2014 COA 136
Colo. Ct. App.2014Background
- Serenity Springs Wildlife Center (refuge) houses ~140 exotic animals on a 10-acre parcel; defendants operate it through Big Cats of Serenity Springs, Inc. and Jules Investment, Inc.
- A 2012 survey showed that 1.7 acres of plaintiffs James and Nichole Graham’s 36.5-acre parcel (purchased 2010) was enclosed by the refuge’s fence and contained pens and concrete dens with 16-inch-wide, 2–4-foot deep footings holding tigers and lions and their enclosures.
- Plaintiffs sued for trespass and nuisance; the trial court found a trespass to 1.7 acres (by animals and keepers) and held a remedy hearing after mixed summary-judgment rulings.
- Defendants argued removal and relocation of structures would impose severe hardship: structures are embedded in deep concrete, relocation costs (~$38,400) plus rebuilding to meet federal fencing requirements (~$210,000) were high, refuge operated at a net loss, and animals could not easily be relocated (possible euthanasia of endangered species).
- Plaintiffs sought removal and restoration and were concerned a sale would reduce their parcel below El Paso County’s 35-acre agricultural minimum; county said administrative relief (waiver) was available for a fee.
- Trial court ordered plaintiffs to convey the 1.7 acres to defendants for $5,780; defendants to pay sale costs and $1,737 to cover the county waiver application fee. Plaintiffs appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the structures themselves or the animals/keepers constituted a continuing trespass requiring mandatory removal | Structures/continued use are a continuing trespass; court must order removal via mandatory injunction | Structures were not independently a trespass; remedies can vary and equity permits consideration of circumstances | Court found a trespass but rejected a per se rule that structures must be removed; remedies are discretionary and fact-specific |
| Whether the court could consider defendants’ removal costs and hardships when choosing remedy | Court may not weigh removal cost to deny injunctive removal for a continuing trespass | Court should weigh relative hardships, good faith, and feasibility before ordering removal | Court properly considered hardships and good faith in balancing remedies |
| Whether forced sale (judicially ordered conveyance) of the 1.7 acres to defendants was an available/appropriate remedy | Forced sale is improper; plaintiffs’ property rights cannot be taken for private benefit | Forced sale is an extraordinary but permissible equitable remedy when hardships are disproportionate and encroachment was in good faith | Court did not abuse discretion in ordering forced sale under the unique facts; affirmed |
| Whether the forced sale constituted an unconstitutional taking for private use | (Not argued below; preserved?) Plaintiffs raised takings on appeal | Defendants: remedy is equitable, not a state taking | Court declined to reach takings claim because it was not raised below |
Key Cases Cited
- Golden Press, Inc. v. Rylonds, 235 P.2d 592 (Colo. 1951) (equity may require removal when encroacher intended to take land; when encroachment is in good faith, courts must weigh relative hardships)
- McDowell v. United States, 870 P.2d 656 (Colo. App. 1994) (encroachment remedies depend on peculiar circumstances; removal vs. damages inquiry)
- Hunter v. Mansell, 240 P.3d 469 (Colo. App. 2010) (appellate deference to trial courts in tailoring equitable relief)
- Szymcsak v. LaFerrara, 655 A.2d 76 (N.J. Super. Ct. App. Div. 1995) (reversed removal of large encroaching house; ordered sale where plaintiff’s lot was rendered unbuildable and defendant acted in good faith)
- Arnold v. Melani, 449 P.2d 800 (Wash. 1969) (withholding injunctive removal when encroachment innocent, harm to landowner slight, and hardship to encroacher disproportionate)
- Soma v. Zurawski, 772 N.W.2d 724 (Wis. Ct. App. 2009) (upheld forced sale where relocation costs far exceeded encroached land value and encroached land had little value to owner)
- Hirshfield v. Schwartz, 91 Cal. App. 4th 749 (Cal. Ct. App. 2001) (applied relative-hardship test to deny removal when encroachment innocent and injunction would impose disproportionate hardship)
- Amkco, Ltd. Co. v. Welborn, 21 P.3d 24 (N.M. 2001) (applied relative-hardship balancing in encroachment disputes)
- Somerville v. Jacobs, 170 S.E.2d 805 (W. Va. 1969) (good-faith improver may recover value of improvements or purchase land; lien or sale remedies available)