Brinker v. Union Pac., D. & G. Ry. Co.

• Decision Date: 14 November 1898
• Citation: 55 P. 207,11 Colo.App. 166
• Parties: BRINKER et al. v. UNION PAC., D. & G. RY. CO.
• Court: Colorado Court of Appeals

55 P. 207

11 Colo.App. 166

BRINKER et al. v. UNION PAC., D. & G. RY. CO.

Court of Appeals of Colorado

November 14, 1898

Error to district court, El Paso county.

Ejectment by Betty F. Brinker and others against the Union Pacific Denver & Gulf Railway Company. From a judgment in favor of defendant, plaintiffs bring error. Reversed.

W.C Kingsley, for plaintiffs in error.

Brooks & Armit, Henry W. Hobson, and E.E. Whitted, for defendant in error.

BISSELL J.

The general rule compels a purchaser at a tax sale, who relies on the statutes of limitation, to bring himself clearly within their provisions. The original source of title to the land involved was Samuel T. Thompson, who was the patentee from the government by grant in November 1875. Two years later he conveyed to James H. Lester, who in 1884 transferred to Mary Agnes Lester, who was the immediate grantor, under the name of Field, and who granted to the Brinkers, who were the plaintiffs and appellants. The deed from James H. Lester to Mary Agnes was indefinite in its description; stating that it was of a certain tract of land in El Paso county, lying about eight miles east of Colorado Springs, which land had been conveyed to Lester by Thompson by deed, to the record of which deed reference was made for the purposes of description. This deed is attacked by the appellee because of the uncertainty of the description, though we find that on the first trial of this case (it being an action in ejectment, and twice tried, under the statute) the defendant admitted that the land described in the deed from J.H. Lester to Mary Agnes was the same land described in the deed from Thompson to Lester. The title stood in Lester up to the time of the conveyance referred to, but he failed to pay the taxes; and on the 8th of July, 1878, the property was sold by the treasurer, for the nonpayment of taxes, to Kennedy and Wellesley. Their title subsequently became vested in France, and went from him, by sundry mesne conveyances, to the defendant in error, the Union Pacific, Denver & Gulf Railway Company. The treasurer's deed conveying the property to the purchasers bears date of July 8, 1881; and its sufficiency, of course, is attacked, because it was the last day on which redemption might be made, and, under the law, should have been executed on the day following. It is unimportant to trace the title of the various purchasers, otherwise than to state that, antecedent to the vesting of the title in the present holder, they were found to be in the possession of the property, and were shown to have worked some part of the land, and to have been constructively, if not actually, in the possession of the whole of it. The property was sold by the treasurer in different lots, and consisted of three 40's, though the title passed as an 80 and a 40, rather than in three separate 40's. There was proof tending to show that these parties who claimed title from the treasurer either inclosed a part of it with a fence, or that it had been inclosed by some of the prior holders of the title, and that the land, which was of more or less value as coal land, had been worked as such, and, under lease or otherwise, the coal vein had been more or less developed and worked. The railroad company had run a track on it from 50 to 200 feet, and on this spur cars had been run loaded with coal, and the coal disposed of by the claimants of the title. We attach very little significance to these specific acts of the company, because, as the case stands on the proof, the running of a track and its use would not, alone, show an adverse possession. The possession of a railroad company, which is confined to the laying of tracks and their use, would not, without more, establish an adverse possession beyond the roadbed and track, or possibly the incidental and necessary right of way, unless what it did was done under an assertion of title to the whole tract involved, and there were other acts proven which fortified and exhibited a claim to all the land.

When the plaintiff brought ejectment to recover the land, the defendant pleaded the two statutes of limitation which are applicable in cases of this description; the first being the general statute of limitations, and found in Gen.St.1883, §§ 2186, 2187. This, in general terms, provides that any person who is in the peaceable and undisputed possession of lands, under claim and color of title made in good faith, who shall pay the taxes for five successive years, shall be adjudged the legal owner, or whenever a person thus in possession, and under these circumstances, shall pay taxes for that period on vacant, unimproved, and unoccupied lands, he shall be adjudged the legal owner, to the extent and according to the purport of his paper title. These two sections together cover, of course, the possession of improved or occupied lands, and of vacant property. The other act which was also pleaded was the act of 1877, amended in the Session Laws of 1885 (page 320). This section provides that no action for the recovery of land sold for taxes shall lie, unless it be brought within five years after the execution and delivery of the deed by the treasurer.

On the first trial of the case the learned trial judge, who is now the present chief justice of the supreme court, found for the plaintiff as to one 40, and for the defendants as to the other 80; holding, as is indicated by his opinion, which appears in the present record, that the deed which was produced did not show color of title, within the purview of the statute. The plaintiff took a new trial, as a matter of right, on payment of the costs; and on the subsequent trial which is the one under consideration, the court reversed his ruling, as of necessity he must, because of...