The Everlasting Phelps

For, brethren, ye have been called unto liberty; only use not liberty for an occasion to the flesh, but by love serve one another.

Adverse Possession Travesty in Colorado

November 21st, 2007

There has been a case that smacks of corruption in Denver. I work in commercial litigation. I am not a lawyer, but I work on the trial team, and I have done a couple of adverse possession claims, one where we were asserting it (we settled) and one where we were fighting it (we won.) As a layperson, I see lots of problems with this case. (I’m looking at this from a Texas perspective, but if there is something in Colorado law that allows these to be gotten around, then there is a major problem with Colorado law.)

First, Adverse Possession requires adverse possession. You can’t hide it. The owner has to know or should have known that you were using the land. It looks like that question came down to a he-said she-said in court. I would assume that the person claiming adverse possession has the burden of proof, and he-said she-said doesn’t carry that burden. I don’t see how they can reasonably say that they were using the land for 18 years and the owner next door who was actually maintaining the land didn’t know.

Second, it requires possession. It doesn’t mean that you can take a yearly jaunt onto the land 18 times and then its yours. It doesn’t mean that you can hold a couple of fundraisers on it and its yours. Your use has to be continuous, uninterrupted, and without permission. This had to be a question of fact for a jury, since there are photographs that the respondants provided that the petitioners don’t seem to have contradicting evidence for.

In reality, there are generally two ways that adverse possession happens in America. You either have a surveying or construction error, or you have a necessary easement. Most of the time what happens is that either because the surveyor or the fencemaker screwed up, and fence ends up in the wrong place. Someone else buys the land 30 years later, has it surveyed, and then wants to move the fence where it originally was supposed to be. He gets stopped, because the land now belongs to the adverse possessor.

Judging from the video, they are trying the other general method. They are claiming that they need an easement. The problems I see with that is that they are claiming a lot of land for a simple easement, and it appears from the video that they never actually used the easement until they thought it was going to be developed. I think that this was, given the scintilla of evidence that the aerial photographs show, a fact issue for a jury, and I’m not sure how the judge was able to decide that himself. That leads me to believe that there was some hometeaming going on, and I am dismayed that the state ethics board refused to examine the issue (at least until the appeal goes through.) If it turns out that the attorney and retired judge abused their position to try to steal this land unlawfully, then they should both be disbarred, along with the judge who complied.

Could I have an ebook reader that doesn’t suck?

November 20th, 2007

This is going to be a total bomb. And I’ll tell you why. Lots of people are calling it the next iPod, and I am going to focus on why it won’t be.

  • It’s ugly. Really ugly. Like, generic computer from “We Got Us Some Computers, Ltd.” in 1986 ugly. The iPod was not ugly.
  • It’s complicated. Why does an ebook reader need a keyboard? Seriously? Do you guys think you can charge by the button? “You can search books!” I can search books now without a keyboard. It is called an index. Put an Index button on it, and let me thumb through the index. I have no problem searching on my TiVo without a QWERTY keyboard. It isn’t like I do it all day long. Most days.  A D-pad in the middle and a button on each side would have been fine.
  • Nobody cool is selling it.  The iPod had Steve F-in Jobs selling it.  Jeff Bezos may be a big shot in the business world, but he’s not a tech rock star.  He runs a bookstore.  Not only that, but the iPod had its users to sell it.  Cool people were spotted all over wearing white earbuds while they went around being cool.  Where are you going to see this being used?  Some guy waiting on a bus?  And who is it going to be?  Some nerd reading a book.  An electronic book.  That’s a no sale.
  • It nickels and dimes you.  Literally.  I get taxed a dime to email myself?  Seriously?  Buying a song for $.99 is one thing.  I can get the buying books from the Kindle Store.  But this is like if Apple wanted to charge you a dime to get the cover art with the song.  Amazon isn’t selling me anything when I email my own stuff to me.  They are just skimming a tax off the top.
  • They want me to move in with them, not move in together.  If they decide that you violated their terms (and they have a lot of them) then they want to kick you out of the Kindle Club.  Oh, and steal all the books you bought from them, too.  See, it turns out that you are just renting the books.  Until they think that you might have cheated on them, and then they are kicking you out of their house.  Or until the whole thing goes belly up, and they stop letting you have the books you already rented, like what happened with the DRM wrapped MLB videos people bought.  Oh, and in the automatic updates part, they have decided that they are going to load whatever software they want on it over the cellular network, whether you OK it or not.

So that’s it in a nutshell.  It’s ugly, complicated, uncool, it comes with its own tax, and it might stop working whenever Amazon gets tired of supporting it.  I won’t be rushing out to buy one.

The Everlasting Phelps

For, brethren, ye have been called unto liberty; only use not liberty for an occasion to the flesh, but by love serve one another.