City of Leadville v. Coronado Min. Co.

Decision Date02 July 1906
Citation86 P. 1034,37 Colo. 234
CourtColorado Supreme Court

Appeal from District Court, Lake County; M. S. Bailey, Judge.

Action by the city of Leadville against the Coronado Mining Company and another. Judgment for defendants. Plaintiff appeals. Affirmed.

The appellant instituted this action to enjoin the appellees from mining and extracting iron and silver and lead-bearing ores under certain streets and alleys in the city of Leadville, to recover possession of the ground in which it is alleged appellees have unlawfully entered for that purpose, and damages for ore extracted. The facts pertinent to the controversy are in substance as follows: On the 17th day of August, A. D. 1880, one Thomas Starr, being the owner of what is known as the 'Starr Placer mining claim,' surveyed and platted a certain portion of that claim as the Stray Horse addition to the city of Leadville, and on the 28th day of September, 1880, submitted to the city council a map of the premises so platted. This plat was indorsed as follows 'And I, the said Thomas Starr, hereby dedicate and convey to said city as public property the streets and alleys so aforesaid laid off, marked and designated as such on said plat.' The council consisted of 12 members. The record of its proceedings shows that at the meeting of September 28th there were 9 members present, and that 8 voted for, and 1 voted against, the approval and acceptance of the plat. At a meeting held on the 13th day of October, 1880, 'the minutes of the previous meeting were read and approved.' On the 18th of November, 1880, the plat was filed for record with the county clerk and recorder of Lake county, with indorsement thereon, signed by the mayor and city clerk, to the effect that the plat had been presented and approved by three-fourths of the members elected to the city council. The plat was not filed with the city clerk. It appears from the evidence that on the 6th day of March, 1880, more than six months prior to the time the plat aforesaid was acted upon by the city council, the council approved a report that, inter alia, set forth that the Stray Horse addition had been added to, and was included within, the boundaries of the city of Leadville. It is also shown that Starr, prior to the alleged dedication, on September 8, 1879, conveyed lots, described as being in block B of another plat, being practically the same as those on which the working shaft of the appellees is sunk in which conveyance he reserved the right and ownership to all minerals beneath the surface, and in all of the deeds to lots included within the plat, before and after the same was filed as aforesaid, he reserved the minerals underneath the surface. The statute authorizing additions to cities and towns, and providing the manner in which such additions should be made, in force at the time the plat under consideration, was submitted to the city council, approved April 4, 1877 (Gen. Laws 1877, c. 100), enacted that 'Sec. 7. Whenever any territory shall be laid out and surveyed as an addition to any city or town organized under this act, such territory shall, upon the filing of the map or plat thereof in the office of the county clerk and recorder of the county in which said territory may be situate, and another such map or plat with the clerk or recorder of the city or town to which it is desired to annex such territory become a part of said city or town, and be included within the limits and jurisdiction thereof; provided, that no map or plat of such addition shall be filed for record with said clerk and recorder until the same has been by the owner or owners of such contemplated addition submitted to the city council or board of trustees of said city or town, and approved by three-fourths of the members elected thereto, and no map or plat of such addition shall be approved by said council or trustees unless the proposed streets and alleys therein are in conformity, as to courses and angles, with the streets and alleys of adjoining portions of said city or town, nor unless such map or plat shall show the topography of such territory as to bluffs, streams, ditches, ravines, etc., nor until all taxes then assessed against said territory are paid, and if the said territory shall have previously been sold for taxes and not redeemed therefrom, the owner or owners thereof shall first redeem the said land from such tax sale; provided, that the tax deed has not issued thereon.' Section 6 of the act provides that: 'All avenues, streets, alleys, parks, and other places designated or described as for public use on the map or plat of any city or 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.' The city has been in possession of, and exercised control over, the streets and alleys designated on the plat ever since the same was filed as aforesaid. The Wolcott Mining Company purchased from Thomas Starr the premises described, and the Coronado Mining Company, as its lessee at the time this action was commenced and for some time prior thereto, was engaged in mining and extracting mineral-bearing ores at a depth of from 400 to 500 feet beneath the surface of the streets and alleys included in the foregoing plat. This mining in no way interfered with the use of the streets by the public as highways, or with the plaintiff's use of the same for municipal purposes.

Blake & Thompson, Wm. H. Harrison, and Richardson & Hawkins, for appellant.

John A. Ewing and Charles Cavender, for appellees.

GODDARD, J. (after stating the facts).

This case was before this court upon a former appeal, which presented 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 upon questions other than the one properly presented was not concurred in by the other judges, and therefore in no manner constitutes an adjudication of such matters, and we are in no way precluded thereby from applying the law as we conceive it to be to the facts presented by the present record.

It is contended by plaintiff that the filing of the plat and the proceedings had by the city in relation thereto constituted a statutory dedication, and vested the fee of the streets and alleys in the city, and that such title gave to it, not only the surface for street purposes, but also the ownership of the ground included within such streets and alleys and all minerals contained therein, and furthermore that the word 'convey,' as used in the indorsement on the plat, is also a conveyance of the fee independently of the dedication.

The contention of the defendants is that the failure to comply with the mandatory requirements of the statute in accepting and filing the plat did not constitute it a statutory dedication, but amounts only to what is known as a 'common-law dedication,' of the streets and alleys within the Stray Horse addition, and that the city obtained an easement only therein. Speaking to this question in the opinion referred to, the writer uses this language: 'But no authority has been cited which holds that the failure of the city to accept a dedication in strict accordance with the statute operates to debase the estate, intended to be passed from a fee to an easement, where, as in this case, there was an unmistakable intention to convey the fee, and where the city had taken immediate possession and continued in possession, levied taxes, and made improvements, with the assent of the donor.' Our reading of the authorities leads us to a different conclusion, and we think that it has been uniformly held that to constitute a statutory dedication the requirements of the statute must be complied with, and where this has not been done the subsequent conduct of the donor, or of the city, cannot operate to make it such; and, although the intention to dedicate is clearly manifested, the dedication will amount to only a common-law dedication. This is the rule announced in the following cases, and many others that might be cited, and we have found none to the contrary. Those seemingly to the contrary are based upon statutes wherein no particular, or any, mode of acceptance was prescribed. Jordan v. City of Chenoa, 166 Ill. 530, 47 N.E. 191; Wisby v. Bonte et al., 19 Ohio St. 238; Earll v. City of Chicago, 136 Ill. 277, 26 N.E. 370; Gould v. Howe, 131 Ill. 490, 23 N.E. 602; Marsh v. Village of Fairbury, 163 Ill. 401, 407, 45 N.E. 236; Village of Vermont v. Miller, 161 Ill. 210, 43 N.E. 975; Village of Auburn v. Goodwin, 128 Ill. 57, 21 N.E. 212; Laughlin v. City of Washington, 63 Iowa 652, 19 N.W. 819; Parsons v. Trustees, 44 Ga. 529; People v. Beaubien, 2 Doug. (Mich.) 256; Burton v. Martz, 38 Mich. 761; Village of Grandville v. Jenison, 84 Mich. 65, 47 N.W. 600; Gardiner v. Tisdale, 2 Wis. 153, 184, 60 Am.Dec. 407; City of Denver v. Clements, 3 Colo. 472, 480; 9 Am. & Eng. Enc. Law (2d Ed.) 35; Williams v. Milwaukee Ind. Ass'n, 79 Wis. 524, 48 N.W. 665; Elliott on Roads & Streets (2d Ed.) §§ 113, 114. In City of Denver v. Clements, supra, Thatcher, C.J., distinguishes a statutory from a common-law dedication as follows: 'A statutory dedication operates by way of grant. The law surrounds the act of dedication with all the formalities and solemnities necessary to the creation of a grant. The plat must be signed, acknowledged, and recorded. Without a substantial compliance with the statute by the proprietor of a city or addition thereto, the estate in the streets intended to be conveyed would not pass to the city in trust. * * * A common-law dedication operates by way of estoppel in pais, rather than by way of...

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    • United States
    • Idaho Supreme Court
    • May 1, 1913
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