Alley v. McMath, 18359

Decision Date09 November 1959
Docket NumberNo. 18359,18359
Citation346 P.2d 304,140 Colo. 600
PartiesNick ALLEY, Jr., Plaintiff in Error, v. James M. McMATH, also known as J. M. McMath, Defendant in Error.
CourtColorado Supreme Court

Walter J. Predovich, A. T. Stewart, Pueblo, for plaintiff in error.

French L. Taylor, Denver, David M. Ralston, Trinidad, for defendant in error.

MOORE, Justice.

Plaintiff in error, to whom we will refer as plaintiff, brought an action to compel the removal of a fence erected by defendant around real estate to which plaintiff claimed title. The land thus enclosed by such fence was that area lying within the outer perimeter of a reservoir at its high water mark. Defendant in error, hereinafter referred to as defendant, claimed ownership of the reservoir. The trial court entered judgment for defendant, and plaintiff is here on writ of error directed to that judgment.

The validity of plaintiff's title to the land depends upon a deed from The Dick Abstract and Investment Company to one H. W. Kilpatrick. This deed was executed December 31, 1945. After setting forth the legal description of the land conveyed, which admittedly included the area beneath the water in the reservoir, the deed contained the following:

'Excepting all reservations contained in Patents from the United States, also excepting any and all easements and right of way for roads, highways, railroads, canals, ditches and telephone lines, and subject to all oil, gas leases on record, and all oil, gas and mineral rights not owned by us. Together with all ditches and water rights thereunto belonging or in anywise appertaining thereto including Butte Valley Ditch No. 1, Priorities Nos. 1, 9 [140 Colo. 602] and 86; under the Read Decree and Priority No. 111 under the Killian Decree.'

Kilpatrick, the grantee in the above mentioned deed, conveyed to Kelley who in turn conveyed to plaintiff.

If the deed from the Investment Company to Kilpatrick is free from ambiguity then the judgment of the trial court should be reversed, and plaintiff should be granted the relief prayed for. The trial court concluded that the deed was ambiguous and heard parol evidence, and on the basis thereof dismissed plaintiff's action.

The deed is before this court and the question as to whether it is ambiguous is solely a question of law. We are, therefore, not bound by the finding of the trial court since no question of conflicting evidence or credibility of witnesses is...

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19 cases
  • Ouedraogo v. Downtown Denver Bus. Improvement Dist.
    • United States
    • U.S. District Court — District of Colorado
    • February 13, 2014
    ...Homes, Inc., 463 P.2d 463, 463 (1970). Parol evidence is only permissible when the intent of the parties is not clear. Alley v. McMath, 346 P.2d 304, 305 (Colo. 1959). Here, there is overwhelming parol evidence to support DDBID's contention and it all comes straight from the mouth of Mr. Ou......
  • Premier Bank v. Board of County Com'Rs, No. 08CA2384.
    • United States
    • Colorado Court of Appeals
    • June 11, 2009
    ...for abuse of discretion are subject to appellate review de novo when only questions of law are presented); Alley v. McMath, 140 Colo. 600, 602, 346 P.2d 304, 305 (1959) (when evidence consists solely of documents and the determinative question concerns the interpretation of those documents,......
  • Cheyenne Mountain School Dist. No. 12 v. Thompson
    • United States
    • Colorado Supreme Court
    • November 1, 1993
    ...Reviewing courts are not bound by a trial court's decision on the ambiguity of a contract, which is a question of law. Alley v. McMath, 140 Colo. 600, 346 P.2d 304 (1959). To ascertain whether certain provisions of a contract are ambiguous, "the language used therein must be examined and co......
  • Board of County Com'rs of Weld County v. Anderson
    • United States
    • Colorado Court of Appeals
    • April 30, 1974
    ...court is obligated to make an independent judgment on the merits. Van Diest v. Towle, 116 Colo. 204, 179 P.2d 984. See Alley v. McMath, 140 Colo. 600, 346 P.2d 304. Each of the parties claims title to the parcel from a common grantor, the Denver Pacific Railroad. 2 That railroad was granted......
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