California
(1) Title to property by adverse possession may be established either under color of title or by claim of right. (Code Civ. Proc., §§ 322-325.) When, as in the instant case, title is asserted by claim of right, Code of Civil Procedure section 324 provides: “Where it appears that there has been an actual continued occupation of land, under a claim of title, exclusive of any other right, but not founded upon a written instrument, judgment or decree, the land so actually occupied, and no other, is deemed to have been held adversely.”
Section 325 of that code requires that to obtain title by adverse possession the land must be occupied and claimed for five years continuously and that claimants or their predecessors must have paid all taxes levied and assessed against the land.
The elements necessary to establish title by adverse possession are tax payment and open and notorious use or possession that is continuous and uninterrupted, hostile to the true owner and under a claim of title. (Taormino v. Denny (1970) 1 Cal.3d 679, 686 [83 Cal. Rptr. 359, 463 P.2d 1]; Sorensen v. Costa (1948) 32 Cal.2d 453, 458 et seq. [196 P.2d 900]; West v. Evans (1946) 29 Cal.2d 414, 417 [175 P.2d 219]; Kunza v. Gaskell (1979) 91 Cal. App.3d 201, 210-211 [154 Cal. Rptr. 101]; Berry v. Sbragia (1978) 76 Cal. App.3d 876, 879-880 [143 Cal. Rptr. 318].)
322*322 (2) A prescriptive easement requires establishment of the same elements except that payment of taxes is required only if the easement has been separately assessed. (Civ. Code, § 1007; Taormino v. Denny, supra, 1 Cal.3d. 679, 686.)
(3a) Although there is some conflict in cases from other jurisdictions, the rule is settled in California that the requisite hostile possession and claim of right may be established when the occupancy or use occurred through mistake. In Woodward v. Faris (1895) 109 Cal. 12, 17 [41 P. 781], the court pointed out that most cases of adverse possession commenced in mistake and that the possession must be by mistake or deliberately wrong. To limit the doctrine of adverse possession to the latter possession places a premium on intentional wrongdoing contrary to fundamental justice and policy. Numerous cases have since recognized that title by adverse possession may be acquired though the property was occupied by mistake. (E.g., Sorensen v. Costa, supra, 32 Cal.2d 453, 459-461; Park v. Powers (1935) 2 Cal.2d 590, 596 [42 P.2d 75]; Kunza v. Gaskell, supra, 91 Cal. App.3d 201, 210-211; Lobro v. Watson (1974) 42 Cal. App.3d 180, 187 [116 Cal. Rptr. 533]; Newman v. Cornelius (1970) 3 Cal. App.3d 279, 289 [83 Cal. Rptr. 435]; Winchell v. Lambert (1956) 146 Cal. App.2d 575, 581-582 [304 P.2d 149]; see 3 Witkin, Summary of Cal. Law (8th ed. 1973) p. 1819.)
Woodward v. Faris, supra, 109 Cal. 12, 17, also recognized an exception to the mistake rule where the possessor does not claim that his fences mark the true line but intends to move them to the true line when it is discovered. It was pointed out that in such cases the possessor is not claiming adversely. The exception was applied to deny a claim of adverse possession in Holzer v. Read (1932) 216 Cal. 119, 123 [13 P.2d 647], where the occupation of the land was by mistake “with no intention on the part of the occupant to claim as his own, land which does not belong to him, but with the intention to claim only to the true line wherever it may be.”
The relationship between the mistake rule and the exception was addressed in Sorensen v. Costa (1948) 32 Cal.2d 453, 459-461 [196 P.2d 900]. Discussing Woodward and Holzer the court pointed out that the hostility requirement “means, not that the parties must have a dispute as to the title during the period of possession, but that the claimant’s possession must be adverse to the record owner, `unaccompanied by any recognition, express or inferable from the circumstances of the right in 323*323 the latter.'” (32 Cal.2d at p. 459.) After recognizing the Holzer decision, the court reaffirmed the rule that title by adverse possession may be acquired when the possession or use commenced under mistake and upheld trial court determination that the land occupied on the basis of mistake was held adversely.[3]
Because under Sorensen adverse possession may be established by evidence that possession was based on mistake, it is apparent that rejection of the mistaken possession may not be based on speculation that the possessor might not have occupied the land had he known of the record title. Rather to show that the possession based on mistake was not hostile and adverse it must be established by substantial evidence that the possessor recognized the potential claim of the record owner and 324*324 expressly or impliedly reflected intent not to claim the occupied land if record title was in another. To hold that the occupier’s belief of ownership of the disputed land showed without more an intent not to claim nonowned land would emasculate the mistake rule.
Colorado
One claiming title by adverse possession must prove that his possession of the disputed parcel was actual, adverse, hostile, under claim of right, exclusive and uninterrupted for the statutory period. Raftopoulos v. Monger, 656 P.2d 1308, 1311 (Colo. 1983); Dzuris v. Kucharik, 164 Colo. 278, 282, 434 P.2d 414, 416 (1967). In Colorado, the statutory period is eighteen years. § 38-41-101(1), 16A C.R.S. (1982).[8] A claimant must establish the elements of adverse possession by a preponderance of the evidence. Gerner v. Sullivan, 768 P.2d 701, 705-706 (Colo.1989); see § 13-25-127(1), 6A C.R.S. (1987) (burden of proof in any civil action shall be by a preponderance of the evidence).
A presumption that the possession is adverse arises after the claimant has demonstrated that he has been in actual and exclusive possession of the property for the statutory period. Raftopoulos, 656 P.2d at 1312. In order to merit this presumption, the claimant’s use must be “sufficiently open and obvious to apprise the true owner, in the exercise of reasonable diligence, of an intention to claim adversely.” Hodge v. Terrill, 123 Colo. 196, 205, 228 P.2d 984, 988 (1951) (citing Vade v. Sickler, 118 Colo. 236, 239-40, 195 P.2d 390, 391 (1948)). In other words, the claimant’s “proof of adverse possession must extend beyond mere actual possession and establish that the record owner has been effectively excluded, and further, that the possession relied upon is not joint.” Raftopoulos, 656 P.2d at 1312. However, a mere casual entry for a limited purpose by the record owner is not necessarily sufficient to prove that the use of the property was joint. See id.; Bushey v. Seven Lakes Reservoir Co., 37 Colo.App. 106, 109, 545 P.2d 158, 161 (1975) (entry by record owner does not destroy adverse possession when such entry is for specific and limited purpose and is consistent with the type of possession asserted by adverse claimant); cf. McKelvy v. Cooper, 165 Colo. 102, 105, 437 P.2d 346, 347 (1968) (mere casual intrusion by several anglers does not deprive adverse claimant of exclusive character of his possession).
When the boundaries of the land claimed by adverse possession are not established by fences or other barriers, and when there is no deed describing the extent of the land claimed, the adverse claimant may not claim any property not actually occupied for the statutory period. Anderson v. Cold Spring Tungsten, Inc., 170 Colo. 7, 14, 458 P.2d 756, 759 (1969). The extent of actual occupancy is a question of fact for the trial court to determine. In arriving at this determination, the court should consider that adverse possession by actual occupancy without a fence or other barrier does not require constant, visible occupancy or physical improvements on every square foot of the parcel claimed.
Actual occupancy means the ordinary use to which the land is capable and such as an owner would make of it. Any actual visible means, which gives notice of exclusion from the property to the true owner or to the public and of the defendant’s dominion over it, is sufficient.
Id. at 14-15, 458 P.2d at 759 (quoting Burkhardt v. Smith, 17 Wis.2d 132, 115 N.W.2d 540, 543-44 (1962)).
53*53 Lastly, whether the claimant’s possession is hostile and adverse is a question of fact to be determined “by reasonable deductions from the acts as well as declarations of the parties involved.” Moss v. O’Brien, 165 Colo. 93, 96, 437 P.2d 348, 349 (1968) (quoting Vade v. Sickler, 118 Colo. 236, 240, 195 P.2d 390, 392 (1948)); accord Anderson v. Cold Spring Tungsten, Inc., 170 Colo. 7, 11, 458 P.2d 756, 758 (1969).