25 Colo. 177 | Colo. | 1898
delivered the opinion of the court.
The vital question presented for determination in this case is, to whom does the title to real estate, dedicated for street purposes over lands platted as a town site, in accordance with the statutes of the state, revert upon the vacation of the street ?
This question arises upon the following facts: In 1872, E. W. Olin, as the owner of a tract of land platted and surveyed it as a town site, under the name of South Pueblo, which tract included within its limits a portion of a street designated on the plat thereof as B street. Shortly after the platting of this town site, the fee simple title to the lots so platted abutting each side of a portion of B street became vested in appellee, which was the status of the title to such lots at the time of the commencement of this action. The conveyances through which appellee deraigns title to these lots described them according to the plat thereof, and by reference thereto. Subsequent to the date when appellee acquired title to these lots, and while it owned them, the city council of South Pueblo vacated that portion of B street upon which they abut, and it is this part of that street which is the subject of controversy between the parties to this action. After the vacation of this portion of B street, Olin conveyed whatever
Appellant bases her claim of title to the premises in dispute on the proposition that upon the vacation of that portion of B street which includes them, the title thereto reverted to the original dedicator, E. W. Olin, and she having succeeded to his interest is now the owner; while, on behalf of appellee, it is contended that upon the vacation of this portion of B street the title thereto vested in the then owner of the lots abutting thereon. The law in force at the time these premises were platted will be found in art. 11, ch. 84, p. 618, et seq., of the Revised Statutes of 1868. Section 5 of this article provides, in effect, that the title to the premises designated as streets on a tract platted as a town site, shall vest in the city, in trust, for the uses expressed in the plat, and the statute thus specifically directing where the title to the streets shall vest, it is argued by counsel for appellant, that the grantee of lots in such plat only takes title to the ground actually included within the boundaries thereof, and no interest in the street abutting, and the title of the latter being held in trust by the city, that upon vacation it reverts to the original proprietor of the town site.
When a vendee purchases a lot 'marked upon a plat, reference being made to such plat for a description of the premises conveyed, the construction of the intention of the grantor making such conveyance is, that his vendee is entitled to all the appurtenant advantages and rights which the plat proclaims to exist, so far as the land included in it is owned by the grantor. City of Denver v. Clements, 3 Colo. 472. By such plat the tight which each lot holder in the
It is contended, however, by appellant, that this rule is not applicable in this case, for the reason that the fee to the disputed premises was vested in the city, in trust, subject to a reversion to her grantor, if vacated as a street, at the time he parted with Ms title to the lots abutting thereon. This proposition is based upon the assumption that the fee of the street being in the city, the proprietor of the town site had no interest in the street to convey, when he granted title to the abutting lots, and. therefore, granted none in such street. This proposition is defeated by the express words of the statute above cited. The platting of these premises as a town site, in accordance with the provisions of tMs statute,
We are aware that the supreme court of Illinois holds that on the vacation of a street the title thereto reverts to the original dedicator. St. John v. Quitzow, 72 Ill. 334, and Gebhardt v. Reeves, 75 Ill. 301, which are the leading cases in that State on this subject, and the first to announce that doctrine unqualifiedly, which was in 1874. It is claimed that our
It is urged upon our attention, that to permit appellee to hold the ground in question results in allowing it to acquire these premises without consideration. This proposition is not tenable. The proprietor of premises platted as a town site, by reason of dedicating a part for use as streets, enhances the value of the lots to which access may be had by means of such streets. His grantees pay this enhanced value, and the proprietor thus receives a consideration not only for the precise amount of land described in each lot, but, also, that embraced in the streets upon which the lots abut; and he who has already been once paid for his land cannot, in equity, be heard to assert title thereto as against one who has paid him the consideration therefor.
It is contended by appellant, that the Domke case, supra, is authority in support of the proposition contended for by her in this case. In that case the opinion rendered in the Gebhardt case, supra, is mentioned, and an intimation given that on the vacation of a street, the title thereto would not pass to the abutting lot owners. That question, however, was not involved in the Domke case. The court was then considering the right of Domke to recover damages resulting to his property from the use of the street in front of his premises for railroad purposes; the title to the street itself was not involved, nor was Domke making any claim for damages by reason of any ownership in such street, and what was there said by the supreme court on the subject now under consideration, or in any other cases where it might be said an intimation was given, that the abutting lot owner had no interest in the street, in which, however, the question now presented was not involved, must be treated as mere dicta, which, though entitled to respect, inasmuch as they go beyond the real questions considered in the cases in which they occur, are -not controlling in a subsequent suit when the
The question as to what rights other lot owners or the public might have in the disputed premises for street purposes is not presented in this ease. The only question involved under the character of action brought by appellant, is, which of the parties to this action is the owner of such premises, and entitled to the possession thereof. The judgment of the district court is affirmed.
Affirmed.