Trine v. City of Pueblo

21 Colo. 102 | Colo. | 1895

Mr. Justice Goddard

delivered the opinion of the court.

The sole question presented is whether plaintiff’s grantor, by adopting the north line of Tenth street as a boundary of the land conveyed to J. Y. Farwell in the trust deed executed February 15, 1878, made an irrevocable dedication of the strip of land in controversy as a public street. We are relieved from determining what effect should be given to such a description as evidencing the intention of Conley to make a dedication, or whether the court below was correct in its conclusion that “Conley manifested by the recitals in said deed a present intent, then and there, to make an irrevocable dedication of the land in controversy to the public, as a street,” since, under the rule announced in City of Denver v. Denver & S. F. Ry. Co., 17 Colo. 583, to constitute a valid common law dedication there must be an acceptance, either express or implied. Justice Elliott, speaking for the court in that case, said: “ To constitute a road a public highway at common law, there must be both a dedication and an acceptance, either express or implied. Unless otherwise provided by statute, a dedication without acceptance is, in law, merely an offer to dedicate; and such offer does not impose any burden nor confer any right upon the public authorities, unless the road is accepted by them as a highway.”

Until acceptance, therefore, the description of the land by Conley in the trust deed to Farwell, if deemed sufficient to show the animus dedieandi, was a mere offer, and did not constitute an effectual dedication. The court below found expressly “that the city of Pueblo, or the former town of Pueblo, has never, by any formal or informal act, accepted the land in controversy as a street.”

It is clear, therefore, that the subsequent conveyance of the land by Conley to plaintiff was a revocation of the offer to dedicate the same as a street, if such an offer on his part may be inferred from the description in the trust deed, in the absence of a plat showing a street covering the premises in dispute, there having been no acceptance by the appellee at the time of such conveyance. City of Eureka v. Crohgan, 81 Cal. 524; People v. Reed, 81 Cal. 70.

We think the doctrine announced in City of Denver v. Denver & S. F. Ry. Co., supra, is decisive of this case; and, upon the facts found, appellee has no right to use the land in controversy as a public street without making compensation to appellant therefor.

For the foregoing reasons, the judgment of the court below will be reversed, and the cause remanded, with instructions to enter judgment in accordance with this opinion.

Reversed.