F I LED

United States Court of Appeals

Tenth Circuit

August 2, 2006

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

COLIN CHAPMAN,

Plaintiff/CounterclaimDefendant/Appellant,

v.

ASHEL A. DENMAN; GEORGE

MCCULLOUGH; M. S.

MCCULLOUGH, and any and all

unknown persons who claim any

interest in the subject matter of this

action,

Defendants/CrossclaimDefendants,

and 

UNITED STATES OF AMERICA,

Defendant/Crossclaim-Plaintiff/

Counterclaim-Plaintiff/

Appellee,

and

SECRETARY OF AGRICULTURE;

UNITED STATES FOREST

SERVICE,

Defendants-Appellees.

No. 04-1331

(D.C. No. 00-MW-2358-(OES))

(D. Colo.)
After examining the briefs and appellate record, this panel has determined *

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument. This order and judgment is not binding

precedent, except under the doctrines of law of the case, res judicata, and

collateral estoppel. The court generally disfavors the citation of orders and

judgments; nevertheless, an order and judgment may be cited under the terms and

conditions of 10th Cir. R. 36.3. 

The parties consented to the exercise of jurisdiction by a magistrate judge. 1

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ORDER AND JUDGMENT

*

Before BRISCOE, McKAY, and BRORBY, Circuit Judges.

Plaintiff and counterclaim defendant, Colin Chapman, appeals from an

order of a United Magistrate Judge granting summary judgment in favor of 1

defendants the United States of America, the Secretary of Agriculture, and the

United States Forest Service on his claims for record title and adverse possession,

and in favor of the United States on its counterclaim for record title. We affirm. 

Background

The property at issue in this case is an approximate ten-acre patented

mining claim known as the Puzzler Lode Mining Claim (Puzzler). It is located in

the Maroon Bells-Snowmass Wilderness Area of the White River National Forest,

about ten miles south of Aspen, in Pitkin County, Colorado.
Pitkin County continued to own the Puzzler until 1994 when it was 2

conveyed to the United States. From 1954 through 1994, no property taxes were

assessed because county-owned property is tax exempt. Colo. Rev. Stat.

§ 39-3-105. 

A “wild deed” is defined as “[a] recorded deed that is not in the chain of 3

title . . . .” Black’s Law Dictionary 446 (8th ed. 2004).

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The undisputed, material facts concerning the Puzzler began more than one

hundred years ago with a location certificate recorded in 1881, and the issuance

of a patent in 1893. When the owners failed to pay the property taxes, the Pitkin

County Treasurer offered the Puzzler at a tax sale on December 16, 1901. 

Because there were no bidders, the Puzzler was struck off to Pitkin County

through a treasurer’s certificate of purchase.

In May 1954, the Pitkin County Treasurer issued a Notice of Purchase of

Real Estate at Tax Sale and of Application for Issuance of Treasurer’s Deed for

the Puzzler. A treasurer’s deed for the Puzzler was issued to the Pitkin County

Board of County Commissioners (BOCC), and recorded on June 16, 1954.2

In July 1976, Pitkin County passed and recorded a resolution concerning

numerous mining claims that it had obtained by treasurer’s deeds, including the

Puzzler. The resolution recognized that the claims were located within the White

River National Forest and stated that they were “useful and necessary for present

public open space and parks and recreation.” Aplt. App. at 288. And in July

1988, based on numerous “wild deeds” being filed on county-owned mining 3
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claims, the County recorded a Public Notice in the records asserting its ownership

of numerous properties, including the Puzzler. 

Plaintiff’s chain of title began in July 1979, when a “wild deed” was

recorded purporting to convey the Puzzler and several other mining claims from

The Denver & Colorado Investment Company to the Aspen-Western Corporation. 

Shortly after recording the “wild deed,” the Aspen-Western Corporation purported

to convey the Puzzler to Stefan, Margaret and Everett Albouy (Albouys), who

recorded the deed in October 1979. On July 14, 1991, the Albouys conveyed the

Puzzler by quit claim deed to plaintiff, who paid nothing for it and who agreed to

hold the Puzzler for the Albouys. Five days after receiving the quit claim deed

from the Albouys, plaintiff filed a quiet title lawsuit in Pitkin County District

Court concerning the Puzzler, and named the BOCC as a defendant. 

In May 1994, Congress enacted the Exchange Act, Public Law No.

103-255, 108 Stat. 684 (1994), pursuant to which Pitkin County agreed to

exchange certain lands, including the Puzzler, for a 230-acre parcel owned by the

United States. As part of the exchange, the County conveyed the Puzzler to the

United States by a quit claim deed, which was recorded on August 17, 1994. The

Puzzler then became part of the White River National Forest. In December 1994,

plaintiff and the BOCC filed a stipulated motion to dismiss the state court quiet

title action without prejudice. Plaintiff filed his federal court quiet title action

against the United States in November 2000.
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In October 2002, the Pitkin County Treasurer issued a correction deed to

correct the 1954 treasurer’s deed, which failed to reflect the date the 1901 tax sale

was commenced, and which also failed to contain a recital explaining why the tax

sale was held late. Specifically, historical records were uncovered that

established the date of sale as December 16, 1901, and the corrected deed stated

that the sale commenced late because of “[l]ack of office help and time for the

preparation and publication of the notice in the newspaper.” Aplt. App. at 228. 

To cure any cloud on the title, the County executed another quit claim deed to the

United States on January 22, 2003.

Standard of Review 

The Quiet Title Act permits lawsuits against the federal government “to

adjudicate a disputed title to real property in which the United States claims an

interest . . .” 28 U.S.C. § 2409a(a). Although the parties’ respective claims arise

under a federal statute, questions involving real property rights are determined by

state law unless federal law requires a different result. Oregon ex rel. State Land

Board v. Corvallis Sand & Gravel Co., 429 U.S. 363, 378-81 (1977); United

States v. O’Block, 788 F.2d 1433, 1435 (10th Cir. 1986); Amoco Prod. Co. v.

United States, 619 F.2d 1383, 1389 n. 4 (10th Cir. 1980). 

We review the district court’s grant of summary judgment de novo, viewing

the evidence and drawing the reasonable inferences therefrom in the light most

favorable to the nonmoving party. Gossett v. Okla. ex rel. Bd. of Regents for
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Langston Univ., 245 F.3d 1172, 1175 (10th Cir. 2001). Summary judgment is

appropriate if there are no genuine issues of material fact and the moving party is

entitled to judgment as a matter of law. Id. at 1175. When applying Colorado 

law, the district court should ascertain and apply the state law to reach the result

the Colorado Supreme Court would reach if faced with the same question. 

Cooperman v. David, 214 F.3d 1162, 1164 (10th Cir. 2000). We also review the

district court’s application of state law de novo. Id.

Record Title

Under Colorado law, “a plaintiff in a quiet title action . . . bears the burden

of establishing title in the property superior to that of the defendant . . . [and] the

plaintiff must rely on the strength of his own title rather than on the weakness in

or lack of title in [the] defendant[].” Hutson Agric. Ditch & Reservoir Co.,

723 P.2d 736, 738 (Colo. 1986) (internal quotation omitted). 

Plaintiff argues that the district court erred when it determined that the

1954 tax deed should be reformed to reflect the date of the sale as December 16,

1901, and that the reason for the untimely sale was the lack of sufficient

personnel. His theory is that the treasurer’s deed is void and that his chain of

title, which begans with a “wild deed” in 1979, is superior to that of the United

States. We disagree. In nearly identical factual circumstances, the Colorado

Supreme Court held that extrinsic evidence may be used to reform technical

defects in a treasurer’s deed, and the reformed deed relates back to the original
Plaintiff argues alternatively that the prohibition does not apply until the 4

United States obtains good title to the property. This is contrary to our prior

cases interpreting the Quiet Title Act and the requirement that the United States

need only claim an interest in the property to trigger the Act’s limitation

provision. Knapp v. United States, 636 F.2d 279, 282 (10th Cir. 1980); Stubbs v.

United States, 620 F.2d 775, 781 (10th Cir. 1980). 

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deed. Board of County Comm’rs v. Timroth, 87 P.3d 102, 108-09 (Colo. 2004). 

The evidence submitted by the United States in support of reformation was never

disputed by plaintiff. As such, the district court properly entered an order

reforming the deed. 

Here, the undisputed material facts establish that the United States, which

can trace its chain of title back to the location certificate recorded in 1881, has

superior record title to the Puzzler over plaintiff, whose chain of title begins in

1979 with the recording of a “wild deed.” 

Adverse Possession

Although the Quiet Title Act permits lawsuits against the federal

government to adjudicate disputed title to real property in which the United States

claims an interest, it contains the prohibition that “[n]othing in this section shall

be construed to permit suits against the United States based upon adverse

possession.” 28 U.S.C. § 2409a(n). Plaintiff argues that the prohibition does not

apply if he or his predecessors in interest, the Albouys, acquired title to the

Puzzler by adverse possession before the United States first claimed an interest4

in the property in 1994. The district court disagreed, and held that the clear and
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unambiguous language of the statute barred his claim for adverse possession,

regardless of when the claim may have accrued. 

Assuming for argument that a plaintiff may base a quiet title claim on a

claim of adverse possession that has ripened into title prior to the United States

claiming an interest in the property, there are no facts to support such a claim in

this case. Admittedly, the district court did not reach this conclusion in its

decision because it found that plaintiff’s adverse possession claims were barred. 

Nonetheless, we may “affirm a grant of summary judgment on grounds other than

those relied on by the district court when the record contains an adequate and

independent basis for that result.” Terra Venture, Inc. v. JDN Real EstateOverland Park, L.P., 443 F.3d 1240, 1243 (10th Cir. 2006) (quotation marks and

citation omitted). 

Colo. Rev. Stat. § 38-41-101(1) provides for adverse possession where a

plaintiff and/or his predecessors in interest have been in possession of property

for more than eighteen years. The possession must be: (1) actual; (2) adverse;

(3)hostile; (4) under claim of right; (5) exclusive; and (6) uninterrupted. See

generally Salazar v. Terry, 911 P.2d 1086, 1089, n. 4 (Colo. 1996). 

Plaintiff claims that his adverse possession of the Puzzler began in 1979,

when the Albouys recorded their deed. Setting aside the fact that plaintiff has

failed to prove adverse possession under Colorado law, by his own admission the
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alleged adverse possession could not have ripened into title until 1997, which is

three years after the United States first claimed an interest in the Puzzler. 

Further, to avoid the consequences of Colo. Rev. Stat. § 38-41-101(2),

which provides that a party cannot adversely possess against a county, plaintiff

argues that Pitkin County never owned the Puzzler until 2004 when the district

court entered its order reforming the treasurer’s deed. To the contrary, the

reformed deed was retroactive to 1954, and from that point forward the Puzzler 

was owned by the County, against whom no claim for adverse possession lies. 

Timroth, 87 P.3d at 108-09. 

Likewise, plaintiff’s claim of title to the Puzzler pursuant to Colorado’s

seven-year adverse possession statute also fails. Colo. Rev. Stat. §38-41-109

requires, among other things, the payment of all taxes legally assessed for seven

successive years, under color of title made in good faith. Our consideration of

this claim is resolved by the fact that there is nothing in the record that plaintiff

ever paid any taxes on the Puzzler.

Conclusion 

Based on the foregoing undisputed material facts, the district court

correctly found that the United States was entitled to summary judgment on

plaintiff’s claims for record title and adverse possession. The court also correctly 
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entered summary judgment in favor of the United States on its counterclaim for

record title to the Puzzler. The judgment of the district court is AFFIRMED. 

Entered for the Court

Wade Brorby

Circuit Judge