City of Leadville v. Coronado Min. Co.

Decision Date20 May 1901
Citation29 Colo. 17,67 P. 289
PartiesCITY OF LEADVILLE v. CORONADO MIN. CO. et al.
CourtColorado Supreme Court

Appeal from district court, Lake county.

Action by the city of Leadville against the Coronado Mining Company and others. From a judgment for defendants, plaintiff appeals. Reversed.

The complaint alleges that Thomas Starr was on August 17, 1880 the owner in fee of a certain portion of the Starr placer mining claim, in Lake county, Colo., and on said day caused a portion of the premises so owned by him to be laid out surveyed, and platted as the Stray Horse addition to Leadville, and caused a map thereof to be made, designating thereon certain streets, avenues, alleys, and other places for public use; that said map was on September 28, 1880 submitted to, and duly accepted by, the city council of Leadville, and that said plat was filed and recorded with the county clerk and recorder of Lake county on the 18th of November, 1880; that on said 17th of August, 1880, said Thomas Starr duly executed, acknowledged, and delivered a deed of conveyance to the streets, alleys, and public places designated on said map (then follows a description of the streets, alleys, and public places on said map); that immediately thereupon the city of Leadville entered into the possession of the said streets and alleys, and expended large sums of money in grading and improving the same; that about the month of July, 1896, the defendant the Coronado Mining Company did wrongfully and unlawfully, and without the consent of plaintiff, enter upon the streets, avenues, and alleys shown upon said plat, by means of certain underground levels, and begin to excavate, and did excavate and convert to its own use, large quantities of iron, silver, and lead bearing ores therefrom, of the value of $30,000; that the Wolcott Mining Company purchased from Thomas Starr the premises described, and claims, notwithstanding the acts of Thomas Starr in dedicating and conveying the streets and alleys as aforesaid, that it is the owner of the premises and entitled to the mineral and ore beneath the surface; that the Coronado Mining Company is the lessee of the Wolcott Mining Company, and justifies its entry into the premises as such lessee; that the defendants wrongfully withhold the premises from plaintiff,--and prays for a temporary injunction, and for damages in the sum of $30,000, and that the temporary injunction be made perpetual. The answer admits that Thomas Starr was the owner of the property mentioned, and that he executed and acknowledged a pretended plat and conveyance as alleged in the complaint; admits that the defendant the Coronado Mining Company extracted ore from the property described in the complaint; admits that the Wolcott Company purchased the property described from Thomas Starr; admits that the Wolcott Company claims that it is the owner of, and entitled to the possession of, the ore underneath said alleged streets and alleys; admits that the Coronado Mining Company is the lessee of the Wolcott Company, and as such has extracted ores from the premises as charged in the complaint; and denies all the other allegations of the complaint. It alleges that the Coronado Company, as lessee of the Wolcott Company, has been in the open and notorious possession of the premises described in the complaint, with the knowledge of plaintiff, and that plaintiff has never protested until the filing of this suit; that the Wolcott Mining Company is the owner and entitled to the possession of the ores beneath the surface of said premises; that the ores taken from said premises were taken at a depth of more than 400 feet beneath the surface of the streets and alleys described; and that in excavating and mining they have not, will not, and do not interfere with the free and full use of the surface. The cause was tried to the court. Upon the trial the plaintiff offered Exhibit No. 1, purporting to be a plat executed by Thomas Starr to the premises described in the complaint. The defendants objected to the introduction of the plat because said plat does not set forth all the streets, alleys, avenues, and highways, and the width thereof; because said plat does not set forth all parks, squares, and all other grounds reserved for public use, or any of them; because said plat does not set forth all or any lots and blocks or boundaries, designating such lots and blocks by number, and does not give the dimensions and numbers of such lots claimed thereon; because said plat does not show the topography of the property described therein; because it does not appear from the evidence that the plat was approved by three-fourths of the members elected to the city council prior to the time of its recording in the office of the clerk and recorder of the county of Lake, or any other time; because it appears from the evidence that the only map alleged to have been approved by the city council was alleged to have been approved at a date subsequent to the recording of said plat in the office of the county clerk and recorder; because it does not appear from the evidence that any plat alleged to have been approved by the city council was ever filed with the city clerk and recorder as provided by law. Because it does not appear that the alleged plat, or any plat approved as required by law, was filed in the office of the county clerk and recorder. Said exhibit is further incompetent, irrelevant, and immaterial, for the reason that it does not tend to prove any issue in this case; for the reason that it does not grant or convey to the plaintiff the right to the ore body or premises in question, or to mine the same, or to prevent the defendants from mining the same; and because it does not appear that the said territory was within the said city of Leadville; and because the city of Leadville has no power to take and hold mining property. Plaintiff offered the record of the city council for the 28th of September, 1880, which shows that the council convened in regular session; that there were present the mayor and nine aldermen, and that three aldermen were absent; and that the plat of Stray Horse addition was approved,--eight alderman voting for, and one against, the adoption of the plat. Plaintiff offered to prove by William M. Clark that he was clerk of the city council from the 5th of August, 1879, to the year 1880, and that during that time, or a portion of that time, there was on file in the city clerk and recorder's office a plat or map known as the 'Stray Horse Addition to the City of Leadville,' and that said map or plat was filed at the time when said Clark was city clerk and recorder. Counsel for the defendants admitted that Mr. Clark would so swear. Plaintiff offered to prove by O. E. Mallory that he was, at the time of testifying, clerk of the city of Leadville, and had the custody of the records and files of the city of Leadville; that he had made diligent search throughout his office and at all other places where the plats of the city of Leadville would be likely to be kept; and that he had failed to find any plats of the Stray Horse addition to the city of Leadville, either similar to the one marked 'Exhibit 1,' or of any other kind or character. Counsel for the defendants admitted that Mr. Mallory would so testify. Plaintiff offered to prove by Jesse F. McDonald that he is a civil engineer, and at the time of testifying was mayor of the city of Leadville; that he is well acquainted with the tract commonly known as 'Stray Horse Addition to the City of Leadville'; and that he knows of his own personal knowledge that for many years last past, and since 1880, the city has exercised authority over what purported to be the streets and alleys of said addition, in all respects as part of the plat of Leadville, in the same manner as all other additions have been treated by said city. It was admitted by counsel for the defendants that Mr. McDonald would so testify. From the certificate attached to said exhibit, it appears that it is a true and correct copy of the plat of Stray Horse addition, as the same appears of record in the office of the county clerk and recorder of Lake county, in City and Village Plat, p. 53. The court sustained the objections to Exhibit No. 1, granted a motion for nonsuit, and gave judgment for defendants for costs. From this judgment the plaintiff appeals.

T. A. Dickson, R. D. McLeod, and Patterson, Richardson & Hawkins, for appellant.

Teller & Dorsey, Anson Wolcott, J. A. Ewing, and Charles Cavender, for appellees.

STEELE, J. (after stating the facts).

This controversy arises over the act of the Coronado Mining Company, as lessee of the Wolcott Mining Company, in excavating under the streets and alleys of an alleged addition to the city of Leadville known as 'Stray Horse Addition to the City of Leadville,' and extracting ore therefrom. The Wolcott Mining Company claims to be the owner of the fee in the streets and alleys of said addition through title from Thomas Starr, the original patentee of the Starr placer, United States mineral survey No. 255. The city contends that Thomas Starr on the 17th of August, 1880, made a statutory dedication of the streets and alleys included within the said addition, and at the same time, by his deed indorsed upon the map or plat, conveyed to the city, as public property, the streets and alleys designated thereon.

It is contended by the defendants, and was held by the trial court that sections 1 and 2 of article 11 of chapter 84 of the Revised Statutes, and section 2648 of the General Laws, were in force at the time of the filing of this plat, and constituted the statutory provisions concerning the filling of plats, and the annexing of contiguous territory to cities and incorporated towns. For a proper discussion of the...

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6 cases
  • City of Leadville v. Coronado Min. Co.
    • United States
    • Colorado Supreme Court
    • July 2, 1906
    ...for review the rulings of the trial court upon the admission of certain evidence, but did not involve any question upon the merits. 29 Colo. 17, 67 P. 289. What was there said by the writer of the opinion questions other than the one properly presented was not concurred in by the other judg......
  • Bothwell v. Denver Union Stockyard Co.
    • United States
    • Colorado Supreme Court
    • March 11, 1907
    ... ... any city or town, or of any addition made to said city or ... town, shall be ... 1868. Leadville v. Coronado Mining Co., 29 Colo. 17, 67 P ... 289. By this dedication ... ...
  • Schraeder v. Mitchell
    • United States
    • Colorado Supreme Court
    • May 7, 1923
    ... ... [73 ... Colo. 321] R. D. McLeod, of Leadville, for plaintiffs in ... Quentin ... D. Bonner, of Leadville, for ... Colo.App. 147, 57 P. 754. See, also, Leadville v. Coronado M ... Co., 29 Colo. 17, 67 P. 289; Weghorst v. Clark, 66 Colo. 535, ... ...
  • Board of Com'rs of Jefferson County v. Warneke
    • United States
    • Colorado Supreme Court
    • March 25, 1929
    ... ... It is not ... contiguous, nor is it an addition to any city or town. The ... plat was made and filed as provided by statute and is in ... In City ... of Leadville v. Coronado M. Co., 29 Colo. 17, 23, 24, 67 P ... 289, 290, where the ... ...
  • Request a trial to view additional results

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