                                                            F I L E D
                                                      United States Court of Appeals
                                                              Tenth Circuit
                  UNITED STATES CO URT O F APPEALS
                                                            August 2, 2006
                        FO R TH E TENTH CIRCUIT           Elisabeth A. Shumaker
                                                              Clerk of Court

JAM ES A . W INGERS,

      Plaintiff/Counterclaim-
      Defendant/Appellant,
                                                 No. 04-1329
v.                                      (D.C. No. 00-M W -2404-(OES))
                                                  (D . Colo.)
JEN N IE M . SWE ET; LO U D .
SW E ET, and any and all unknown
persons who claim any interest in the
subject matter of this action,

      Defendants/
      Crossclaim-Defendants,

and

U N ITED STA TES O F A M ER ICA,

      Defendant/Crossclaim-Plaintiff/
      Counterclaim-Plaintiff/
      Appellee,

and

SECRETARY OF AGR ICU LTURE;
UNITED STA TES FO REST
SERVICE,

      Defendants-Appellees.
                           OR D ER AND JUDGM ENT *


Before BR ISC OE, M cKA Y, and BROR BY, Circuit Judges.


      Plaintiff and counterclaim defendant, James A. W ingers, appeals from an

order of a United M agistrate Judge 1 granting summary judgment in favor of

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. W e affirm.

                                    Background

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

mining claim known as the Snowflake Lode M ining Claim (Snowflake). It is

located in the W hite River National Forest, about two miles south of Aspen, in

Pitkin County, Colorado.




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
1
      The parties consented to the exercise of jurisdiction by a magistrate judge.

                                         -2-
      The undisputed, material facts concerning the Snowflake began more than

one hundred years ago with the recording of a location certificate in 1881, and the

issuance of a patent in 1887. By 1889, M .J. Orr had acquired the Snowflake by

several mesne conveyances; however in 1892, it was acquired by Jennie M . Sw eet

via a treasurer’s deed. Property taxes were last paid on the Snowflake in 1911 by

Lou D. Sweet, and on December 21, 1912, the Snowflake was offered at a tax sale

by the Pitkin County Treasurer. There were no bidders at the tax sale, and the

Snow flake was struck off to Pitkin County through a treasurer’s certificate of

purchase.

      In February 1949, the Pitkin County Treasurer issued a N otice of Purchase

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

the Snowflake, a copy of which was sent to W alden Sweet by registered mail.

M r. Sw eet signed for the notice on M arch 3, 1949. W hen there was no response,

a treasurer’s deed issued to the Pitkin County Board of County Commissioners,

which was recorded on April 18, 1949. 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

Snow flake. The resolution recognized that the claims were located within the

2
      Pitkin County continued to own the Snowflake until 1994 when it was
conveyed to the United States, although it leased the mineral rights to a company
pursuant to a lease that expired in 1994. Nonetheless, from 1949 through 1994,
no property taxes were assessed because county-owned property is tax exempt.
Colo. Rev. Stat. § 39-3-105.

                                          -3-
W hite River National Forest and stated that they were “useful and necessary for

present public open space and parks and recreation.” Aplt. App., Vol. IV at

326-27. And in July 1988, based on numerous “wild deeds” 3 being filed on

county-owned mining claims, the County recorded a Public N otice in the county

records asserting its ownership of numerous properties, including the Snowflake.

To further demonstrate its ownership, the County hired personnel to locate and

inspect various claims, including the Snowflake, and had the property posted with

signs: “Pitkin County Public Park And Open Space W elcome Please Pack Your

Trash.” Aplt. App., Vol. V at 419.

      Plaintiff’s chains of title began with two “wild deeds” recorded in 1975 and

1979, and conveyed to him in 1978 and 1980.

      In M ay 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 Snowflake, for a 230-acre parcel owned by

the United States. As part of the exchange, the County conveyed the Snowflake

to the United States by a quit claim deed, which was recorded on August 17,

1994. The Snowflake then became part of the W hite River N ational Forest.

Plaintiff filed his quiet title action against the United States in November 2000.




3
         A “wild deed” is defined as “[a] recorded deed that is not in the chain of
title . . . .” Black’s Law Dictionary 446 (8th ed. 2004).

                                          -4-
      In O ctober 2002, the Pitkin County Treasurer issued a corrected treasurer’s

deed for the Snowflake, which explained that the 1912 tax sale was held late due

to “[l]ack of office help and time for the preparation and publication of the notice

in the newspaper.” Aplt. App., Vol. V at 455. To cure any cloud on the title,

Pitkin County executed another quit claim deed to the United States on

January 22, 2003.

                                Standard of Review

      The Quiet Title Act permits law suits 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).

      W e 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

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. W hen applying Colorado

                                         -5-
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.

Cooperm an v. David, 214 F.3d 1162, 1164 (10th Cir. 2000). W e 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 v. Agric. Ditch & Reservoir Co.,

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

       Plaintiff’s theory is that the 1949 treasurer’s deed issued to Pitkin County

is void because the 1912 tax sale w as untimely. However, he lacks standing to

challenge any deficiencies because neither he nor his predecessors in interest had

any interest in the Snowflake in 1949 when the treasurer’s deed was issued to the

County. See Turkey Creek, LLC v. Rosiania, 953 P.2d 1306, 1314 (Colo. App.

1998) (holding that a party lacks standing to challenge the validity of a deed

issued by a county treasurer in the absence of actual injury to a legally protected

interest).

       Plaintiff next argues that the correction deed is void because Pitkin County

had no authority to request the deed. W e agree with the district court’s

conclusion that this argument lacks merit under Colorado law . Under nearly

                                           -6-
identical factual circumstances, the Colorado Supreme Court held that where a

treasurer’s deed contains a defect, the treasurer has not discharged his duty to

convey and is not only authorized, but required to issue a correction deed. White

Cap M ining Co. v. Resurrection M ining Co., 174 P.2d 727, 735 (Colo. 1946).

      Here, the undisputed material facts established that the U nited States,

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

has superior record title to the Snowflake over plaintiff. His chain of title is

traced back to “wild deeds” recorded in the mid 1970’s and conveyed to him in

1978 and 1980.

                                 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 U nited 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 acquired title to the Snowflake by

adverse possession before the United States first claimed an interest 4 in the



4
       Plaintiff argues alternatively that the prohibition does not apply until the
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).

                                          -7-
property in 1994. The district court disagreed, and held that the clear and

unambiguous language of the statute barred his claims 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 Estate-

Overland 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 Snowflake began in 1974

when he staked the corners of the property and cut a small trail to a flat spot.

Assuming the truth of these allegations, we disagree that this activity constitutes

                                          -8-
actual possession under Colorado law. See generally Smith v. Hayden, 772 P.2d

47, 52 (Colo. 1989) (holding that actual possession requires some “visible means,

which gives notice of exclusion from the property to the true owner or to the

public and of the [adverse claimant’s] dominion over it . . . .”); Concord v. Huff,

355 P.2d 73, 76 (Colo. 1960) (holding that placing of markers on property does

not constitute actual possession).

      Beginning in 1977, plaintiff claims to have built an eight-by-eight wood

platform, made a corral from dead aspen trees in the mid-1980s, and stored a

friend’s old car on the property since the early 1990s. He considered the open

space signs posted by Pitkin County “warts,” and removed them. Aplt. Opening

Br. at 42. Assuming for argument that these activities could be considered actual

possession, which we doubt, it does not matter because they could not have

ripened into title until 1995, which is later than August 1994, when the United

States first claimed an interest in the Snowflake.

      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 Snowflake until 2002, when the correction

deed was issued. W e do not need to decide this issue because plaintiff could not

have adversely possessed against anyone until 1995, which is one year later than

when the United States first claimed its interest.




                                          -9-
       Likew ise, plaintiff’s claim of title to the Snowflake pursuant to Colorado’s

seven-year adverse possession statute also fails. Colo. Rev. Stat. § 38-41-108

provides that a person “in actual possession of lands . . . under claim and color of

title, made in good faith . . . [and] who for seven successive years . . . pays all

taxes legally assessed on such lands . . . [is] . . . the legal owner . . . .” Our

consideration of this claim begins and ends with the admitted fact that plaintiff

“did not pay any taxes” on the Snowflake. Aplt. O pening Br. at 47.

                                       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

entered summary judgment in favor of the United States on its counterclaim for

record title to the Snowflake. The judgment of the district court is AFFIRM ED.




                                                        Entered for the Court



                                                        W ade Brorby
                                                        Circuit Judge




                                           -10-
