Board of County Com'rs of Cheyenne County v. Ritchey

• Decision Date: 05 May 1994
• Docket Number: No. 93CA0553,93CA0553
• Parties: BOARD OF COUNTY COMMISSIONERS OF CHEYENNE COUNTY, Colorado, Plaintiff-Appellee, v. Lloyd RITCHEY and Margaret E. Ritchey, Defendants-Appellants. . III
• Court: Colorado Court of Appeals

Page 298

888 P.2d 298

BOARD OF COUNTY COMMISSIONERS OF CHEYENNE COUNTY, Colorado, Plaintiff-Appellee, v. Lloyd RITCHEY and Margaret E. Ritchey, Defendants-Appellants.

No. 93CA0553.

Colorado Court of Appeals,

Div. III.

May 5, 1994.

Rehearing Denied June 30, 1994.

Certiorari Denied Feb. 13, 1995.

Shinn Lawyers, Carl M. Shinn, Wendy S. Shinn, Lamar, for plaintiff-appellee.

Gunnar E. Andersson, Colorado Springs, Lisa D. Hamilton-Fieldman, Denver, for defendants-appellants.

Opinion by Judge DAVIDSON.

In this action for removal of encroachments upon real property, defendants, Lloyd and Margaret E. Ritchey, appeal from the judgment of the trial court determining that plaintiff, Board of County Commissioners of Cheyenne County, Colorado (Cheyenne County), is the owner of a piece of land at the northern boundary of defendant's farm. We affirm.

The disputed strip of land is approximately 30 feet wide and a half-mile long and has been used as an unpaved road. Several years after acquiring the property, defendants hired a surveyor to locate the section line north of their farm. They then removed an old fence and built a new fence 30 feet north of the location of the old fence at approximately the location of the section line established by the survey.

Cheyenne County filed a complaint asserting ownership of the strip of land between the original location of the fence and the section line by virtue of a 1887 county resolution which had dedicated all public lands overlying section lines as county roads. In a related argument, Cheyenne County claimed ownership by adverse possession. Defendants counterclaimed to quiet title to the disputed strip on the basis of a railroad land grant given to Union Pacific Railroad Company (Union Pacific), their remote predecessor in interest, prior to the 1887 county dedication.

After a bench trial, the court found that Cheyenne County held title to the disputed strip of land because the patent to the railroad had not issued until after the 1887 dedication. The trial court further found that Cheyenne County also had established ownership by adverse possession. Defendants appeal both determinations. Although we conclude that Cheyenne County does not own the disputed strip of land by dedication as a county road, we agree with the trial court that this dedication served as a basis for a claim of right under the alternative theory of ownership by adverse possession.

I.

In order to determine if Cheyenne County has acquired title to the disputed strip of land by adverse possession, we must first examine defendants' claim to title by virtue of the railroad land grant to Union Pacific. See Vade v. Sickler, 118 Colo. 236, 195 P.2d 390 (1948); Trueblood v. Pierce, 116 Colo. 221, 179 P.2d 671 (1947). We hold that, pursuant to that grant, the land was taken out of the public domain prior to the county dedication.

A.

In April 1885, the Colorado General Assembly enacted legislation which provided that county commissioners were authorized to declare as a public highway any section or township line on the public domain pursuant to a grant by the federal government of right-of-way over public lands for that purpose. See Colo.Sess. Laws 1885 ch. 95, § 4 at 327; R.S. 2477 (1878) (43 U.S.C. § 932) (Repealed by Act of October 21, 1976, see 90 Stat. 2793, but providing the repeal would not be construed as terminating any right-of-way existing on October 21, 1976).

The trial court found that title did not pass to defendant's predecessors in interest until the patent to the railroad land grant issued in 1896. Accordingly, it determined the land was in the public domain in 1887 when it was dedicated as a public highway and thus, that the dedication of the section lines, being prior in time, established ownership in the county. We do not agree with this analysis.

Here, the county's dedication was ineffective because the railroad land was no longer in the public domain.

In the 1860s, Congress passed a series of acts designed to provide a source of funding for railroad construction throughout the western states and territories. See 12 Stat. ch. 120 (1862), 13 Stat. ch. 216 (1864), and 15 Stat. ch. 159 (1866) (Pacific Railroad Acts). The combined effect of the Pacific Railroad Acts was to grant to Union Pacific the odd numbered sections of land along its route at a rate of ten sections per mile of railway. These sections could then be sold, mortgaged, or timbered. The grant was to take effect as the railway line was located and the sections selected by the railway company. After completion of segments of the railway, the railway company was to be issued patents for the land from the United States government upon payment of certain survey costs.

Defendants' farm lies in one of the sections granted in this manner to Union Pacific through its predecessor, the Kansas Pacific Railway Company, when it located a part of its railway line through southeast Colorado. Union Pacific mortgaged the property on June 20, 1869. President McKinley signed, and the United States issued, a patent for the land on February 26, 1896, to the Union Pacific Railroad Company. The patent was then recorded in the records of Cheyenne County on November 27, 1896.

In 1887, the Board of County Commissioners for the County of Bent, which at that time included defendants' farm, adopted a resolution dedicating all section, township, and range lines on the public domain as public highways.

Defendants argue that the trial court erred by determining that the date of the issuance of the patent to the railroad was the date when the property was removed from public lands. We agree.

Public land, or land on the public domain, is land which is open to sale or other disposition under general laws. Any land to which any claims or rights of others have attached does not fall within the designation of public land. Bardon v. Northern Pacific R.R. Co., 145 U.S. 535, 12 S.Ct. 856, 36 L.Ed. 806 (1892). Accordingly, contrary to the trial court's conclusion, the date of the issuance of the patent is not necessarily the date it was withdrawn from the public domain.

Pursuant to the Pacific Railroad Acts, once the railroad had designated the route of the road, an area sufficiently extended to include the granted sections was reserved from sale. Missouri, Kansas & Texas Ry. Co. v. Kansas Pacific Ry. Co., 97 U.S. 491, 24 L.Ed. 1095 (1878). When the identification of the sections was complete so as to authorize the grantor to take possession, legal title to the granted land passed; an action for possession could be maintained by the company or its grantees even before the patent issued. Curtner v. United States, 149 U.S. 662, 13 S.Ct. 985, 37 L.Ed. 890 (1893); see also Deseret Salt Co. v. Tarpey, 142 U.S. 241, 12 S.Ct. 158, 35 L.Ed. 999 (1891) (transfer of lands pursuant to railroad acts was a transfer of a present interest, not a partial or limited interest, which attaches upon the location of the road and the selection of the sections).

Thus, the location of the granted lands depended on the establishment of the railroad's route; once that route was settled, the location of the granted lands became certain. Missouri, Kansas & Texas Ry. Co. v. Kansas Pacific Ry. Co., supra. Accordingly, the sections selected were removed from public lands upon the filing of the map of the railroad route. United States v. Union Pacific Ry. Co., 148 U.S. 562, 13 S.Ct. 724, 37 L.Ed. 560 (1893).

Moreover, one who has obtained a patent for land has a title which relates back to the first qualifying act which definitively located the boundaries of the claimed land so as to legitimately bar others from entry. Scott v. Buchanan, 64 Colo. 571, 174 P. 1123 (1918); see also Colo.Rev.Stat.1868, ch. LXXII, § 13 (the fact that title had not passed from the United States did not bar the grantee from maintaining an action for possession). Hence, a patent, when issued, relates back to the date of the inception of the rights of the patentee in the land. Benson Mining & Smelting Co. v. Alta Mining & Smelting Co., 145 U.S. 428, 12 S.Ct. 877, 36 L.Ed. 762 (1892).

A patent issued to a railroad company pursuant to the Pacific Railroad Acts relates back to the date of the initial right in the railway company; a delay in the issuance of the patent does not affect the railway company's rights in the interim. Stalker v. Oregon Short Line, R.R. Co., 225 U.S. 142, 32 S.Ct. 636, 56 L.Ed. 1027 (1912); United States v. Union Pacific Ry. Co., supra.

Additionally, a grant, such as one made pursuant to the Pacific Railroad Acts, functions as an appropriation which takes a tract of land out of the public domain; its validity and effect do not depend upon whether it is subject to cancellation for failure to fulfill some requirement of the grant. Bardon v. Northern Pacific R.R. Co., supra; see also Witherspoon v. Duncan, 71 U.S. (4 Wall.) 210, 18 L.Ed. 339 (1867) (once entry is made and the certificate of entry is delivered, the land ceases to be a part of the public domain).

Cheyenne County argues that, nonetheless, there was no evidence that the railroad complied with the necessary prerequisites to the issuance of a patent. Specifically, it points to the absence of evidence that any map of definite location was filed, the cost of surveying the land was paid, or a certificate of completion of the line was filed.

We agree that the federal acts require these conditions to be met before a patent can issue. See Ankeny v. Clark, 148 U.S. 345, 13 S.Ct. 617, 37 L.Ed. 475 (1893). However, the fact that a patent issued in 1896 is conclusive proof that all necessary conditions were, in fact, previously fulfilled. United States v. Maxwell Land-Grant, Co., 121 U.S. 325, 7 S.Ct. 1015, 30 L.Ed. 949 (1887).

Moreover, it was undisputed that the northern stretch of the railway was completed between 1869 and 1872, that the grants required that construction of the railroad be completed by 1876, and that the land was...