City of Denver v. Clements

• Decision Date: 01 December 1877
• Citation: 3 Colo. 472
• Parties: CITY OF DENVER v. CLEMENTS.
• Court: Colorado Supreme Court

3 Colo. 472

CITY OF DENVER v. CLEMENTS.

Supreme Court of Colorado

December, 1877

Appeal from District Court of Arapahoe County.

Trespass quare clausum. It was among other things stipulated by the parties in the court below as follows:

'And it is further agreed that the parties waive a trial by jury and submit all the matters and issues of law and facts to the court, and this agreement is made a part of the record in this case. And the pleadings in the case subsequent to the declaration are hereby withdrawn. In the year 1859 one E. D Boyd surveyed and made and filed a map of the city of Denver and according to said map of Boyd, the land, to wit: the south half of the north-east quarter of section thirty-four township three, range sixty- eight, in Arapahoe county, Colorado Territory, upon which the trespass is alleged to have been committed, formed a part of said city so laid out by said Boyd. The title to the land included in the city of Denver, according to said map, was at that time in the United States. A copy of the aforesaid map of Boyd is exhibited in these proceedings to show the location of block 'A' and of the streets and alleys on said land, as well as in the city of Denver generally, according to said map.

Alfred H. Clements pre-empted the said land-that is, the south half of the N.E. quarter of section 34, T. 3, R. 68, and eighty acres adjoining it, one hundred and sixty acres in all-on the 11th day of May, A. D. 1864, and the certificate of pre-emption issued to him on that day. Block 'A,' on which the trespass is alleged to have been committed, is a part and parcel of the said south half of the N.E. quarter of section 34, T. 3, R. 68, said block being 500 feet long and 400 feet wide. After the pre-emption of said land, Alfred H. Clements sold and conveyed to individuals lots on said land, according to the aforesaid map of E. D. Boyd, and in the conveyances of said lots, referred to said map of said Boyd for description of said lots so conveyed, but did not sell or convey any part of Block 'A.' On the 1st day of December, A. D. 1865, a patent issued for, and was received by, Alfred H. Clements for the 160 acres of land aforesaid, under the pre-emption certificate of May 11, A. D. 1864, and after the said patent was issued, Alfred H. Clements sold and conveyed divers lots and parcels of said land to individuals according to Boyd's said survey, and in conveyances thereof referred to said map and survey for description; but sold no part of Block 'A.' On the 23d day of January, A. D. 1869, Alfred H. Clements sold and conveyed all of his interest in said land to Caleb B. Clements. Caleb B. Clements sold to individuals some of the lots on said land according to the aforesaid map of E. D. Boyd, and in the conveyances thereof referred to said map of E. D. Boyd for description; but did not sell or convey any part of said Block 'A.' On the 13th day of January, A. D. 1870, Caleb B. Clements filed in the recorder's office in Arapahoe county, Colorado Territory, his map of Clements' addition, embracing, among other lands, the said south half of the N.E. quarter of section 34, T. 3, R. 68; of which said Block 'A' was a part, and marked Block 'A' on said map, and according to said map so filed by C. B. Clements as aforesaid, no street nor alley ran through or on said Block 'A,' and the said block was not divided into lots, but said block was marked on said map 'Block A.' That Welton street in said map of Clements' addition is laid as it was laid out in the Boyd survey, except that portion of the same included in Block 'A.'

That in the year 1863, and during the months of January, February, March and April, A. D. 1864, Alfred H. Clements built and put large and valuable buildings and improvements on said Block 'A,' and at the same time inclosed the whole of said Block 'A' under one substantial fence inclosure. That, with the exception of said fence, none of said improvements on said Block 'A' occupied that portion of the said inclosure occupied by Welton street in the Boyd survey. That said improvements cost $15,000. That said A. H. Clements planted said block in trees and shrubbery, and made said block his home and residence; and said Block 'A' has so remained improved, inclosed and occupied by the said A. H. Clements and the subsequent purchasers from January, A. D. 1864, to the time of the trespass alleged in this suit. That, with the exception of said Block 'A,' the city of Denver has been in possession of Welton street through said Clements' addition since 1864, but has not improved, graded, or performed any work on said street through said addition.

The congressional grant for the relief of the citizens of Denver, passed congress May 24th, 1864. This grant covered section 33 and the west half of section 34, T. 3, R. 68. The congressional grant adjoined, but did not include, any of the lands in Clements' addition aforesaid. The entry of the probate judge of the lands embraced in the congressional grant for the purpose specified in said act of congress, was made May 6th, A. D. 1865.

'If Welton street had been extended from the lands of the congressional grant through Clements' addition, as per map of E. D. Boyd, it would have run through Block 'A' as it has done since the time of the alleged trespass, to wit, the 1st day of September, A. D. 1874; and by said map of E. D. Boyd, Welton street is laid down as running through the lands which now constitute Block 'A.' If Glenarm street were extended from the congressional grant through Clements' addition, as per map of E. D. Boyd, it would run through Block 'A' so built upon the said block as aforesaid. On the 12th day of January, A. D. 1872, C. B. Clements sold and conveyed all of his interest in the aforesaid lands, of which Block 'A' was a part and parcel, to Richard T. Clements, the plaintiff in this suit, who is still the owner of said lands. Prior to filing the map of Clements' addition by C. B. Clements, on the 13th day of January, A. D. 1870, the city of Denver had established no grades and made no improvements upon the streets run through the land embraced in Clements' addition as per survey and map of E. D. Boyd, and had not used the said street, and had not accepted said streets by any action on the part of said city or its authaorities; but that said lands were described as being in the city limits by act of legislature of Colorado of 1861, 1864, 1866. That subsequent to the filing of said map of Clements' addition on the 13th day of January, A. D. 1870, the said city of Denver did not improve, grade, open up, or take possession of the streets as per map of E. D. Boyd, embraced in the lands of Clements' addition, until the time of the alleged trespass, and then only Welton street. That from the time of the entry of said lands by pre-emption, on the 11th day of May, A. D. 1864, by Alfred H. Clements, to the bringing of this suit, city taxes have been assessed and paid upon said block as a whole, as well as upon that part of said Block 'A' now claimed for street purposes, as upon the balance of said block. On the 11th day of September, A. D. 1874, without the consent, and against the protest, of said R. T. Clements, the city of Denver, by order of the city council, opened up Welton street, according to the aforesaid map of E. D. Boyd, through Block 'A' in Clements' addition, and in doing so removed and took down the inclosure around said Block 'A,' and took and appropriated a part of said Block 'A' for the purpose of opening Welton street, the part so taken and appropriated for said street being eighty (80) feet wide and four hundred (400) feet in length, and being the space designated as Welton street by map of said E. D. Boyd, and where Block 'A' now stands. The city refuses compensation for so opening up Welton street through said block, and taking possession of and appropriating a part of said block to street purposes. It is for this alleged trespass, and the damages growing out of the same, that this suit is brought. If the court shall find the defendant guilty, the court shall also assess the amount of damages upon the basis aforesaid; that is, by and upon such proper evidence as may be presented by either party and received by the court, as to the value of the land so taken as aforesaid, and converted into a street by the city authorities aforesaid, and any other damages, if any, growing out of such taking and appropriation of the lands aforesaid; costs in this case to go as in other cases in this court. Nothing herein shall be so construed as to prevent either party from taking this case to the supreme court.'

The following is a copy of the map referred to in the stipulation, showing a portion of Clements' addition in Boyd's survey of East Denver. [See Map.]

(Image Omitted)

'The area on the map, marked 'A,' is the Block 'A' alluded to in the stipulation, and upon which the alleged trespass was committed. The area marked by the outer dotted lines shows Clements' addition to the city of Denver as filed in 1870, and covering so much of Boyd's survey as is shown on this map.

'The portion of Welton street as shown on this map, and running through Block 'A,' indicates the ground taken and occupied by the defendant as set forth in the stipulation. And Welton street, as a street, on both sides of Block 'A,' was in possession of defendant long prior to the alleged trespass.

'The line running diagonally across the map, with the lines running at right angles from it, show the congressional grant, and the position of said grant with reference to Block 'A.'

'The main map is a copy of so much of Boyd's map, known as Boyd's survey of the city of Denver, as it was made in 1859, and according to which survey the map sales of lots and blocks were...