6 Colo. App. 49 | Colo. Ct. App. | 1895
delivered the opinion of the court.
Obed Crisman was a grantee under a deed with full covenants, executed in November, 1888, by Sullivan and Thatcher. The property conveyed was lots 101 and 102 in an addition to Cottage Hill in Arapahoe county. It was unimproved, and neither grantors nor grantee had other than the constructive possession which the title may draw after it. Conceiving that there had been a breach of the covenants, Crisman brought the present suit, and stated five different causes of action. In three of them the breach was stated to consist of a ten years user by the public. This may be dismissed from consideration, since no proof was offered to support it. In the other two the plaintiff averred (to state it generally) a breach of the various covenants contained in the deed, other than the covenant against incumbrances. The breach laid was the establishment of a highway by the boards of county commissioners of Arapahoe and Jefferson counties in 1874. In making his proof of the proceedings of the Arapahoe county board, the plaintiff offered the report of the viewers • and the order of the board. The order recited the report
The litigation involves several troublesome questions. One of the chief difficulties springs from the circumstance that the plaintiff failed to make some proof which, according to our view of the law, is indispensable. When the
The question recurs as to the plaintiff’s remedy and the extent to which he must go in making out his case. Whether the pleading, as it stands, would permit the plaintiff to have judgment on proof of what might be adjudged a breach of the covenant against incumbrances, we need not decide. It is a somewhat difficult question, and since the case must go back for another trial, we would suggest that the complaint be so far amended as to contain a specific allegation of the breach of this covenant. Under the general weight of authority, the plaintiff may recover when he proves the legal existence of a road, and produces a deed containing a covenant against incumbrances, though he may not allege the other two, and recover on the strength of either, when his evidence only proves the existence of a highway. Rawle on Covenants of Title, pp. 80 and 101; Devlin on Deeds, secs. 888-890.
The chief difficulty flows from the lack of proof of one of two things, either one.of which might sustain the judgment. We are not prepared to disagree with some of the authorities which, in an action based on the existence of a highway, hold the plaintiff makes out his case when he produces an order establishing it made by the proper authority. This seems to be the doctrine of some of the states, and we are not compelled to dissent therefrom. Dumoss v. Francis, 15 Ill. 543; Galbraith v. Littiech, 73 Ill. 209.
We have been referred to no case adjudging that no other part of the record is admissible, and that if the other part of the record be produced, and it shows the board acted without authority, such evidence may not be offered by the defendant in support of his contention that there has been no
It is wholly unnecessary to discuss the question of the extent to which presumptions may be indulged in with reference to the procedure of courts or bodies of limited jurisdiction. Had the petition been lost, or some of the papers in the chain been missing, then it might possibly have been necessary to consider how far we should go in presuming the board was duly authorized to act. Some other circumstances might be conceived where the doctrine of presumptions would aid the plaintiff. Had the other recited that on a petition duly signed, and on a report adequately made, the board considered the matter, and having considered it, ordered the road established, a legitimate inference might be drawn that the board acquired its jurisdiction in a statutory waj-, and was duly authorized to proceed. These questions, however, are purely matters of speculation, for the order itself recites nothing. Under this circumstance, the balance of the record must be legitimate evidence for the purpose of ascertaining what the board did, and on what basis it proceeded. We do
Disregarding any apparent exceptions, — and the exceptions are more apparent than real, — it may be safely stated that to authorize a board of limited jurisdiction and authority to proceed, a statutory petition must be presented. By this we mean there must be a petition signed by the requisite number of people, though whether the petition itself must in all other respects be in exact conformity to the statute, we do not determine, since the cases are not in harmony on this matter. They do, however, unite on the proposition that a petition must be filed, though doubtless some of them go so far as to hold if the order recites the fact of the petition the matter may not be otherwise questioned. The present case is not brought at all within the scope of these conflicting authorities. It is a naked case of an order reciting nothing, but resting for its validity upon a petition which on its face shows a failure to observe the statute. The facts in the case and the inspection of the record enable .us to deeide whether the plea of nul tiel record has been sustained. Since it was plainly settled by the record that the board was without jurisdiction to establish a road, we conclude its order was void, and a lawful highway has not been proven.
There is possibly enough in the order, if sufficiently supplemented by other proof, to justify the conclusion that,
The order recites the finding of the viewers as to the value of the land taken, and states that Zuloff was the owner. The clerk is ordered to draw a warrant for the damages, and it may be an examination of the record will disclose the fact of Zuloff’s ownership when the order was made, and that he accepted the warrant in satisfaction of his claim of title. The two authorities cited seem to indicate such an acceptance would cure all the irregularities and defects in the proceedings, estop the owner from any claim of title, and it might, if the road is shown to have been devoted to public use, be operative against the grantees. This matter is suggested by the arguments and by the record, and while making these concessions, we do not wish to be understood as directly deciding them until the evidence on' the subject is produced, and the matter comes up for discussion on this question. We simply say these things may be true, but we do not care at this time to consider or determine them.
For the error which the court committed in excluding the testimony offered by the defendants, the case must be reversed. The court below will permit the plaintiff to amend his pleading in such manner as he may be advised, and to grant a similar privilege to the defendants by way of amendments to their answer.
Reversed.