Brown v. State

• Decision Date: 01 April 1881
• Parties: BROWN v. THE STATE.
• Court: Colorado Supreme Court

5 Colo. 496

BROWN v. THE STATE.

Supreme Court of Colorado

April, 1881

Appeal from District Court of Jefferson County.

THE case is stated in the opinion.

Messrs BROWNE & PUTNAM, for appellant.

C. W WRIGHT, Attorney-general for the State.

ELBERT C. J.

This action was brought by the State to recover possession of certain real property known as the 'capitol grounds,' situated in the city of Denver. The State had judgment below and Brown appealed.

It is assigned for error, (1) 'That the State cannot maintain a civil action in the nature of ejectment, or the action provided for in the Code, of that nature to try the title to land.'

It is accepted law, that a State, as a political corporation, may maintain, in its corporate name and in its own courts actions for the enforcement of its rights or the redress of its wrongs, independently of any statutory provision therefor. The right springs from the general principle that every person, whether natural or artificial, capable of making a contract or suffering wrong, may have an action to enforce the one and to redress the other. 1 Dillon Mun. Corp. 106; The People v. The City of St. Louis, 5 Gil. 366; Delafield v. State of Illinois, 2 Hill, 162; State of Indiana v. Warman, 6 Hill, 36.

The proposition is broad, and embraces in its general terms any and every form of action. In any given case, the nature of the right to be enforced or the wrong to be redressed would determine the appropriate action. If the State, in a proper case, may not maintain ejectment, then it is an exception to the general rule.

The claim is, that disseizin is essential to the action; that the State cannot be disseized, and therefore cannot maintain the action.

If we do not discuss the conclusion drawn from these premises, it is not because we admit it. On the other hand, we seriously doubt the propriety of a rule which allows a defendant to plead a prerogative of the State to protect himself in a wrong against the State. There is, however, a fault in the premises that is fatal to the proposition. Disseizin, however it may have been formerly, is not necessary to the maintenance of the action substituted by the Code for ejectment. Disseizin implies an actual entry and actual adverse possession. Disseizin of things corporal, as of houses, lands, etc., must be by entry and actual dispossession of the freehold, as if a man enters by force or fraud into the house of another, and turns, or at least keeps him and his servants out of possession. Bouvier's Law Dic.

Under the provisions of the Code, an actual entry or actual adverse possession is not essential.

By Sec. 248 it is provided, 'If the premises are not actually occupied, the action may be brought against any person exercising acts of ownership on or over the premises claimed, or who claims title thereto, or some interest therein, at the time of the commencement of the action.'

By this section, an adverse claim of title to, or interest in, the premises is sufficient to support the action.

Under a similar provision in the New York Code, it is held that ejectment for premises not actually occupied, may be brought by one claiming title at the commencement of the suit, though his claim has been manifested by words merely. Bayer et al. v. Easpie, 5 Hill, 48; Child v. Chaprell, 9 New York, 246. It is also held that, although the averments of prior possession and ejectment are made in the declaration, it is not necessary to prove them, as they are merely formal. Tyler on Ejectments, 616, and cases there cited.

We must accordingly hold that, as against this objection, the action is maintainable by the State.

It is assigned, (2) That the plaintiff had no legal capacity to sue.

The point made is, that the complaint is entitled 'The State of Colorado, Plaintiff,' etc., instead of 'The People of the State of Colorado,' in which name all process is required to run, by Sec. 30, Art. VI of the constitution. To this it is only necessary to say, that 'The State' means the whole people united in one body politic, and 'The State' and 'The People of the State,' are equivalent expressions. Penhollow v. Doane, 3 Dal. 93; 1 Story's Con. Sec. 361.

It is assigned, (3) The court erred in overruling defendant's demurrer to plaintiff's complaint.

The principal points raised by the demurrer were the two which we have just considered, and if the views we have already expressed are correct, the demurrer was properly overruled.

It is assigned, (4) The court erred in vacating the judgment of nonsuit, and granting a new trial on plaintiff's motion.

Judgment of nonsuit was entered in a trial had before Judge Bowen at the January term, 1880, of the district court for the county of Arapahoe, at which time plaintiff gave notice of a motion for a new trial. At the succeeding March term of the court this motion was heard and a new trial granted. At the same term the venue of the cause was changed to the county of Jefferson, in the first district. Afterward, at the April term of the district court for the county of Jefferson, a trial was had before Judge Mitchell, which resulted in a judgment for the plaintiff. This is the judgment appealed from, and the errors of which we are called upon to review. If there was error in vacating the judgment of nonsuit and granting a new trial, it was an error occurring in a former trial, the record of which is not before us. If the error was allowed, it would go to a judgment other than the one appealed from. The pleadings in the case and the proceedings on the new trial constitute the record we are reviewing. An error occurring in a former trial must be reached in some other way.

It is assigned, (5) That the court erred in overruling the defendant's motion for nonsuit.

All the questions embraced in the motion for nonsuit are considered under other assignments, for which reason it is not necessary to consider them under this.

It is assigned (6), The court erred in receiving in evidence on behalf of the plaintiff the deed from defendant Brown, conveying the premises in dispute to the Territory of Colorado.

Four objections are urged to the admissibility of the deed:

(1) Because the lands conveyed are not 'within the city of Denver,' as required by the act of the legislature. Revised Statutes, 90, Secs. 3, 8.

Sec. 1 of this act located and established the seat of government at Denver.

Sec. 2 provided for the appointment of three commissioners on behalf of the Territory to select a site within the city of Denver for the capitol of said Territory.

Sec. 3 directs that the commissioners shall, within sixty days, 'proceed to select a site for the capitol of said Territory within the said city of Denver, which site shall contain not less than ten acres of land,' etc.

Whether the site conveyed was within the corporate limits of the city of Denver at the date of the conveyance in 1868, does not appear, except in so far as a presumption may be indulged that the limits prescribed by statute in 1866 (Ses. Laws, 1866), two years prior to the conveyance, remained unchanged. This presumption is not very strong, in view of the fact that the limits prescribed by the act were liable, under the provisions of Sec. 3 of the act, to be changed at any time by any owner of adjoining lands surveying, platting and recording an addition to the city.

Accepting the presumption, however, as legitimate, we find that the site, situated and conveyed, was sixty feet south of the city limits, as prescribed by the act of 1866. This certainly is not a very wide departure form the directions of the act, if we were to accept the construction that the site was to be within the corporate limits of the city.

This construction, however, is by no means a necessary one.

By Sec. 1 the legislature located the seat of government 'at Denver.' Did they mean anything else in Secs. 2 and 3, where they use the phrase 'within the city of Denver?' Would not any more definite intention have been more definitely declared? In view of the nature of the act to be done, the necessity not only for a convenient, but also an appropriate and fitting site for capitol buildings, the difficulty of securing so large a body in any platted city-the construction is not an unreasonable one. This was evidently the construction put on the act by the appellant Brown and the commissioners, for the deed recites the title of the act, and declares the conveyance made in pursuance thereof. Three propositions may be stated:

First. If the construction was erroneous and the site selected therefore not within the intent of the act, it was for the State to object; not having objected, but on the other hand having acquiesced in the selection for a long term of years, the State is to be taken as having adopted and ratified, not an illegal act, but the construction of the law put upon it by its public agents, and which brought the site selected within the intent and meaning of the law.

Second. If Brown was acting in good faith at the date of the conveyance, and we take it for granted he was, this was the construction which he placed upon the law, for his conveyance is made 'in pursuance of the act.' Having acted under this construction, having acquiesced in it for a long period of years in common with the State, and having received the presumable benefits arising from such location on his land, he is not at liberty to abandon it at pleasure and to insist upon another construction which would avoid his conveyance.

Third. When a construction of a statute is not an unreasonable one and parties have acted upon and acquiesced in it for a long period of time, justice requires that courts, for the maintenance of property rights acquired under it, should uphold the construction given...