Bolser v. Board of Commissioners for County of Gilpin, Court of Appeals No. 03CA0178 (CO 8/12/2004), Court of Appeals No. 03CA0178.

• Decision Date: 12 August 2004
• Docket Number: Court of Appeals No. 03CA0178.
• Parties: Clark M. Bolser, in his capacity as trustee for Eugene Mines, Inc., a dissolved Colorado corporation, and Eugene Mines, Inc., Plaintiffs-Appellants, v. Board of Commissioners for the County of Gilpin, State of Colorado, Anchor Coin, Inc., CCSC/Black Hawk, Inc., Colorado Department of Transportation, and Burton Materials, Inc., Defendants-Appellees.
• Court: Colorado Supreme Court

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Clark M. Bolser, in his capacity as trustee for Eugene Mines, Inc., a dissolved Colorado corporation, and Eugene Mines, Inc., Plaintiffs-Appellants,
v.
Board of Commissioners for the County of Gilpin, State of Colorado, Anchor Coin, Inc., CCSC/Black Hawk, Inc., Colorado Department of Transportation, and Burton Materials, Inc., Defendants-Appellees. Court of Appeals No. 03CA0178. Court of Appeals of Colorado, Division IV. August 12, 2004.

Gilpin County District Court No. 99CV61, Honorable Tom Woodford, Judge.

In this action to quiet title to property subject to right-of-way easements, plaintiffs, Eugene Mines, Inc. and Clark M. Bolser, as its trustee (together EMI), appeal the trial court's judgment in favor of defendants, the Board of County Commissioners for Gilpin County; Anchor Coin, Inc.; CCSC/ Black Hawk, Inc.; and the Colorado Department of Transportation. We affirm.

JUDGMENT AFFIRMED.

Trauernicht, Evans & Kneisel, LLC, Ted W. Trauernicht, Jan Kneisel, Denver, Colorado, for Plaintiffs-Appellants.

Petrock & Fendel, PC, James J. Petrock, William L. Downey, Denver, Colorado, for Defendants-Appellees Board of Commissioners for the County of Gilpin, State of Colorado, Anchor Coin, Inc. and CCSC/Black Hawk, Inc.

Ken Salazar, Attorney General, Jennifer Lyn Mele, Assistant Attorney General, Denver, Colorado, for Defendant-Appellee Colorado Department of Transportation.

Opinion by JUDGE LOEB.

The parties proceeded to trial on stipulated facts and exhibits showing the following.

EMI owned a fee simple interest in property in Gilpin County. In 1938 and 1939, EMI deeded rights-of-way over some of the property to Gilpin County and the State of Colorado for construction of a highway. The 1938 and 1939 right-of-way deeds granted to Gilpin County an easement for highway purposes and granted to the State of Colorado the right to adopt and improve the easement as a state highway.

EMI became delinquent on its real property taxes, and, in 1949, a treasurer's deed conveyed EMI's Gilpin County property to the county.

The parties stipulated that the total acres encumbered by the easements granted in the 1938 and 1939 right-of-way deeds were fully accounted for in the 1949 treasurer's deed and were referenced in the treasurer's deed by the language contained in one paragraph, "less [number of] acres deeded to County of Gilpin for Highway Purposes as described in Deed recorded in . . . Gilpin County Records," and similar language in four other paragraphs. The land referenced in those paragraphs thus matched the land described in the 1938 and 1939 right-of-way deeds. The treasurer's deed also conveyed to the county EMI's remaining interest in other Gilpin County property not burdened by the 1938 and 1939 right-of-way deeds and not at issue here.

Defendants Anchor Coin and CCSC/Black Hawk are subsequent transferees of the property conveyed to the county in the 1949 treasurer's deed.

EMI contends on appeal, as it did in the trial court, that the word "less" in the treasurer's deed means that it retained fee simple ownership of the acres described therein, subject only to the county's right to use those acres for highway purposes. The trial court disagreed, finding that the treasurer's deed conveyed a fee simple interest in the entirety of EMI's real property in Gilpin County, subject only to the easements granted in the 1938 and 1939 right-of-way deeds and that EMI did not retain any fee simple interest in the subject property. We agree with...