Buell v. Sears, Roebuck and Co.

• Citation: 205 F. Supp. 865
• Decision Date: 05 June 1962
• Docket Number: Civ. A. No. 7151.
• Parties: Temple Hoyne BUELL, also known as Temple H. Buell and T. H. Buell, Plaintiff, v. SEARS, ROEBUCK AND CO., a New York corporation, Defendant.
• Court: United States District Courts. 10th Circuit. United States District Court of Colorado

205 F. Supp. 865

Temple Hoyne BUELL, also known as Temple H. Buell and T. H. Buell, Plaintiff, v. SEARS, ROEBUCK AND CO., a New York corporation, Defendant.

Civ. A. No. 7151.

United States District Court D. Colorado.

June 5, 1962.

Akolt, Turnquist, Shepherd & Dick, Laurence W. DeMuth, Jr., Denver, Colo., for plaintiff.

Rothgerber, Appel & Powers, Denver, Colo., for defendant.

DOYLE, District Judge.

The action herein seeks to quiet title to a certain strip of real estate (a portion of a vacated street) which is described in the complaint as follows:

That portion of Coloden Moor Subdivision, more particularly described as the vacated North 20 feet of First avenue, lying South of and adjoining Plot A ½, Block 69, Harmans Subdivision, and lying South of and adjoining the West ½ of the vacated alley adjacent to said Plot.

The defendant also claims ownership. Plaintiff's claim in general is based upon the fact that on August 19, 1948, he dedicated this vacated portion of street together with the remainder of the unvacated street as a part of Coloden Moor Subdivision. Defendant's contention of ownership is predicated upon the fact that it owns the property immediately adjacent to the vacated strip and extending along the north line of the said strip. Defendant argues that the dedication vested the fee title to the controverted area in the City and County of Denver and that upon its vacation it vested by operation of law, in defendant.

Defendant raises other points: First, that the defendant has been in possession of the property ever since it was vacated and that the plaintiff has made no claim of ownership until this case was filed; secondly, that the plaintiff has formally recognized and ratified defendant's ownership, and thirdly, that plaintiff actually intended to convey this property to the defendant at the time that he conveyed a similar strip (located west of the controversial area) to defendant.

The facts are virtually undisputed. In 1925 plaintiff acquired a fee title to the northerly 802 feet of the Southwest Quarter (SW-¼) of Section 12, T. 4 S., Range 68 West of the Sixth P. M., and on August 19, 1948, (the date of the dedication) the strip in controversy constituted the extreme northerly boundary of the Southwest Quarter of Section Twelve. On August 19, 1948, this entire area was platted by plaintiff and the twenty-foot strip in controversy was part of First Avenue as platted and was within the Coloden Moor Subdivision. The plat was accepted by the City and County of Denver by Ordinance No. 160, Series of 1948. By Ordinance No. 89, Series of 1954, approved May 4, 1954, the City of Denver vacated the strip in question describing it as it is described above. The plaintiff continues to own the property immediately south of First Avenue. His property is immediately adjacent to the unvacated portion of First Avenue. The rough sketch set forth below illustrates positions of the vacated strip in relation to the property of the parties:

It is undisputed that defendant took possession of the subject strip of land soon after it was vacated and used it as an employees' parking lot; furthermore, plaintiff was aware of this fact since his firm was the architect in charge of the development and his firm, at the request of defendant, designed the parking lot and specifically ordered it to be paved and graded. The paving order was dated September 7, 1954, and the cost to defendant was shown to have been $5,795.00. Furthermore, an agreement (dealing with another subject) executed March 28, 1955, inferentially at least, recognized defendant's ownership of the disputed area. The extent of this recognition is questioned by plaintiff who argues that this agreement was not referring to the particular strip in question but was referring to a strip west of this one which had in fact been conveyed by plaintiff to defendant when defendant purchased the property west of Detroit Street from plaintiff. Furthermore, the legal consequence of this recognition is doubtful and it is mentioned only because it received some considerable emphasis at the trial. The 1948 dedication is in pertinent part as follows:

"KNOW ALL MEN BY THESE PRESENTS that Temple Hoyne Buell * * * has subdivided (the described property) * * * under the name and style of Coloden Moor Subdivision, and by these presents does grant to the City and County of Denver for the perpetual use of the public, the right of way in, through, over and across the streets and avenue as shown on this map."

There are two significant Colorado statutory provisions: The primary one is that which deals with the estate which is granted to a city or town when streets are platted and dedicated. This is 139-1-7, C.R.S. 1953, and it provides:

"All avenues, streets, alleys, parks and other places designated or described as for public use on the map or plat of any city or town, or of any addition made to such city or town, shall be deemed to be public property, and the fee thereof be vested in such city or town."

The other significant provision sets forth the governing rules as to vesting of title upon vacation. Its provisions are as follows:

"120-1-12. Vesting of title upon vacation. — Whenever any roadway has been designated on the plat of any tract of land, or has been conveyed to or acquired by a county or incorporated town or city, or by the state or by any of its political subdivisions, for use as a roadway, and shall thereafter be vacated, title to the lands included within such roadway or so much thereof as may be vacated shall vest, subject to the same encumbrances, liens, limitations, restrictions and estates as the land to which it accrues, as follows:

"(1) In the event that a roadway which constitutes the exterior boundary of a subdivision or other tract of land is vacated, title to said roadway shall vest in the owners of the land abutting the vacated roadway to the same extent that the land included within the roadway, at the time the roadway was acquired for public use, was a part of the subdivided land or was a part of the adjacent land.

"(2) In the event that less than the entire width of a roadway is vacated, title to the vacated portion shall vest in the owners of the land abutting such vacated portion.

"(3) In the event that a roadway bounded by straight lines is vacated, title to the vacated roadway shall vest in the owners of the abutting land, each abutting owner taking to the center of the roadway, except as provided in subsections (1) and (2) of this section. In the event that the boundary lines of abutting lands do not intersect said roadway at a right angle, the land included within such roadway shall vest as provided in subsection (4) of this section.

"(4) In all instances not specifically provided for, title to the vacated roadway shall vest in the owners of the abutting land, each abutting owner taking that portion of the vacated roadway to which his land, or any part thereof, is nearest in proximity.

"(5) No portion of a roadway upon vacation shall accrue to an abutting roadway."

Plaintiff's position is that the interest which the dedication granted to the City and County of Denver was, because of the special terms of the dedication, an easement only; thus, the plaintiff retained the fee and upon extinguishment of the easement by vacation, plaintiff's fee title again became absolute. Plaintiff further argues that under the common law the dedication and vacation of a street has the same result as the granting and release of a private easement; that the street "reverts" to the owner of the fee. He questions whether the Colorado statute on vacation applies, but contends that if it does apply the result is the same as would be produced by common law vacation; that since he contributed all of the land including the vacated portion, title becomes fully vested in him.

Defendant's contention is that the dedication vested a fee title in the City and County of Denver and by doing so the plaintiff was divested of all interest in this particular property and that upon the vacation defendant as an owner of the land which immediately abuts the vacated part, was vested with a fee title by operation of law (that is, the statute, 120-1-12, supra).

Thus, the controversy is between one who is the owner of the property adjacent to the vacated highway on the north, and one whose property is not adjacent to the vacated strip at all — whose property is immediately adjacent to the unvacated highway. The facts present a unique problem. Normally, the problem arises where the lands on either side of the vacated highway have been conveyed by a common grantor. Here defendant acquired its adjacent land from a third person and thus its grantor made no original contribution to the highway. Here plaintiff contributed all of the land which became First Avenue but the vacated portion is adjacent (on the South) to the remainder of First Avenue so that plaintiff's problem is that he is not an abutting landowner. The underlying question is, therefore, whether the pertinent Colorado dedication and vacation statutes control this somewhat unique fact situation.

I.

The first issue is whether the dedication vested a fee title in the City and County of Denver and divested the plaintiff of his interest in the surface of the strip of land in dispute.

The statute itself, Section 139-1-7 declares that the property so dedicated shall be deemed to be public property, and "the fee thereof be vested in such city or town." Thus, considering the terms of the statute alone there appears little, if any, doubt as to the legal consequence of a dedication.

In some of the Colorado cases the Court has been somewhat reluctant to call the term "fee" a fee, even though it has usually treated it as such. Thus, in Olin v. Denver & R. G. R. Co., 25 Colo. 177, 53 P. 454, the Court spoke of the platted tract being held in trust for the uses expressed therein (for the benefit of the public and adjoining...