Board of Com'rs of Jefferson County v. Warneke

Decision Date25 March 1929
Docket Number12073.
Citation276 P. 671,85 Colo. 388
CourtColorado Supreme Court
PartiesBOARD OF COM'RS OF JEFFERSON COUNTY (LAKEWOOD GRANGE NO. 172, Intervener) v. WARNEKE.

Error to District Court, Jefferson County; S.W. Johnson, Judge.

Suit by Anna C. Warneke against the Board of County Commissioners of the County of Jefferson to restrain the Commissioners from opening, laying out, and establishing a road over and across lands claimed by plaintiff. Lakewood Grange No. 172, an association, intervened. Judgment for plaintiff, and defendant and intervener bring error.

Affirmed.

John C. Vivian, of Denver, for plaintiff in error.

Martin C. Molholm and Clyde Campbell, both of Denver, for intervener.

J. E McCall, of Golden, for defendant in error.

ALTER J.

Anna C Warneke, defendant in error, hereinafter referred to as plaintiff, commenced an action in the district court to restrain the board of county commissioners of the county of Jefferson, plaintiff in error, hereinafter referred to as defendant, from opening, laying out, and establishing a road over and across lands claimed by the plaintiff. Lakewood Grange No. 172, an association, upon petition, was granted leave to intervene. Trial was to the court, and its judgment was entered for the plaintiff, to review which judgment, the defendant and intervener prosecute this writ of error.

The evidence, in which there was practically no dispute discloses the following facts: In 1890, Charles C. Welch and associates were the owners of a certain tract of land in Jefferson county, and on August 21st of that year caused the same to be platted, and the plat thereof to be recorded in the office of the county clerk and recorder of Jefferson county. The tract, thus platted, was called Lakewood, and was divided into lots and blocks, avenues, streets, and alleys. There are 48 lots in each block, and 96 blocks in the tract. The streets upon said plat or map are 60 feet in width. Block 96 lies in the extreme northwest corner of the plat, and directly to its south, separated only by a street 60 feet in width, lies the property of the plaintiff.

The plaintiff acquired title to the north half of block 95 in 1903, and immediately had the land acquired surveyed, and her lines established. She erected buildings, planted shrubs, lawn, and trees on, took possession of, and fenced 30 feet of the street immediately to the north of her property. She remained in quiet and peaceable possession thereof until August, 1927, when the defendant threatened to tear down her buildings, destroy her shrubs, lawn, trees, and fences, and open a road 60 feet in width between blocks 96 and 95.

At the time the plat was filed with the county clerk and recorder, it contained the following, which is characterized by the parties to this action as a dedication of 'the avenues, streets and alleys': 'Know all men by these presents; that we, Charles C. Welch, William A. H. Loveland and Miranda Loveland, all of the County of Jefferson and State of Colorado, have laid out and platted the parcels thus shown on this plat a map, to-wit: * * * Under the name and style of Lakewood, and do, by these presents, grant to the public uses all streets, avenues and alleys as shown and designated hereon. * * *.'

In June, 1927, certain persons residing in the vicinity of plaintiff's lands, petitioned the defendant to open and establish the 60-foot strip of land between blocks 95 and 96 as a road, and this the defendant will do unless restrained by order of court. The evidence discloses that the opening of the road will greatly depreciate the value of plaintiff's premises for residence purposes.

The defendant and intervener assert in their briefs that 'Lakewood, where the said street is sought to be opened, is and has been for many years a village. It is not contiguous, nor is it an addition to any city or town. The plat was made and filed as provided by statute and is in every way a statutory dedication.'

We understand counsel for the defendant and intervener to be committed to the position that, when Welch and associates made the map or plat, and caused the same to be filed in the office of the county clerk and recorder of Jefferson county, that that constituted a statutory dedication. Counsel rely for their entire support for this position upon sections 1 to 8, inclusive, of article 11, c. 84, of the Revised Statutes of Colorado 1868, which are found in sections 9109-9116, C. L. 1921. It is conceded that the map or plat was filed in accordance with the provisions of that act, and, if that act was in force in 1890, the date of the filing of the map or plat, then the title to the streets and alleys delineated upon it became the property of the county, and this constituted a statutory dedication. Counsel for the plaintiff, however, assert that sections 1 to 8, inclusive, art. 11, c. 84, of the Revised Statutes of Colorado 1868, were repealed by section 2745, General Laws, Colorado, 1877, and also concede that, unless the effect of section 2745 was to repeal the sections mentioned, the plaintiff cannot prevail. Section 2745 is as follows:

'All general laws providing for the organization and government of incorporated cities and towns in the state of Colorado are hereby repealed; provided, that the existence of cities and towns heretofore incorporated within the state, which shall choose to retain their present organization shall not be affected, nor the power or duties thereof in any manner changed or abridged, by any provisions of this act.'

In City of Leadville v. Coronado M. Co., 29 Colo. 17, 23, 24, 67 P. 289, 290, where the court had under consideration the effect of section 2745, supra, it is said:

'For a proper discussion of the questions involved, it is necessary at the outset to determine whether or not sections one and two of article eleven of chapter 84 of the Revised Statutes (R. S. '68, p. 618) were repealed by the act of 1877. We are of opinion that the act of 1877 (G. L. '77, p. 876, 2 Mills Ann. Stat. § 4373) expressly repeals the article of the Revised Statutes referred to. An inspection of the statutes shows that section 2648 down to the first proviso is, in substance, a re-enactment of section twelve of article eight of said chapter 84, and that the first proviso contains the requirements that such plat shall not be filed for record until approved by three-fourths of the members elected to the city council, and that it shall show the topography of the territory. This proviso also reenacts, in substance, section six of said article eleven, repealed in 1870. The subject embraced by section five of said article eleven appears in the General Laws as section 2547. The general repealing clause of the act of 1877 is as follows: 'All general laws providing for the organization and government of incorporated cities and towns in the state of Colorado are hereby repealed.' Sections one and two of article eleven of chapter 84, which are in controversy, are sections concerning the organization of cities and towns as well as the annexation of additions thereto. They provide that whenever a city, town, or village, or any addition to a city, town, or village, shall be laid out, the owner or proprietor shall cause a plat to be filed, what that plat shall contain, and the manner of executing and recording it. By reference to section one of article one of chapter 84, and section 2642 of the General Laws, it will be seen that the law of 1877 requires that when the inhabitants of any territory desire to be incorporated, they shall file with their petition 'an accurate map of the territory sought to be incorporated,' and that the only substantial change made in section one of article one of chapter 84 is concerning the filing of the map or plat. The act of 1877 appears to be a comprehensive act upon the subject of municipal corporations; it appears to cover the whole subject-matter, and plainly shows an unmistakable intention on the part of the legislature to make the act of 1877 a substitute
...

To continue reading

Request your trial
11 cases
  • High Lonesome Ranch, LLC v. Bd. of Cnty. Comm'rs for the Cnty. of Garfield, Civil Action No. 17-cv-1260-RBJ-GPG
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • December 22, 2020
    ..."must be made by the proper authorities within a reasonable time, or the right to accept may be lost." Bd. of Comm'rs of Jefferson Cty. v. Warneke , 85 Colo. 388, 276 P. 671, 674 (1929).2. Analysis Here the county contends that there is "implied dedication arising from continuous public pas......
  • Outlaw v. Moise, 16642
    • United States
    • South Carolina Supreme Court
    • June 26, 1952
    ...of Munroe, 24k Mass. 474, 13. N.E. 828; Brewer v. Claypool, 223 Iowa 1235, 275 N.W. 34; Board of Com'rs of Jefferson County (Lakewood Grange No. 172, Intervener) v. Warneke, 85 Colo. 388, 276 P. 671; Pulcifer v. Bishop, 246 Mich. 579, 225 N.W. 3; Rudolph v. Glendale Improvement Co., 103 W.V......
  • Watson v. City of Albuquerque
    • United States
    • New Mexico Supreme Court
    • July 18, 1966
    ...Hand v. Rhodes, 1952, 125 Colo. 508, 245 P.2d 292; Hunt v. Brewer, 1939, 104 Colo. 375, 91 P.2d 485; Board of Comm'rs of Jefferson County v. Warneke, 1929, 85 Colo. 388, 276 P. 671; Town of Springfield v. Newton, 1947, 115 Vt. 39, 50 A.2d 605; compare City of Carlsbad v. Neal, 1952, 56 N.M.......
  • City of Lakewood v. Mavromatis, 90SC67
    • United States
    • Colorado Supreme Court
    • September 16, 1991
    ...of public record, insulated dedication from collateral attack more than seventy years later). Cf. Board of County Comm'rs v. Warneke, 85 Colo. 388, 394, 276 P. 671, 673 (1929) (incomplete or defective statutory dedications will often be upheld as common law dedications). 18 Indeed, we have ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT