                                                               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

D A V ID H . C LA N CY ,

      Plaintiff/Counterclaim-
      Defendant/Appellant,
                                                    No. 04-1333
v.                                         (D.C. No. 00-M W -2360-(OES))
                                                     (D . Colo.)
C HA RLES A . M ILLER ; J. H .
W A T ER S; D A V ID BR OWN ;
EDW ARD CAM ERON FLYNN, 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, David H. Clancy, 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 claim for 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 ten-acre patented

mining claim known as the Annie H ayford Lode M ining Claim (H ayford). It is

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

Pitkin County, Colorado.

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



*
       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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
1
      The parties consented to the exercise of jurisdiction by a magistrate judge.

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hundred years ago with a location certificate recorded in 1883, and the issuance

of a patent in 1892. Property taxes on the Hayford were last paid in 1937, and the

property was included on the 1938 delinquent tax list, which was published for

four weeks beginning in November 1938. Thereafter, the Hayford was offered at

a December 12, 1938 tax sale. Because there were no bidders, it was struck off to

Pitkin County through a treasurer’s certificate of purchase.

      On September 15, 1950, the Pitkin County Treasurer issued and posted a

Notice of Purchase of Real Estate at Tax Sale and of Application for Issuance of

Treasurer’s Deed for the Hayford, and on November 20, 1950, a treasurer’s deed

issued to the Pitkin County Board of County Commissioners. 2

      Plaintiff’s chain of title began in M arch 1994, when one of his predecessors

in interest recorded a “wild deed,” 3 and later purported to convey an interest in

the Hayford to him by a general warranty deed, which was recorded on April 11,

1994. Approximately two weeks later, plaintiff tendered a tax payment, which

was refused.

      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


2
      Pitkin County continued to own the Hayford until 1994 when it was
conveyed to the United States. From 1950 through 1994, no property taxes were
assessed because county-owned property is tax exempt. Colo. Rev. Stat.
§ 39-3-105.
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).

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

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

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

Plaintiff filed his federal court quiet title action against the United States in

November 2000.

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

deed for the Hayford, which explained that the 1938 tax sale w as held late due to

inadequate staffing. 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

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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. W hen 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.

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.

                                       Discussion

      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 he acquired title to the Hayford in April 2001 by

adverse possession pursuant to Colo. Rev. Stat. § 38-41-109, and thus his title is

superior to that of the United States, which did not obtain good title until 2004

when the district court entered its order for record title.

      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

                                           -5-
possession.” 28 U.S.C. § 2409a(n). Plaintiff asserts that the prohibition does not

apply if he or his predecessors in interest acquired title to the Hayford by adverse

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

1994. The district court disagreed, and held that the clear and unambiguous

language of the statute barred any 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 in this case to support such

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

decision because it found that plaintiff’s adverse possession claim was 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).

      A claim of adverse possession pursuant to Colo. Rev. Stat. § 38-41-109



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).

                                          -6-
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 begins and ends with plaintiff’s admission that he has never paid taxes

on the Hayford. Aplt. App., Vol. IV at 338. W e also disagree with his argument

that his one-time attempt to pay taxes complies with the statute, because it

requires the payments of all legally assessed taxes. See Eberville v. Leadville

Tunneling M ining & Drainage Co., 28 Colo. 241, 243, 64 P. 200, 201 (1901).

Similarly, plaintiff did not obtain color of title until April 1994, which means that

he could not have adversely possessed the property until April 2001, which is

nearly six years after the United States first claimed its interest in August 1994.

See Fallon v. Davidson, 320 P.2d 976, 979 (Colo. 1958) (holding that the

seven-year statutory period does not begin to run until the deed upon which a

party in possession claims gives him color of title has been recorded).

      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 1883,

has superior record title to the Hayford over plaintiff, who claims his title through

a non-existent claim of adverse possession.

                                      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 claim for adverse possession. The court also correctly entered

                                          -7-
summary judgment in favor of the U nited States on its counterclaim for record

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



                                                   Entered for the Court


                                                   W ade Brorby
                                                   Circuit Judge




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