The Fence is the Line (Adverse Possession)
Scott W. Dunn
It is not uncommon for land-owners to discover that an historic line of possession (i.e. a fence) runs along a line which may vary from the original surveyed boundary between adjoining properties. When such a problem is discovered, owners on both sides of the line may want to know whether the legally enforceable boundary line is the fence line or the surveyed line. The neighbors may discover that one has lost land and the other has gained land by virtue of the law of adverse possession, and therefore the boundary line has moved from the original surveyed line to the fence line. To establish adverse possession, as a general rule, and thus gain land that is outside the surveyed area of his property, the one claiming adverse possession must show that he, or those who owned his property before him, exclusively possessed the claimed property by using it continuously in a way that an owner would use it. This use must be open, such that it would be clear to the neighbor that ownership is being claimed. Once such exclusive, open, possession has continued for a period of eighteen years in Colorado, the one claiming possession becomes the legal owner of the land regardless of where the original surveyed boundary may have been.
While adverse possession conjures up images of someone trying to steal his neighbor’s land, in practice it is usually much more benign. In a common fence line example, those putting up a fence many years ago may have innocently placed the fence some number of feet away from the surveyed line. As years go by the fence may become the boundary line under the law of adverse possession. The adverse possessor, whether he realizes it or not, is likely exclusively possessing his neighbor’s property up to the fence line, and is openly using it as an owner would. Once eighteen years has passed, it is usually too late for the neighbor, who may have lost a portion of property, to move the fence by claiming it was put in the wrong place. The fence line has likely become the legal boundary between the properties.
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