Buell v. Redding Miller, Inc.

• Decision Date: 17 July 1967
• Docket Number: No. 21130,21130
• Citation: 430 P.2d 471,163 Colo. 286
• Parties: Temple Hoyne BUELL, also known as Temple H. Buell and T. H. Buell, Plaintiff in Error, v. REDDING MILLER, INC., a Colorado corporation et al., Defendants in Error.
• Court: Colorado Supreme Court

Page 471

430 P.2d 471

163 Colo. 286

Temple Hoyne BUELL, also known as Temple H. Buell and T. H.

Buell, Plaintiff in Error, v. REDDING MILLER, INC., a Colorado corporation et al.,

Defendants in Error.

No. 21130.

Supreme Court of Colorado, En Banc.

July 17, 1967.

Rehearing Denied Aug. 28, 1967.

Akolt, Shepherd & Dick, Laurence W. DeMuth, Jr., Pauline J. Nelson, Denver, for plaintiff in error.

Joseph M. McDonald, Washington, D.C., Rothgerber, Appel & Powers, Fairfield & Woods, Isaacson, Rosenbaum, Goldberg & Miller, Creamer & Creamer, William Livingston, Edward Miller, Wesley A. Miller, Warren Kent Robinson, Ireland, Stapleton, Pryor & Holmes, Robert C. Hawley, William N. Armstrong, Denver, for defendants in error.

MOORE, Chief Justice.

We refer to plaintiff in error as plaintiff or as Buell, and to defendants in error as defendants or by their respective names.

In 1925 Buell acquired title to land in the northerly portion of the SW 1/4 of Section 12, Twp. 4, South, Range 68 West of the 6th P.M. in the City and County of Denver. The north boundary of that property is the east-west centerline of section 12. Defendants are the owners of property which lies within the NW 1/4 of the same Section 12, and abuts on the north the property acquired by Buell in 1925.

On August 19, 1948, Buell subdivided his above described land (together with his other lands) and filed a plat thereof designating the same as Coloden Moor Subdivision. This plat contained the usual designation of streets and thoroughfares for use of the public. Among these was a strip of ground 110 feet wide extending along the northern boundary of the Buell property, which was designated 'First Avenue.' The northern boundary of this 'First Avenue' was the east-west centerline of Section 12, which, as above indicated, separated the Buell property from that owned by the defendants or their predecessors in interest. Pursuant to the dedication to public use of the streets, as indicated by the plat, Buell, '* * * by these presents does grant to the City and County of Denver for the perpetual use of the public the right of way in, through, and across the streets and avenues as shown on this map.' The dedication as made by Buell was duly approved by the City and County of Denver by ordinance adopted in November, 1948. Since that time there has been a remarkable business development in the general area of the property above mentioned. On either side of 'First Avenue' as originally dedicated by Buell, numerous stores, shops and business establishments have grown up and are carrying on their respective activities.

It is admitted that the north 20 feet of 'First Avenue' as dedicated by Buell has been vacated by proper action of authorized officials, leaving only a strip of land 90 feet in width as the thoroughfare known as 'First Avenue' which is used by the public. On July 15, 1960, plaintiff Buell filed his complaint in the district court of the City and County of Denver alleging that he was the owner of the 20 foot strip of land originally included in the 110 foot wide area dedicated by him as 'First Avenue,' which had been vacated as a part of the street. He alleged that all of the numerous named defendants claimed some right, title, or interest in and to the 20 foot strip of real estate, but that the claims of defendants were without foundation or right. He prayed generally for a decree quieting title in the plaintiff. Each of the defendants answered the complaint, denied the title alleged by plaintiff, and demanded dismissal of the complaint. Some of them filed counterclaims to quiet title in themselves in and to their respective portions of the 20 foot strip.

Trial was to the court which found generally against the plaintiff; that the claims of the plaintiff were without merit; and that plaintiff has no title in or to the property which is the subject matter of the action. The trial court further found that when the City and County of Denver 'vacated' the 20-foot strip, title thereto was vested in the owners of the land abutting that portion of 'First Avenue' thus vacated. The trial court adjudicated in detail the respective rights of each of the defendants in their respective portions of the whole 20 foot strip which plaintiff had claimed, and reserved the rights of damages as claimed by those defendants for future determination. Those findings and orders were entered on October 18, 1963. Subsequently thereto the court in various separate orders entered final judgments on the respective counterclaims.

Plaintiff in seeking reversal by this writ of error contends that:

'I. The plaintiff granted only a right or way to the city of Denver; he is still the owner of the fee simple title to the land.

'II. The fee simple title to the land remained in Buell and was not divested by the Colorado Dedication Statute.

'III. The vacation statute did not divert Buell's fee simple title to the land; he remained the owner of the land after vacation.

'IV. There is no merit to defendants' claims of laches and estoppel.'

As to the plaintiff's fourth point for reversal, it is sufficient to say that the trial court found it unnecessary to decide the questions of laches and estoppel, and in view of our conclusions herein we also find it unnecessary to touch upon those questions.

C.R.S.1963, 139--1--7, provides:

'All avenues, streets, alleys, parks and other places designated to described as for public use on the map or plat of any city of town, or of any addition made to such city or town, shall be deemed to be public property, and the fee thereof be vested in such city or town.'

Legislation similar to the above-quoted statute is common throughout the United States and has given rise to much litigation; decisions pertaining to it are by no means uniform. There are cases in other jurisdictions in which the courts have said in effect that similar statutes do not mean what they say.

City of Leadville v. The Bohn Mining Company, 37 Colo. 248, 86 P. 1038, 8 L.R.A.,N.S., 422, is relied on by counsel for Buell. In that case it was held that a city, under a dedication of this kind, acquires such estate or interest as is...