City of Leadville v. Bohn Mining Co.

• Citation: 37 Colo. 248,86 P. 1038
• Parties: CITY OF LEADVILLE v. BOHN MINING CO. et al.
• Decision Date: 02 July 1906
• Court: Colorado Supreme Court

86 P. 1038

37 Colo. 248

CITY OF LEADVILLE v. BOHN MINING CO. et al.

Supreme Court of Colorado

July 2, 1906

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

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

The facts upon which this controversy arises are, in brief, as follows: The St. Louis Smelting & Refining Company, a corporation, being the owner of certain portions of what is known as the 'Starr Placer,' on April 18, 1879, by its attorney in fact, John E. Maul, filed for record with the clerk and recorder of Lake county a plat known as the 'St. Louis Smelting & Refining Company's addition to the city of Leadville,' with the following indorsement thereon: 'And the said company hereby dedicates and conveys to said city, as public property, the streets and alleys, so as aforesaid laid off, marked and designated as such in said plat.' On May 1, 1879, this plat was presented to the city council and the following proceedings in relation thereto appear upon the records of the council of that date: 'The council met pursuant to adjournment; the following members present: Mayor James, Aldermen Murphy McMillan, Monroe, McComb, Kelly, Cavanaugh. * * * It was next resolved that the plat of town lots made by the St. Louis Smelting and Refining Company, and entitled the St. Louis Smelting and Refining Company's addition to the city of Leadville, be and the same is hereby approved. It was further resolved, that buildings on the south side of State street between the east line of Pine street, and the west line of Harrison avenue, which encroach upon State street, as the same is platted, be suffered to remain as they now are until voluntarily removed by the owners thereof, or until their destruction by fire or other cause, in the case of such removal or destruction and the erection of new buildings in their place, and new buildings shall conform to the street as platted. The two above resolutions were adopted, and on motion of Alderman Kelly, seconded by Alderman Monroe, on a unanimous vote of the council declared on roll call.' On June 30, 1879, James R. Loker as its attorney in fact, filed for record with the clerk and recorded a plat of another portion of the premises with the same indorsement as above quoted. There is no evidence that it was ever filed with the city clerk, and there is no evidence, or offer of evidence or attempt to show, that it was ever presented to the city council for approval, or that the city council ever approved or attempted to approve, or took any action whatever in reference to the approval, of any such plat. The Bohn Mining Company, as a lessee of the St. Louis Company at the time this action was commenced and for some time prior thereto was engaged in mining and extracting ore at a depth of from 400 to 500 feet beneath the surface of the streets and alleys included within the foregoing plats. This mining in no way interfered with the use of the streets by the public as highways, nor with the plaintiff in the use of the same for municipal purposes. The action was brought to recover possession of the ground occupied by the defendants and to restrain them from mining and extracting ore therefrom and for damages for the ore mined.

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

John A. Ewing and Charles Cavender, for appellees.

GODDARD, J. (after stating the facts).

This case presents, among others, the same question that was involved in the case of City of Leadville v. Coronado Co. (recently decided) 86 P. 1034, and under the ruling in that case the plat and map of the Second addition, not having been approved by the city council as required by the statute, must be held inoperative as a statutory dedication, and need not be further considered. In regard to the First addition, it appears that a plat was submitted to the city council and by resolution adopted by unanimous vote of the members elected to the council, accepted, and approved. This plat was filed with the clerk and recorder of Lake county. It is alleged in the complaint that it was also filed with the clerk of the city of Leadville. This allegation is not denied by the answer, and must be taken as true. We shall, therefore, consider the plat of the First addition as having been accepted and recorded, as the statute requires, and shall hold it sufficient to constitute a statutory dedication of the streets and alleys therein designated.

This brings us to the question, what interest or estate in the streets and alleys is vested thereby in the plaintiff? Section 6 of the act of 1877 (Gen. Laws 1877, c. 100) 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.' By virtue of this section, the fee of the streets being vested in the city, it is necessary for the purposes of this case to determine what constitutes a street as therein contemplated. Elliott on Roads and Streets (2d Ed.) § 16 defines a street as follows: 'A street is a road or public way in a city, town, or village.' 'Sec. 17: 'Street' means more than the surface. It means the whole surface and so much of the depth as is, or can be, used, not...