“Utilizing the abandoned rail bed of the Great Western Railroad [GWR], the trail will preserve this historic right-of-way through the “rail banking” provisions of the federal Rails to Trails legislation.” – Great Western Trail Authority. This case questions whether a landowner whose property abuts the GWR is presumed to own property to the centerline of the rail bed. If so, creating the right-of-way could be a 5th Amendment taking. The Court held that the centerline presumption applies to railroad rights-of-way in Colorado and that it is a common law rule of conveyance, not a rule of evidence. But, the presumption applies only if a property owner can trace title to a grantor who owned the land underlying the right-of-way. The burden of proving title to land is on the person alleging ownership. Thus, owning adjacent land is not sufficient alone to apply to the centerline presumption.
Tag Archives: Title
Rodney Asmussen and Linda Asmussen, For Themselves and As Representatives of a Class of Similarly Situated Persons v. United States, 2013CO54 (July 1, 2013)
Fidelity National Title Company, f/k/a Security Title Guaranty Company v. First American Title Insurance Company, 2013COA80 (May 23, 2013)
It was a $1million mistake. A title company (Agent) closed 2 loans, for 2 different banks, 2 months apart, assuring both banks that they were first position lienholders for the same property. The Agent’s underwriter eventually paid over $1 million to resolve the banks’ competing claims over foreclosure proceeds. Underwriter sued Agent, and won. Agent appealed, challenging the interpretation of their contract and the applicability of a statutory defense for reliance on a payoff statement. The court of appeals held: 1) Agent was an “escrow” because it “handled” money during the closings, 2) Agent couldn’t rely on a “payoff statement” under CRS 38-35-124.5, as it didn’t indicate the amounts owed to the actual creditor or holder of the debt, and 3) the contractual phrase “actual prejudice” meant “substantial detriment to the significant interests of the party.” Affirmed.
“Fool me once, shame on you, fool me twice shame on me.” In this case, a title insurance company (Title) took this advice to heart. Fearing an alleged money-laundering fraudster (Kornegay) would hide or transfer his assets once served with a complaint, Title obtained a prejudgment attachment of assets. Kornegay allegedly caused Title to pay its insured. The court of appeals rejected numerous objections raised by Kornegay challenging compliance with CRCP 102 (which authorizes prejudgment writs of attachment): 1) although Title was not domiciled or a citizen of Colorado, it was a “resident” for purposes of CRCP 102; 2) the trial court could set bond at $0; 3) a private server may serve notice of levy and execute writs; 3) a traverse cannot be a denial on information and belief; and 4) a vague statement of intent to occupy a home in the future does not support a homestead exemption claim.