There’s an old saying — good fences make good neighbors. However, this is not always true. Take, for example, the case of Cronk v. Bowers, decided by the Colorado Court of Appeals in July.
The facts go like this. Going back to at least 1975, a mile-long fence existed separating rural properties in Washington County in northeast Colorado, owned by Kenneth Cronk and neighbor Ralph Behr. The fence should have been constructed on a section line.
But it was instead constructed 30 feet west of the section line, creating a 30-foot strip of land (the “disputed parcel”) on Cronk’s side of the fence. Cronk and the Behr family (Behr died in 1998) worked around this problem up until 2011, with Cronk using the disputed parcel to grow crops and returning straying cattle belonging to the Behr family back to his side of the fence.
In 2011, however, Behr Family sold the property to Douglas and Jason Bowers, who then claimed ownership of the disputed parcel.
Further in that regard, in 2017, over Cronk’s objection, the Bowerses relocated half the fence to the section line. And, in 2019, they relocated the other half of the fence to the section line, killed Cronk’s wheat crop growing in the disputed parcel, and began using the disputed parcel for their own crops.
Cronk sued the Bowerses, asking the Washington County District Court to rule that Cronk owned the disputed parcel under a rarely used legal doctrine known as “boundary by acquiescence.” This doctrine is recognized in a Colorado statute going back many years, which says that boundaries alleged to have been “recognized and acquiesced in” for at least 20 years “shall be permanently established.”
Cronk also asserted claims against the Bowerses for unlawful possession of the disputed property, civil theft and trespass, and he asked the District Court to enter an injunction prohibiting the two from entry onto the disputed property. Cronk additionally asked for an award of his attorney fees and costs, totaling $94,793.85.
At the District Court, Cronk prevailed on his claims. However, the Bowerses appealed. The Court of Appeals upheld the District Court’s ruling that Cronk owned the disputed property under the doctrine of boundary by acquiescence but concluded the District Court’s orders granting an injunction and awarding attorney fees to Cronk were lacking in sufficient findings of fact and legal analysis. So, the case was sent back to the District Court to sort out those issues (and where the parties can spend even more on attorney fees and costs).
In his lawsuit, Cronk also claimed ownership of the disputed property under the law of adverse possession. The District Court agreed with that claim but the Court of Appeals ducked the issue, concluding that the boundary by acquiescence doctrine had resolved the matter of Cronk’s ownership of the disputed property and there was no need to muddy the waters further with an analysis of what the law of adverse possession might say in this circumstance where Behr had seemingly not considered Cronk’s use of the disputed property as adverse.
As a side note on the “good fences make good neighbors” proverb, this statement appears twice in a 1914 poem by Robert Frost called “Mending Wall.” Frost, it seems, had a problem with a neighbor arising out of the ever-changing location of a property boundary caused by acts of nature and trespassing hunters. In the poem, Frost speculates on the need for fences.
Jim Flynn is a business columnist. He is with the Colorado Springs firm Flynn & Wright. He can be contacted at moneylaw@jtflynn.com.