27 Colo. App. 470 | Colo. Ct. App. | 1915
This action grows out of a dispute between plaintiff in error and defendant in error, plaintiff and defendant respectively in the trial court, and hereinafter so referred to, over title to and right of possession of certain parts of lots 8, 9 and 10, block 103, in the East Division of the City .of Denver.
The principal claims, of the parties, to the property in controversy are based upon two different surveys and maps of the City of Denver, including the East Division thereof, : — one made by E. D. Boyd on or about August 8th, 1859,
It is admitted that in the year 1859 section 33 and the west one-half of section 34 in Township 3 south of Range 68 west of the 6th P. M., was public domain, and that the same was settled upon and occupied as a townsite, and was known and designated as the City Of Denver. In the year last above mentioned, and before the incorporation of the City of Denver, the Boyd survey and map were made, which located, marked and numbered the lots and blocks, and fixed, located and named the streets and alleys of said townsite. On or about November 7th, 1861, the City of Denver was duly incorporated as a municipal corporation, under and by virtue of a special act.of the legislature of the then territory of Colorado; and on May 6th, 1865, under and by virtue of the terms and conditions of acts of congress approved respectively May 23rd, 1844, and May 28th, 1864, one James Hall, then Probate Judge of the County of Arapahoe in the territory of Colorado, duly entered, in the United States District Land Office, the lands so settled upon and occupied as a townsite, in trust for the use and benefit of the occupants thereof, as townsite settlers, according to their respective interests therein. On or about June 24th, 1865, one F. J. Ebert, under the direction of the city council of the City of Denver, made a survey and map of said townsite of the City of Denver, which said survey and map were filed in the office of the Recorder of Arapahoe County, Territory of Colorado, on or about' June 29th, 1865. The Boyd survey and map had never been filed in the office of the City Clerk of the City of Denver, nor recorded in the office of the County Clerk and Recorder of Deeds of Arapahoe County, Territory of Colorado, until February 26th, 1876, when by authority of a resolution of the city council of said City of Denver, passed February 24th, 187.6, they were so recorded. No official recognition by the City of Denver is shown to
The principal question presented on review is whether the plaintiff showed bya preponderance of the evidence that the lots in controversy were conveyed according to the Boyd survey and map. This burden was upon her, and in support of the finding of the trial court that she failed in this respect, the deeds, themselves, for said lots, and the facts and circumstances attending their execution must be considered in order to determine the intention of the parties therein.
As to lot 8-, the deed, itself, expressly recites that said lot was conveyed “according to the map and survey of F. J. Ebert,” which recital, under the circumstances of the record before us, necessarily controls; and as to lots 9 and 10, in addition to what has herein already been said regarding the conditions existing at and about the time of the execution of the deed thereto from which plaintiff, deraigns title, we are at liberty, as was said in City of Denver v. Pearce, 13 Colo., 383, 385, 22 Pac., 774, 6 L. R. A., 541, to consider the history of the title to the premises, and a construction of the conveyance under which the plaintiff claims, not only from the evidence, and deeds of conveyance, set forth in the record, but also from the statutes' and laws relating to town-sites which were in force at the time the deed was executed and delivered.
In the case above cited, at page 388, it is said:
“To acquire control of the bed of Cherry Creek,' as defined by the Ebert Survey, had long been the settled policy of the municipal authorities. This policy is clearly disclosed by the record, and by the statutes which were in force at the time this sale was had. By an act approved' February 10,*475 1865, (Colorado Legislature), the city was authorized to ‘define and fix the boundaries of the channel of Cherry Creek within the corporate limits of the city; to remove obr structions therefrom; and to prevent persons from obstructing the same.’ Pursuant to this act, and o.n June 22, 1865, by formal resolution, the plat of the city made by F. J. Ebert was approved and ordered to be filed for record in the office of the recorder of Arapahoe County. By an ordinance thereafter enacted the channel of the bed of Cherry Creek, within the corporate limits, was declared to be a public place; and it was further declared to be ‘unlawful to place any wall, building, fence, dike, earth, manure, garbage or other obstruction in or upon the same.’ By an act of the legislature approved February 9, 1872, it was provided that ‘the said city council shall have power and authority to condemn, and appropriate in fee to the use of the city, the strip of land within the bed of Cherry Creek, as defined by the city council. * * *’ Sess. Laws, 1872, p. 207. In the light of the statutes, resolution and ordinances cited, it is clear that appellant intended to purchase the bed of Cherry Creek for the benefit of the public. It is equally clear that it was the intention of the trustee, at the time the sale was made, to convey to the city all of the bed of the stream, title to which remained in him. It follows that the trustee must have intended to convey to appellee’s grantor a parcel of land bounded, not by the thread of the stream, but by the bank, as defined by the Ebert survey.”
The Probate Judges were trustees for the use and benefit of the occupants of the land entered, with power and authority to pass upon the .proofs of their occupancy of the land at the date of entry. Therefore, Probate Judge Hall, grantor in the deed now under consideration, and who was also County Judge at the date thereof, had constructive notice, at least, that the Ebert survey and map was the only survey and map of the Denver Townsite filed or of record in the recorder’s office of the County of Arapahoe, Territory
In the evidence, it appears from the testimony of plaintiff’s husband and other witnesses that in 1879, the premises in dispute were on a level with Cherry Creek; that in 1882, the city drove a line of piling angle-wise with the creek, about 15 feet from the present retaining walls, to confine the floods; that this piling stood about 6 or 7 feet above the ground, and was later reinforced by a slag wall; that the premises were not fenced nor in use below the piling or slag wall; that they were not permanently improved; and were used only for storage purposes for building material and the like.
Further, it is stipulated that, in plaintiff’s chain of title to lot 10 from the government to herself, there appears a conveyance from Richard E. Whitsitt to Ira C. Grant dated June 26th, 1877, in which said lot is described as lot 10, block 103, East Division of Denver, “as per map of F. J. Ebert.” According to this description, the deed does not purport to convey any part of said lot other than is marked and defined by the Ebert survey and map, and being prior to the transfer of said lot to plaintiff, we are unable to see wherein any deed subsequent thereto could enlarge the grant as therein contained.
It is a matter of common knowledge that Cherry Creek is and has been a torrential stream, most difficult and expensive to confine in any ordinary channel, and frequent floods, prior to the city’s building of the present retaining walls, spread over much of the city, and did much damage
Under the finding of the trial court of the issues in favor of defendant, and the chief issue between the parties being whether the court should be governed by the description of the bed of Cherry Creek as made by the Boyd or the . Ebert survey, it would seem that the trial court did not find that plaintiff had established her chief contention that the Boyd survey should control; and failing in this, the record then does not contain the material facts upon which plaintiff must base her claim to title and possession by virtue of the statutes of limitations, even if the provisions of said statutes do operate against a muncipal corporation, upon which question we need not and do not pass.
But it is contended by plaintiff that, if Holliday, from whom she deraigns title to lots 9 and 10 by mesne conveyances, obtained his deed from Probate Judge Hall according to the Ebert survey, then she is the owner of the adjoining bed of Cherry Creek to the centre or thread of the stream, according to the Ebert survey; and further, that if she is to be controlled in her claims by the Ebert survey, she is entitled to the accretions produced by the change in the stream by reason of floods, or otherwise, — or, in other words, that she is entitled to such portion of the bed of Cherry Creek as has been reclaimed, either by natural or artificial means, for the reason that, being a riparian owner, she is entitled to the same length of shore line upon the changed or new bank of the stream as she had originally upon the former or old bank.
Therefore, the rights of the plaintiff thus contended for must be controlled by a construction of the Holliday, deed in accordance with the facts and circumstances attending its execution, so as to learn the intention of the parties thereto. It was the province of the trial court to determine this intention from the attending circumstances and evidence detailed at the trial, and to ascertain whether it was the purpose to convey to the grantee in the deed any riparian fights, or to reserve to the City of Denver all of the bed of the creek in pursuance of the purposes of the legislature expressed in the act of February 10th, 1865, and the resolution and ordinance of the city council passed in conformity thereto ; and from the general finding in favor of the defendant, we must infer that the trial court found this issue for the
It is also argued that plaintiff acquired title to the property in dispute by reason of certain tax sales, and that the city is now estopped from claiming any part of the land, as against her rights, by reason of its conduct in placing ■said lots upon its block-books and assessing them as full lots of 25x125 feet for taxes and special improvements, and in receiving and collecting such taxes and assessments from plaintiff and her mesne grantors.
To this contention it may be said that it is settled that the levy and collection of taxes on property by the assessors and tax officers of a city will not estop the city from asserting title to the property for the benefit of the public Board of Park Commissioners v. Taylor, 133 Iowa, 453, 108 N. W., 927, 931; City of Seattle v. Hinkley, et al., 67 Wash., 273, 121 Pac., 444, 446.
Under the state of the record before us, we are not able to say that the trial court committed error in holding that the plaintif had not established the material allegations of her complaint by a preponderance of the evidence, as she was required to do; and, therefore, the judgment of the trial court is hereby affirmed.
Affirmed.