concurring in part and dissenting in part.
I dissent to the portion of the majority’s opinion determining that Peters’ claim under § 38-41-108, C.R.S. (1982 Repl.Vol. 16A) is not sustainable.
A fair reading of § 38-41-108 indicates that, to establish ownership of land in a quiet title action, an adverse possessor must:
1) Have actual possession for seven years under claim and color of title made in good faith; and
2) Pay all taxes legally assessed on the property during the period of possession.
The trial court found, and the defendant and intervenors do not dispute, that Peters was in possession for more than seven years and that he claimed his interest under color of a quitclaim deed made in good faith and recorded on March 12,1982, more than seven years prior to the filing of this action. Further, there is no dispute that Peters paid all taxes legally assessed against the property from 1982 through 1989 prior to filing this action in 1990.
Based on the undisputed evidence that Peters paid all taxes assessed against the property during the seven-year period of possession under color of title, the trial court concluded that: “[T]axes were paid for seven successive years prior to the filing of this claim.”
Because the taxes assessed for the year 1982, a year when Peters was in possession under color of title, were paid on September 23, 1983, six years, four months and twenty-seven days before the filing of the complaint, the majority concludes that the trial court erred in finding seven years payment of assessed taxes on the property.
The plain language of § 38-41-108 does not, however, require that the first payment be made seven years prior to the filing of the action. The statute merely requires that, to be declared the legal owner of the land, the possessor must pay all taxes legally assessed on the property during the seven successive years of possession under color of title.
Based upon its reading of Whitehead v. Bennett, 92 Colo. 549, 22 P.2d 168 (1933), the majority concludes that the first payment must be made more than seven years prior to the filing of the action. However, I conclude that Whitehead does not impose such a requirement.
The complaint in Whitehead alleged that plaintiff had paid taxes for a period of seven years before filing suit to quiet title by adverse possession. Because defendant did not specifically deny this allegation, plaintiff argued that the allegation was deemed admitted and that he was, therefore, relieved of the burden of proving this element of his adverse possession claim. Whitehead does not disclose the length of time, if any, for which plaintiff paid assessed taxes.
The supreme court concluded that plaintiffs claim failed as his allegation was not supported by the facts in evidence which showed that the first payment of taxes was made less than seven years before plaintiff filed the quiet title action. It is this language, which would impose a requirement not found in the statute, upon which the majority relies.
*44However, the next paragraph of the opinion expressly states that plaintiffs claim failed only because he did not prove payment of taxes for the required period of time. On the basis of this language, I conclude that the supreme court did not read an additional requirement into the adverse possession statute.
I further conclude that the majority’s reb-anee on Cristler v. Beardsley, 25 Colo.App. 369, 138 P. 68 (1914) and Empire Ranch & Cattle Co. v. Howell, 22 Colo.App. 584, 126 P. 1096 (1912), is misplaced. I do not believe these cases support the conclusion reached by the majority because they are factually distinguishable: Both Cristler and Empire concern the possessor’s color of title and payment of taxes after purchasing a deed at a tax sale held to satisfy overdue taxes.
The evidence amply supports the trial court’s conclusion that Peters was in possession under color of title made in good faith for a period more than seven years prior to filing this action and that he paid all taxes legally assessed on the land during that period. Therefore, I would affirm the judgment of the trial court related to Peters’ claim under § 38-41-108.
I concur as to the remaining parts of the opinion.