Board of County Com'rs of Delta County v. Sherrill

• Decision Date: 10 December 1987
• Docket Number: No. 86CA0735,86CA0735
• Citation: 757 P.2d 1085
• Parties: BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF DELTA, State of Colorado, Involuntary Plaintiff-Appellant, v. Clint SHERRILL and Jeanne L. Sherrill, Plaintiffs, v. Dale R. CERNUSAK, Katherine W. Cernusak, and Margaret S. Wellman, Defendants-Appellees. . III
• Court: Colorado Court of Appeals

Page 1085

757 P.2d 1085

BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF DELTA, State

of Colorado, Involuntary Plaintiff-Appellant, v. Clint SHERRILL and Jeanne L. Sherrill, Plaintiffs, v. Dale R. CERNUSAK, Katherine W. Cernusak, and Margaret S.

Wellman, Defendants-Appellees.

No. 86CA0735.

Colorado Court of Appeals,

Div. III.

Dec. 10, 1987.

Rehearing Denied Jan. 14, 1988.

Certiorari Denied July 5, 1988.

Brooks & Brooks, John A. Brooks, Gary L. Swanson, Montrose, for involuntary plaintiff-appellant.

Brown and Brown, James D. Brown, Delta, for defendants-appellees.

CRISWELL, Judge.

The County Commissioners of Delta County (Commissioners) appeal from a summary judgment entered by the district court, quieting title in defendants to a certain claimed roadway. Because we conclude that the land is a part of a properly dedicated public right-of-way, we reverse.

In July 1977, defendants, proceeding in accordance with § 30-28-133, C.R.S. (1986 Repl.Vol. 12A), presented to the Commissioners a subdivision plat for "Brookdale Subdivision." The plat's description of the land being subdivided noted that the subdivision contained a total of 25.87 acres; that 21.41 acres were "contained in lots" on the plat; and that "4.46 acres are contained in County Road right-of-way." The total acreage of the plat's ten lots is substantially the figure of 21.41 acres.

Outside the boundaries of these ten lots were three additional areas. One of the areas that is not contained within any of the ten lots is a strip that, except at one location, is uniformly 60 feet in width. That strip commences at the southern boundary of the subdivision and continues to its northern boundary. Near its center it forms a larger circular shape. South of this circular area the strip bears the name "Brook Lane"; north of the circular area the words "future road" appear. Except for this difference in designation, the area appears to consist of one, continuous, roadway.

While the plat does not indicate the acreage contained within any of the areas outside the lots (except for providing the various dimensions of each), these areas collectively contain the 4.46 acres referred to as "County Road right-of-way" in the description of the land being subdivided. No portion of any of these areas is contained within the boundaries of any of the ten lots.

The plat contains a notarized statement by defendants that "the public rights-of-way as shown on the plat are hereby dedicated for public use for road and rights-of-way purposes in perpetuity." It also contains an assurance by them that all expenses for necessary street improvements will be financed by them and that, except for ordinary road maintenance after completion and acceptance of the roads by the Commissioners, no demands with respect to such expenses will be made upon the county.

Finally, by the signature of the chairman of the Commissioners, it is indicated that the plat was "accepted" by them. It was, thereafter, filed of record with the county clerk and recorder on July 22, 1977.

The area in question in this case is that part of the north-south strip that lies north of the circular area and is labelled "future road." The trial court held that the plat failed to demonstrate a clear, unequivocal intention on behalf of defendants to dedicate this area for public use and that, in any event, there had been no acceptance by the county of any such dedication. In our view, the trial court erred in reaching both conclusions.

I

While § 30-28-133, C.R.S. (1986 Repl.Vol. 12A) requires a county to adopt subdivision regulations and to require the preparation and presentation of a subdivision plat before land is developed, that statute provides no specific procedures for the dedication of streets or roadways. Unlike the statute that is applicable to cities and towns, see § 31-23-107, C.R.S. (1986 Repl.Vol. 12B), there is no specific provision that a street designated on a county-approved plat becomes public property. Thus, the question whether the property here was properly dedicated as a public street depends upon application of Colorado's common law.

Under common law, dedication of a public way is established by demonstrating that the property owner unequivocally intended to make the dedication and that the dedication was accepted by the governmental authority. City of Northglenn v. City of Thornton, 193 Colo. 536, 569 P.2d 319 (1977).

Here, the trial court determined that defendants did not intend to dedicate land in question and that the Commissioners failed to accept the purported dedication. However, since this decision was based solely upon documents in the record, it is not binding on review. Atchison, Topeka & Santa Fe Ry. Co. v. North Colorado Springs Land & Improvement Co., 659 P.2d 702 (Colo.App.1982).

II

Defendants presented no extrinsic evidence to show their intent in preparing and presenting the plat. Thus, the trial court's conclusion that defendants did not demonstrate an unequivocal intent to dedicate the strip of land in question was based solely on the contents of the plat itself. Its conclusion emphasized two factors. First, it noted that the road was not needed to provide access to any of the ten lots, since each lot abutted either upon the circular area or upon the strip of land south of the circular area which defendants admit is a dedicated street. Second, it construed the term "future road" as a reservation of this strip...