Anaconda Min. Co. v. Town of Anaconda

• Decision Date: 02 May 1904
• Citation: 33 Colo. 70,80 P. 144
• Parties: ANACONDA MIN. CO. et al. v. TOWN OF ANACONDA.[*]
• Court: Colorado Supreme Court

80 P. 144

33 Colo. 70

ANACONDA MIN. CO. et al. v. TOWN OF ANACONDA.^[*]

Supreme Court of Colorado

May 2, 1904

Error to Teller County Court; A. S. Frost, Judge.

Petition by the Anaconda Mining Company and others for the disconnection of certain lands from the town of Anaconda. Judgment denying the petition, and petitioners bring error. Affirmed.

The following is the plat referred to in the opinion:

(Image Omitted)

Potter & McCarthy, for plaintiffs in error.

F. J Hangs and Temple & Crump, for defendant in error.

STEELE J.

The plaintiffs in error filed their petition in the county court of Teller county, alleging that at the time of the filing of the petition they were the owners of contiguous tracts of land, aggregating more than 20 acres, within the corporate limits of the town of Anaconda; that no part of such area had ever been platted into lots and blocks; that the town of Anaconda had not maintained streets, lights, and other public utilities through or adjoining said land for a period of three years; that all taxes and assessments of all kinds lawfully due upon said premises had been fully paid--and praying that the described territory be disconnected from the town of Anaconda. Upon the trial the defendants introduced a plat of the territory sought to be disconnected, and we have attached a copy thereof to this opinion.

The trial resulted in a judgment against the petitioners. The court found that the land described in the petition was owned by the petitioners; that the tracts of land were contiguous tracts, aggregating 23.505 acres in area, within the corporate limits of the town of Anaconda that all taxes and assessments of all kinds lawfully due upon the premises had been fully paid; that no part of the premises had been platted into lots and blocks as a part of the town of Anaconda, or an addition thereto; that the town had not maintained streets, lights, and other public utilities through or adjoining the land for a period of three years; that the said town had maintained for the period of more than six years an alley known as 'Paradise Alley,' which had been used as a public highway and thoroughfare across and over the north end of said tract. The court also found that only a very small portion of the land in question was upon or adjacent to the border of the corporate limits of the town. The petitioners come here by writ of error, and ask a reversal of the judgment.

We shall not consider the assignments of error which relate to the reception and exclusion of testimony, nor the assignments based upon the giving and refusing of instructions, because we are of opinion that the proof of petitioner did not entitle it to relief. We have held in the case of Edgewater v. Liebhardt (decided at this term) 76 P. 366, that the statute is mandatory, and that, when the facts required by the statute to be established have been established by competent proof, it becomes the duty of the court to disconnect the territory, without regard to its views concerning justice and equity.

Sections 1, 2, and 3 of the statute under which the proceedings were brought are as follows:

'Section 1. That whenever a tract or contiguous tracts of land aggregating twenty (20) or more acres in area are embraced within the corporate limits of any city or town, and being upon or contiguous to the border thereof, the owner or owners of said tract or tracts of land may petition the county court of the county in which such land is situated to have same disconnected from said city or town.

'Sec. 2. Such petition shall show to the court that such tract or tracts contain in the aggregate an area of twenty or more acres, upon or adjacent to the border of said city or town; and that petitioners are the owners thereof, describing the land; that no part of such area has been duly platted into lots and blocks as a part of or addition to said city or town; that all taxes or assessments lawfully due upon said land up to the time of the presentation of said petition are fully paid.

'Sec. 3. Upon the filing of such petition in the county court, the judge thereof shall set a time for hearing, not less than forty (40) nor more than sixty (60) days thereafter; and it shall be the duty of the clerk of said court to cause a copy of such petition, and a notice of the date of the time set for such hearing, to be served upon the mayor of the city or town; and same shall be served at least thirty days prior to the hearing of such petition by the court. And upon the hearing and proof of the facts set forth

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