Bailey v. Platte & Denver Canal & Milling Co.

| Colo. | Dec 15, 1888

Rising, C.

It is contended by appellants that the Platte & Denver Ditch Company never acquired a right of way for their ditch through the lands now known as “Hunt’s Addition” for a longer period of time than twenty years from the date of the incorporation of said company, and that the sale of all its property and rights by said company to the appellee did not and could not convey to appellee any right of way through said lands, to be held and used after the expiration of said twenty years, that being the period prescribed by the statute for the existence of said company.

The absolute right of said company to build said ditch through said lands, and to maintain the same until the expiration of its charter, is not questioned in the argument for appellants, but it is contended that the property rights of said company in said right of way were limited to the use of said lands for a right of way for said twenty years, and that it could not convey to defendant a greater property right than it possessed. The right of a corporation to convey its property is not questioned. That the property rights of said ditch company in the right of way for said ditch extended beyond the period of its existence as limited by statute is questioned, and this question is the only one raised by counsel for appellants in their argument. To determine this question we must ascertain how and by what fight said company acquired a right of way for its ditch.

At the time the right of way through. the lands now known as “Hunt’s Addition” was taken by said company the title to said lands was in the United States; but A. Cameron Hunt had an existing pre-emption claim thereon, and for which taking by said company said Hunt gave a license. The right so acquired to occupy said premises for a right of way for said ditch became property of the company, and, under the statute then and now in force, the company could sell and dispose of it. Laws 1864, p. 61, ■§ 43; Gen. St. § 240. And upon dissolution of the corporation, upon the expiration of its charter, such property would not revert to the owner of the servient estate, but would pass to and rest in the board of directors or trustees of the corporation, or the managers of the corporate affairs, by whatever name kuown, acting last before the time of such dissolution. Gen. St. §§ 341, 342.

From these statutes we s,ee that the property rights acquired by the ditch company are the same as when such rights are acquired by a person, and that the duration of such right no more depends upon the life of the corporation than upon the life of the person. It follows, therefore, that the right acquired by the company to a right of way over appellants’ lots was not dependent upon or limited by the life of the corporation.

Appellants’ contention is not well founded, and the judgment should be affirmed.

Stallcup, 0., concurs. De France, 0., dissents.

Per Curiam.

For the reasons stated in the foregoing opinion the judgment is affirmed.

Affirmed.

Elliott, J., not sitting, having tried the case below.