverse possession must fail because she merely succeeded in establishing that her use of the tract was mutual with the defendants. She failed to prove exclusive possession, a necessary element to adverse possession. Dzuris v. Kucharik, 164 Colo. 278, 434 P.2d 414.
The plaintiff objected to the admission of both a survey and the abstract of title showing defendants' record title to the disputed tract. The survey, purporting to show the position of plaintiff's two lots, Tract A, and the location of defendants' land, was objected to on the grounds that this survey or plat was not made on the land itself, but was based upon other surveys or plats whose accuracy was not established, and therefore according to plaintiff the accuracy of the survey objected to was not established.
The evidence shows that this surey was based upon the official plat recorded in 1895 showing the locations of plaintiff's lots, as well as plaintiff's own plat submitted in order to show the location of her lots in relation to Tract A. According to defendants' surveyor, he tied his survey in with the official plat and plaintiff's own exhibit. Since no objection appears to the introduction of the official plat, and since plaintiff cannot object to the accuracy of her own, survey, the survey made by the defendants' surveyor may be presumed to have been based upon accurate plats and surveys, and therefore is admissible as an accurate description of the properties in question. In addition, the surveyor testified that the survey accurately portrayed the actual location of Tract A on the ground in relation to plaintiff's property.
The abstract of title was introduced by defendants to show record ownership of certain lands in Section 31, T. 20 S., R. 63 W. Plaintiff maintains that this abstract standing alone was immaterial because no showing was made that the description in the abstract covered Tract A. The survey made by defendants shows Tract A to be within the description of the property certified to by the abstract. In addition, the surveyor testified that Tract A is included within the description of the property as described in the abstract. Since the survey was accurate, the objection to the introduction of the abstract into evidence was without merit. Accordingly, defendants established themselves as record owners of Tract A.
Plaintiff has also objected to the trial court's continuing the case after the defendant rested. The trial court has discretion in such matters and, absent an abuse of this discretion, it may on its own motion reopen a case in order to permit a party to present new evidence. Clopine v. Kemper, 140 Colo. 360, 344 P.2d 451; French v. Guyot, 30 Colo. 222, 70 P. 683. The record reveals that the trial court on its own initiative continued the case in order that evidence to establish the location of the various properties in question might be produced, in that the evidence then before the court did not tie the surveys in to any existing monument. Under the circumstances, the continuance by order of court for the purpose of procuring additional evidence tying the surveys in evidence into a definite monument so as to enable the court to reach a valid decision does not constitute an abuse of discretion.
Finally, plaintiff argues that the trial court erred in refusing to permit plaintiff to amend her complaint to allege ownership of Tract A by accretion. Accretion occurs when the boundary of a property rests upon a stream or river, and over the long passage of time the stream gradually and imperceptibly shifts its course. As it does so, the boundaries of the property shall move in accordance with the shifting banks of the river. Smith v. Town of Fowler, 138 Colo. 359, 333 P.2d 1034. Here, the original 1895 plat shows that lots 29 and 30 were originally located on the north banks of the Arkansas River. According to plaintiff's plat at the present time, the Arkansas River flows considerably to the south of its 1895 location; and in fact Tract A is merely that portion of land lying between the present course of the Arkansas River and the 1895 bed of that river. According to plaintiff, therefore, she is entitled to this tract by accretion and the trial court should have permitted her to claim by this doctrine.
According to the trial court's findings, which were based upon sufficient evidence and are therefore binding upon appeal, Ruston, supra, the Arkansas River moved from its old location to its new one as result of the great flood in 1921. To gain by accretion, it is necessary to show a slow imperceptible shifting of the river's course over a long period of time, Smith, supra. A sudden violent shift or avulsion, as the court found occurred here, does not shift the boundaries of the lot to conform to the new banks of the river. Rather the lots remain the same, that is, bounded upon the old bank of the river not the new. Thomson v. Clarks, Inc., 162 Colo. 506, 427 P.2d 314. Since the facts fail to disclose the possibility of gain by accretion, there was no error in refusing to permit plaintiff to amend her complaint.
Judgment affirmed.
DWYER and PIERCE, JJ., concur.