City of Leadville v. St. Louis Smelting & Refining Co.

29 Colo. 40 | Colo. | 1901

Lead Opinion

Mr. Justice Steele

delivered the opinion of the court.

The case of the City of Leadville v. The Coronado Mining Company et al., decided at chis term of court, is decisive of this. There are questions of detail, concerning the filing of the plats, and the manner of acceptance by the city, presented in this case, which do not appear in the case mentioned. The character of the litigation is the same, however, and the title of the city is assailed upon practically the same grounds in both cases. There are two adjoining additions to Leadville involved in this controversy,— The St. Louis Smelting and Refining Company’s Addition and The St. Louis Smelting and Refining Company’s Second Addition; and, for convenience, they will be designated as the first and second additions respectively. The plats of the first addition, exhibits 1 and 6, appear to have been executed, acknowledged and filed for record the same day, April 18, 1879, another plat exhibit 5 was executed and acknowledged April 16, 1879, but does not appear to have been filed for record with the county clerk. It was shown by the testimony, that there was filed with the city clerk prior to the acceptance by the city council, maps and plats of the two additions, and that, at the time of trial, there were no plats on file with the city clerk. The testimony also shows that exhibits 5 and 6 bear the genuine signature of John B. Maude. On May 1, 1879, the map of the first addition was approved by the city council; the record reciting that, “On motion, the resolution was adopted on a unanimous vote of the council declared on roll-call.” .The plat of the second addition was executed and acknowledged on June 30, and filed for record July 1. No record of approval by the city council was offered concerning the plat of the second addition. The plats of the first and second additions were executed under powers of attorney, by John B. Maude and J. R. Loker respectively. Exhibits 1 and 5 do not designate the dimensions of all the streets and allej^s; figures indicating the width of some of the streets do appear, however, and the lots and blocks are numbered; and a survey having been made, a competent surveyor, from the data contained in the description of the territory, could have accurately located any lot or block or alley in the addition and ascertained the dimensions thereof. The second addition contains a small tract of land which is connected with the first addition on the northeast corner. While no dimensions are given oa the plat (exhibit 4) of the lots or blocks or streets or alleys the dimensions can be ascertained and the property dedicated, determined. Exhibit 6 was separately objected to upon the ground that the file-mark was a forgery, but no ruling appears to have been made upon that objection. This plat is certified to by the county clerk as being a copy of a plat on file in his office.

We are of opinion that in the execution of the plats the defendant company complied substantially with the statute (2 Mills Ann. Stat. § 4373), and that exhibits 1, 4, s, and 6 should have been admitted as prima facie evidence of their contents. The case of Steckart v. City of East Saginaw, 22 Mich., 104, is relied upon by counsel for the defendants in support of their contention that the records of the city showing that the plat was adopted upon a unanimous vote of the city council, declared “on roll-call,” is not proof of the approval by a vote of three-fourths of the members elected to the city council. The case is clearly distinguishable from the case at bar. That was an action to restrain the city from the collection of an assessment levied by the city; and the charter of East Saginaw required that upon all questions of that character, the votes of all the members should be entered at large upon the minutes. This is an action by the city against a company which, many years ago, made a gift of property which it now seeks to evade; and there is no statute in Colorado requiring the votes of all the members to be entered at large upon the minutes. We think, however, the record of the city is a complete answer to the claims of defendants. The record states that the resolution was adopted upon a unanimous vote of the council, declared on roll-call; unless we indulge presumptions against the truthfulness of this record, the vote of all the members of the city council was in favor of the resolution. The plats of the first addition, then, were approved by three-fourths of the members of the city council, as required by our statute.

One of the many objections urged by the defendants to these plats was that they were filed with the county clerk and recorder before they were submitted to and approved by the city council. There is no evidence when the plats were submitted to the city council: the record does show that they were filed before approval. The provision which prohibits the filing of the plat before submission to, and approval by, the public authorities is merely directory. The precise order in which the plat is filed and accepted can not, in our opinion, affect an otherwise valid dedication. Moreover, these plats were in the possession of the defendant and were its property ; they were filed in the clerk and recorder’s office before approval, with knowledge of the law. If a wrong was committed, the defendant committed it, and it cannot now, after the lapse of time, be heard to say that its own wrong defeated its grant.

Counsel complain that it cannot be told which of these plats was approved by the city council; that no witness was produced who could say which particular plat was submitted to the council. That does not concern the city; the defendant, if there is any confusion, caused it by filing two plats with the county clerk and another with the city clerk, all of them duly and properly executed. The defendant should explain, not the city; for the rule is, that the city is presumed to have accepted that plat which is most beneficial, and the court will resolve all doubts against the donor.

While there is no record of acceptance of the plat of the second addition, the city, with the assent of the company, took possession of the streets at or about the time of the dedication, and has been in possession of the streets, and has improved them from time to time, ever since. Under such circumstances, as-against the donor, an acceptance will be presumed. “An acceptance, after the lapse of ten years, may well be presumed, no light proof of which is the act of bringing this suit.” Des Moines v. Hall, 24 Iowa, 234. •

The powers of attorney under which these dedications were made are broad enough to authorize a conveyance. On each plat is indorsed the following: “And the said company hereby dedicates and conveys to said city as public property the streets and alleys so as aforesaid laid off, marked, and designated as such on said plat.” This, as we have shown in the case of Leadville v. Coronado Mining Company, is the conveyance of the fee independently of the dedication, but does not enlarge the estate granted by the dedication; and the fee having passed by the dedication as well as by the conveyance, it follows that the defendants have not the right to extract ores from beneath the surface without the consent of the proper authorities of the city.

It is contended that the word “fee,” as used in the statute, is a base, determinable, or qualified fee, and that a coveyance of the fee in streets and alleys grants only a fee in the surface. The definition of the word fee, in American law, as given by Black’s Dictionary, is, “It is an absolute estate in perpetuity, and the largest possible estate a man can have, being in fact, allodial in its nature;” and this appears to be the generally accepted definition.

In the case of Zinc Company v. City of La Salle, 117 Ill. 411, it is held that “The fee vested in the corpo' ration by a statutory dedication is a qualified, base or detrminable fee, which may continue forever, but is liable to be determined by some event or act circumscribing its continuance, as, for instance, by the vacation of the plat, or the entire and permanent abandonment and disuse of the street by the public and abutting lot owners.” In this sense, the fee of the city of Leadville is a qualified, base, or determinable fee; but the absolute control and dominion over the streets is not impaired, nor did the donor convey less than his entire estate by the dedication and conveyance, and the interest which the abutting lot owners have is a mere possibility that at some future time the streets will be abandoned, in which event the fee will pass to them by operation of law.

For the reasons assigned herein and in the case of the City of Leadville v. The Coronado Mining Company, the judgment of the district court is reversed .and the cause remanded.

Reversed.

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Rehearing

On Petition for Rehearing.

Chief Justice Campbell and Mr. Justice Gabbert

concurring specially.

We concur in the judgment of reversal for reasons similar to those given in City of Leadville v. Coronado Mining Co., et al., ante p. 17. Having in that opinion sufficiently stated our views, they need not be repeated here, but are to be observed by the trial court in case further proceedings be had.

The petition for rehearing should be denied, the judgment reversed, and the cause remanded with instructions, if a new trial be had, that it be in accordance with the views above referred to.

Reversed.