27 Colo. 159 | Colo. | 1900
delivered the opinion of the court.
Appellants claim their right to the disputed portion of the alley by grant, adverse user under the statute of limitations of the state, and by prescription.
It is urged by counsel for appellee that appellants were not entitled to introduce any evidence to establish a right to the disputed portion of the alley by grant. This point is not well taken. It is alleged in the complaint “ that the plaintiffs, and each of them, are entitled to and have the right to use ” the way in dispute for alley purposes by grant and prescription. This averment is sufficient to advise appellee that plaintiffs would attempt to establish their right to the easement in dispute by grant; and was, therefore, sufficient to entitle them to introduce evidence for the purpose of establishing such right upon that ground.
We will first determine what rights, if any, are established in appellants by grant.
In June, 1874, Nat Wilson conveyed portions of the north 109 feet of the east twenty-two feet of lot 27, block 91, city of Colorado Springs, to John Stanley, Jr., C. H. White, Emeroy L. Sweet and Thomas Wanless, such conveyances being in severalty, except as to the grantees White and Sweet, who purchased their tract jointly. On the same date an agreement was entered into between these parties, whereby an alley was established embracing five feet of the ground purchased from Wilson, and five feet adjoining it on the west, which he owned, which alleyway included the remaining portion of lot 27 and three and one fourth feet of lot 28, adjoining lot
By these two agreements a private alley ten feet in width was established from the main street upon which lot 27 fronted, to the public alley in the rear, with a jog at the point where the two sections joined, by reason of which a portion of lot 27 was left lying to the west of the south portion of such alley. Appellants, except Durkee and Struble, are the owners in severalty of the north 109 feet of the east twenty-two feet of lot 27, Bonbriglit and Hibbard owning two tracts. Their tract on the corner of Pike’s Peak avenue and Tejón street will be designated as the “north tract,” and the one adjoining, the “ south tract.” Appellant Struble owns the twenty-three feet of lot 27, adjoining the east twenty-two feet of the north 109 feet of lot 27 on the south, and a part of lot 28, three and one fourth feet in width, immediately adjoining on the west. Appellant White owns the tract adjoining the south tract of Bonbright and Hibbard, and appellant Van Orden the tract between that and the one owned by Struble. Appellant Durkee is the owner of lots 28 and 29, except the east three and one fourth feet of lot 28. • Appellee Jones owns the remaining portions of lot 27, and the adjoining part of lot 28, three and one fourth feet in width, subject to whatever alley rights exist over and across some portion of the west seventeen feet of his premises. Tins is the alleyway in dispute. In order to ascertain
BONBRIGHT AND HIBBARD SOUTH TRACT.
June 26,1874, Wilson to White and Sweet; July 23,1874, Sweet to White for south half of'this tract; July 23, 1874, White conveys to Sweet the north half of this tract; January 8, 1875, Sweet to Abbott and Spier the last mentioned tract.
DURKEE TRACT.
March 16, 1876, Wilson to Stewart; December 29, 1880, Stewart to Wells; January 24, 1883, Wells to Adams; December 20,1889, Adams to Durkee.
SOUTH PORTION OE ALLEY TRACT.
February 21,1879, Sweet (her interest) to White; January 11, 1881, White to Wells, undivided -i interest in above described tract. White and Wells also obtained title to that portion of lot 27 lying west of the south portion of the alley, as originally established, and the east 3J feet of the south 71 feet of lot 28. These conveyances embraced the west 17 feet of the land now claimed by appellee. They then transferred by warranty deed, without any reservation whatever, the land last above described to remote grantors of appellee, who deraigns title thereto by mesne conveyances, which make no mention of any reservation of any part thereof for alley purposes. After these conyeyances Wilson quitclaimed to White and Wells his interest in this south alley tract.
STRUBLE TRACT.
Appellant Struble appears to have obtained title to the
The agreement between Wilson, White and Sweet regarding the south portion of the alley, although it contained no mention that it was appurtenant to any particular estate, must, so far as it affects the rights of appellant White, and the rights of Bonbright and Hibbard to their south tract, be deemed an appurtenance, originally, to these tracts, because from their situation with respect to this portion of the alley, its availability for use in connection therewith, and the fact that it adjoined an alley in which these parties also had a right, are circumstances from which it is clearly inferable that it was intended by the parties entering into the original agreement respecting it, that it should be appurtenant to these lands. Kramer v. Knauff, 12 Ill. App. 115; Hopper v. Barnes, 45 Pac. Rep. 874; Dennis v. Wilson, 107 Mass. 591; The L. & R. Co. v. Koelle, 104 Ill. 455.
The tract to which this alleyway originally attached as an appurtenance, was jointly held by White and Sweet. By their subsequent division of these premises, the right to the use of the alley attached to each portion as an appurtenance. Hills v. Miller, 3 Paige’s Chan. 254; 6 Ency. Law, 152, n. 2.
When Mrs. Sweet conveyed her tract to Abbott and Spier, the right to the use of the south portion of the alley in connection with this tract passed as an appurtenance, without express mention in the deed. Clark v. Gaffney, 116 Ill. 362.
Consequently, the conveyance of Mrs. Sweet of her interest in this alley to White, gave him no rights therein, because prior to such conveyance she had already parted with her title and interest therein by virtue of _her conveyance of the tract to which this alley was áppurtenant. The-only interest which White had in this part of the alley was by virtue of his ownership of his tract which he originally owned in common with Mrs. Sweet, and the parts of 27 and 28 owned jointly
Wells and White had succeeded to all the rights of Wilson prior to these conveyances, and it is not necessary to determine what rights the latter may have reserved in this portion of the alley, under his agreement regarding it with White and Sweet, because Wells and White purchased the land from him to which it could in any way attach as an appurtenance. It does not appear what date the immediate grantee of Wells and White of the west seventeen feet of the tract now owned by appellant Struble, obtained his titlé. If a conveyance of this portion of the Struble tract was made prior to the time when the west seventeen feet of the ground now owned by appellee was made by Wells and White, it might be that under the agreement respecting this part of the alley Struble would have acquired a right therein by grant, but whether he has or not cannot be determined from the record.
After the conveyance by White and Wells of the ground embraced in the disputed alley, the latter conveyed the premises now held by appellant Durkee, but as Wells, by his own act, had extinguished all rights, so far as he was concerned, in the alley for the benefit of these premises, he had none to convey. From these considerations, we conclude that it appears from the record evidence, that the rights to the portion of the alley over the premises of appellee, in so far as they
We will next consider the claim of appellants (other than Bonbright and Hibbard) to this alley under the statute of limitations of this state. Sec. 2924, 2 Mills’ Ann. Stats.; amended, sec. 2924, 3 Mills’ Ann. Stats. Conceding that this statute applies to easements, and that upon full compliance with all its provisions, title to an easement may be obtained, nevertheless, it cannot aid appellants; because it contemplates that “color of title,” made in good faith, upon which the party seeking the benefit of this section relies, must be based upon a “paper title.” De Foresta v. Gast, 20 Colo. 307; Knight v. Lawrence, 19 Colo. 425.
The claim of appellants to this alley by prescription is based upon the fact, as they assert, that it has been used by them and their grantors for more than twenty years. This claim is not tenable, as it appears from an examination of the conveyances above abstracted, and others in the record affecting their title, that neither of appellants, nor any one of their grantors, has been the owner of these tracts for the period of twenty years; and although more than that period has elapsed from the time the alley was first established, down to the date when this action was commenced, such rights would be inchoate as to any particular owner, unless enjoyed for the full period, in none of fhe~conveyaiTEfeS to these several tracts is any attempt made to convey such rights, and as inchoate prescriptive rights to easements do not pass by deed, unless ^emhcalWmeñSoñed. appellants'TlrTAa^mrecrfm'easement in-'th"e~dispfifed alleybypi^rintron. W ashburn on Easemeiitkl^tii ed.), 59 Spaulding v. Abbott, 55 N. H. 423: Swazey v. Brooks, 34 Vt. 451; Meek v. Breckinridge, 29 Ohio St. 642.
It is urged by counsel for appellants that the court erred in the reception and rejection of testimony. Numerous errors are assigned of this character, only one of which will be noticed, as it is clear that, even if the court technically erred in this respect, as to those matters which will not be passed
After the transaction by which Wells and White disposed of the west seventeen feet of the ground now claimed by appellee Jones, it appears that the south portion of the alley was moved westward so as to be directly in line with the north part, and the alley to the south, as originally established, built upon, except a strip on the west side about one foot in width. This arrangement appears to have been acquiesced . in by all parties interested, and evidently was made for the particular benefit of the then owners of the Jones tract, as it
On behalf of appellee it is claimed that what is designated as the Walling agreement establishes the rights of Jones to the premises in dispute, clear of any easement in favor of either of appellants. From this agreement, it appears that one Walling, who was then a tenant of the owner of the south twenty-five feet of the Jones tract, agreed with appellants Durkee, Struble and White, and one T. S. Brigham, who was then the owner of an undivided one-half interest in the south tract now belonging to appellants Bonbright and Hibbard, that for the period of three years he would not obstruct the passage-way across the premises occupied by him, which, according to the description of such way, did not include any ground embraced in the alley as originally established over these premises. For the purpose of proving that the parties who entered into this agreement with Walling had no rights in such premises by prescription, or under the statute of limitations, this evidence was material, but the only party who signed this agreement, who had a right in the disputed way by grant, was Brigham. It is not so worded as to indicate an acknowledgment upon his part that he had no such right, did not embrace a way in which he was interested by grant, and therefore, although placed upon record, was not an instrument affecting the title to the premises now owned by appellee, upon which he could rely as an acknowledgment that the grant of the right of way across his premises as an appurtenance to the Bonbright and Hibbard south tract had been surrendered, or would not be asserted.
Modified and affirmed.