City of Denver v. Denver & S. F. Ry. Co.

• Decision Date: 17 October 1892
• Citation: 31 P. 338,17 Colo. 583
• Parties: CITY OF DENVER v. DANVER & S. F. RY. CO. et al.
• Court: Colorado Supreme Court

31 P. 338

17 Colo. 583

CITY OF DENVER v. DANVER & S. F. RY. CO. et al.

Supreme Court of Colorado

October 17, 1892

Appeal from superior court of Denver.

Action by the Denver & Santa Fe Railway Company and the Atchison Topeka & Santa Fe Railroad Company to restrain the city of Denver from removing plaintiffs' railroad from the streets. Decree for plaintiffs. Defendant appeals. Affirmed.

The other facts fully appear in the following statement by ELLIOTT, J.:

Action to restrain the city of Denver from removing railroad from street. Appellees were plaintiffs below. The case was submitted upon the evidence introduced in their behalf. The defendant city offered no evidence. The facts necessary to an understanding of the opinion are in substance as follows Prior to the month of January, 1882, the Denver Circle Railroad Company constructed and operated its railroad leading out of the city of Denver, in a southerly direction through a certain town site, then called 'Fairmont,' and beyond. At the time of the construction of the Circle road, Fairmont was simply a town site platted into lots and blocks, streets and alleys; and the Circle road was constructed through what was called 'Bridger Street,' in said Fairmont. The town site of Fairmont consisted of 376 lots owned and laid out by a corporation called the Denver Land & Improvement Company. Three hundred and sixty-two of said lots were owned by said company at the time the Circle road was constructed. It does not appear that any of the 14 lots disposed of abutted on Bridger street, through which the Circle road was constructed; and the trial court, upon objection from defendant, refused to allow plaintiffs to show affirmatively where said 14 lots were located. But it was shown by parol, without objection, that the trustees of the Denver Land & Improvement Company got together, and consented to the construction of the road through the town site of Fairmont, and were more or less active in promoting the construction of the road through said town site. Archie C Fisk, president and the largest stockholder of the improvement company, and also a director of the Circle Railroad Company, and a large owner of its securities, was particularly active in promoting such construction. Fairmont became a part of the city of Denver in 1883, after which Bridger street was called 'West Third Avenue.' In 1887 the Circle Railroad, together with the rights and franchises of the Circle Railroad Company, was acquired by and passed into the possession and control of, plaintiffs. In September, 1888, the defendant city, in pursuance of a resolution of its city council, caused notice to be served upon plaintiffs to remove their railroad tracks from West Third avenue, formerly Bridger street. The resolution and notice were based upon the claim that the Circle road had been constructed in said street without lawful authority; and the defendant city further notified plaintiffs of its intention to tear up and remove said railroad from said street, in case plaintiffs neglected or refused so to do. Thereupon this suit was commenced to restrain the defendant city, its agents and servants, from carrying out its threatened action in the premises. The decree of the district court was in favor of plaintiffs, and enjoined the city from removing or interfering with said railroad in said street. The defendant city brings this appeal.

Syllabus by the Court

1. To constitute a road a public highway at common law, there must be both a dedication and an acceptance, either express or implied. Unless otherwise provided by statute, a dedication without acceptance is, in law, merely an offer to dedicate, and such offer does not impose any burden, nor confer any right, upon the public authorities, unless the road is accepted by them as a highway, though, if used by the public and treated by the public authorities as a highway, acceptance of the dedication may be implied.

2. Where a railway company gains lawful possession of private land as a right of way, the land being located outside any municipal corporation, the subsequent annexation of such land to a city does not render the railway company's possession unlawful, nor does the subsequent acceptance of such land as a public street or highway by the city render the occupation and possession of said street by said railroad a nuisance, subject to be abated by mere...