Aspen-Western Corp. v. Board of County Com'rs of Pitkin County

• Citation: 661 P.2d 1175
• Decision Date: 03 June 1982
• Docket Number: ASPEN-WESTERN,No. 81CA1140,81CA1140
• Parties: CORPORATION, a Colorado corporation, Plaintiff-Appellant, v. The BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, Colorado, Defendant-Appellee, William L. Marple, Mary A. Marple, Josephine A. Young, David M. Hyman, Bela M. Hughes, Stephen W. Keene, George Clark, Charles A. Hallam, as the last duly constituted board of directors of the Smuggler Mining Company, a corporation organized under the laws of the State of Colorado, as trustees for the stockholders and creditors of said corporation, Richard W. Stewart, as public trustee of the County of Pitkin, State of Colorado, his predecessors and successors, for the stockholders and creditors of the Smuggler Mining Company, a corporation organized under the laws of the State of Colorado, if the last acting director thereof is now deceased, and All Unknown Persons Who Claim Any Interest in Subject Matter of This Action, Defendants. . III
• Court: Court of Appeals of Colorado

Page 1175

661 P.2d 1175

ASPEN-WESTERN CORPORATION, a Colorado corporation, Plaintiff-Appellant, v. The BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, Colorado, Defendant-Appellee, William L. Marple, Mary A. Marple, Josephine A. Young, David

M. Hyman, Bela M. Hughes, Stephen W. Keene, George Clark,

Charles A. Hallam, as the last duly constituted board of

directors of the Smuggler Mining Company, a corporation

organized under the laws of the State of Colorado, as

trustees for the stockholders and creditors of said

corporation, Richard W. Stewart, as public trustee of the

County of Pitkin, State of Colorado, his predecessors and

successors, for the stockholders and creditors of the

Smuggler Mining Company, a corporation organized under the

laws of the State of Colorado, if the last acting director

thereof is now deceased, and All Unknown Persons Who Claim

Any Interest in Subject Matter of This Action, Defendants.

No. 81CA1140.

Colorado Court of Appeals,

Div. III.

June 3, 1982.

Rehearing Denied July 8, 1982.

Certiorari Denied April 18, 1983.

Gary A. Wright, Aspen, for plaintiff-appellant.

Sandra Stuller, Aspen, for defendants-appellees.

KIRSHBAUM, Judge.

Plaintiff, Aspen-Western Corporation, (Aspen-Western) appeals the trial court's order granting the summary judgment motion of defendant, the Board of County Commissioners of Pitkin County (the Board). We affirm in part and reverse in part.

The record reveals the following relevant facts. In August 1978, Aspen-Western initiated this quiet title action pursuant to C.R.C.P. 105, alleging ownership of certain real property described as "Silver Brick Lode, U.S.M.S, 3952, excepting therefrom that portion lying within Lone Pine Lode, U.S.M.S., No. 1910, County of Pitkin, State of Colorado." The Board counterclaimed, alleging ownership of a 2/3 interest in the subject property by reason of a recorded treasurer's deed executed and delivered on July 19, 1949.

Aspen-Western's complaint alleged that it was "the owner and in possession of" the subject property. In an answer to an interrogatory propounded by the Board, Aspen-Western averred that "Aspen-Western Corporation has occupied the premises since July 5, 1977 ...." The Board's answer denied that Aspen-Western owned or possessed the property. At no time has the Board affirmatively alleged possession of the subject property.

In early 1979, the Board filed a motion for summary judgment. It argued, inter alia, that the statute of limitations codified at § 39-12-101, C.R.S.1973, banned Aspen-Western's suit. ¹ Aspen-Western also filed a motion for partial summary judgment, arguing that the statute of limitations was inapplicable and that the 1949 treasurer's deed was void on its face.

Ruling on the parties' cross-motions for summary judgment, the trial court concluded that the treasurer's deed was not void on its face; that Aspen-Western's action against the Board was barred by § 39-12-101, C.R.S.1973; and that an undivided 2/3 interest in the subject property belonged to the Board. Aspen-Western subsequently amended its complaint to include a request for partition of the property between Aspen-Western and the Board.

In early 1980, Aspen-Western filed a motion for summary judgment as to its undivided 1/3 interest in the subject property. The trial court denied the motion and entered default judgment against all remaining defendants. In February 1981, Aspen-Western renewed the motion, and the trial court then quieted title to an undivided 1/3 interest in the subject property to Aspen-Western. At Aspen-Western's request, the trial court entered an order of final judgment pursuant to C.R.C.P. 54 respecting the dispute between Aspen-Western and the Board.

I. ACTUAL POSSESSION

Aspen-Western first asserts error in the trial court's conclusion that § 39-12-101, C.R.S.1973, a five-year statute of limitations, bars its claim against the board. Aspen-Western contends in its appellate brief that the Board was not in possession of the property when the Rule 105 proceeding was commenced.

To qualify for the protection afforded by this five-year statute of limitations in a quiet title action, the holder of a tax deed must demonstrate actual possession of the property at the time the action is commenced. Welsh v. Levy, 200 Colo. 36, 612 P.2d 80 (1980), aff'g Levy v. Welsh, 44 Colo.App. 360, 612 P.2d 1135 (1978).

Summary judgment may not be granted if disputes of material fact remain unresolved. Abrahamsen v. Mountain States Telephone and Telegraph Co., 177 Colo. 422, 494 P.2d 1287 (1972). Preliminarily, we note that the pleadings and other portions of the record establish that a question concerning actual possession was raised in the trial court.

The record here reveals that factual controversy still exists regarding whether the Board was in actual possession of the subject property at the commencement of the lawsuit. Aspen-Western has alleged and averred possession and occupancy. The Board has denied such allegation, but has made no affirmative allegation or showing that it had actual possession of the property at the commencement of this action. Because this question of actual possession remains unresolved at the trial level, the trial court erred in granting summary judgment.

II. TAX DEED VALIDITY

Aspen-Western asserts that the treasurer's deed issued to the Board is void on its face because the property description is ambiguous. In particular, Aspen-Western argues that the property description--" 2/3-Silver Brick Lode---------survey number-3952 Roaring Fork District"--does not establish whether an unidentified 2/3 area of a larger tract or an undivided 2/3 interest in the whole was conveyed to the Board. Because this issue will arise again in the determination of the applicability of § 39-12-101, C.R.S.1973, we address it here.

When required to construe provisions of a deed, a court must ascertain and give effect to the intention of the parties, preferably from a consideration of the deed itself. Percifield v. Rosa, 122 Colo. 167, 220 P.2d 546 (1950). A deed that admits of two constructions will not be construed in a manner that renders it a nullity as to any of the parties, if, by any reasonable construction, such result can be avoided. Million v....