Mollandin v. Union Pac. Ry. Co.

• Decision Date: 01 January 1882
• Citation: 14 F. 394
• Parties: MOLLANDIN v. UNION PAC. RY. CO. [1]
• Court: U.S. District Court — District of Colorado

14 F. 394

MOLLANDIN v. UNION PAC. RY. CO. ^[1]

United States Circuit Court, D. Colorado.

October Term, 1882

S. E Browne, for plaintiff.

Willard Teller, for defendant.

Plaintiff set up title to lots 1 to 7, inclusive, in block 1, in Hoyt &amp Robinson's addition to the city of Denver, fronting, 216 feet on Wewatta street, on which he had erected a hotel and several dwelling-houses. After the buildings were erected and in September, 1881, defendant laid a railroad track through Wewatta street in front of plaintiff's property about 18 1/2 feet from the sidewalk. The track is above the level of the street, and in itself a considerable obstruction to loaded wagons, and light wagons could not pass over it easily in front of plaintiff's property. But the crossings on either side at Nineteenth and Twentieth streets are convenient for all vehicles. Two other tracks were laid in Wewatta street, on the opposite side from the plaintiff's property, by other companies which were not parties to this action. Plaintiff alleged that by the track laid by defendant, and the use made of it, his 'facilities for ingress to and from his said hotel and dwelling-houses and lots has been interrupted and cut off, and his said hotel and dwelling-houses have been exposed to damage by fire, and the rental value of his property greatly diminished, and he was subjected to great inconvenience, to his damage in the sum of $15,000.'

The answer denies most of the allegations of the complaint, and alleges that the Colorado Central Railroad Company, in May 1871, owned a railroad extending from Golden to Denver and elsewhere in the state of Colorado; that the city of Denver then, and ever since that time, owned the said Wewatta street by title in fee, and that on the twenty-fifth day of May, 1871, the city, by ordinance, granted to said Colorado Central the right of way for its track in and through the said Wewatta street. The ordinance was set out in the answer in full, and appeared to be of the scope and effect as stated. It was further alleged that on the first day of March, 1879, the said Colorado Central Railroad Company made and executed to the defendant a lease of its lines, tracks, rolling stock, and property, and all its franchises, whereby the defendant acquired a right to build its said road in the said Wewatta street.

Plaintiff denied that the fee to the said Wewatta street was in the city, and claimed that the dedication of the street to public use by Hoyt & Robinson was an easement only, reserving the fee to the owners of abutting lots. It was...