City of Pueblo v. Budd

• Decision Date: 16 April 1894
• Citation: 19 Colo. 579,36 P. 599
• Parties: CITY OF PUEBLO v. BUDD et al.
• Court: Colorado Supreme Court

36 P. 599

19 Colo. 579

CITY OF PUEBLO v. BUDD et al.

Supreme Court of Colorado

April 16, 1894

Error to district court, Pueblo county.

Ejectment by Anna Budd and John H. Elspass against the city of Pueblo. To a judgment for plaintiffs, defendant brings error. Judgment affirmed.

This is an action instituted by defendants in error to enjoin the city of Pueblo, its officers and agents, from entering upon and opening up a street over a certain lot of land in the city of Pueblo. The case is brought before us upon the complaint, answer, and demurrer to the answer. The complaint states, in substance: That on the 19th day of January, 1869 by virtue of an act of congress approved March 2, A. D. 1867 entitled 'An act for the relief of the inhabitants of cities and towns upon the public lands,' Mark G Bradford, then county judge of the county of Pueblo, state of Colorado, entered certain lands as a town site of the town of Pueblo, and thereunder such proceedings were had and taken that on the 5th day of August, A. D. 1869, the United States granted, by patent, unto the said judge of Pueblo county aforesaid, in trust for the several use and benefit of the occupants thereof, according to their respective interests and to his successors in office, the land comprising said town site, together with all rights, privileges, immunities and appurtenances, of whatsoever nature, thereunto belonging, in trust for the several use and benefit of the occupants thereof, according to their respective interests. That in the year 1867, and long prior to said entry and issuance of patent, Guilford C. Budd and Anna Budd, his wife, who were then and there inhabitants of the town of Pueblo, entered upon, occupied, and held exclusive possession and enjoyment of a certain piece and parcel of land included within said town site, and described as follows: 'Commencing at a point on the east line of what is now Santa Fe avenue, in said city of Pueblo, twenty-five feet north of the south line of Third street, as said Third street is platted upon the plat of the town of Pueblo on file in the office of the county clerk and recorder of said Pueblo county, which said plat was prepared by H. M. Fosdick for the probate judge of said county, who entered the lands shown upon said plat as a town site for the town of Pueblo; thence north along the line of said Santa Fe avenue twenty-two feet; thence east one hundred and twenty feet; thence south twenty-two feet; and thence west one hundred and twenty feet to point of beginning,--being in form a right-angled parallelogram.' That the said Guilford C. Budd and Anna Budd erected an adobe dwelling and shop thereon, and erected a fence around the remainder thereof not actually covered by the dwelling and shop aforesaid, and occupied and continued in the peaceful and undisturbed possession of said premises, buildings, and improvements as a residence, work place and yard, and as inhabitants and occupants of said town and city of Pueblo, continuously until the year 1885, when said buildings, by wear and tear and the action of the elements, became demolished; and that the said Anna Budd, since the demolition of the buildings aforesaid, up toJanuary 20, 1890, continued to exercise dominion over the whole of said premises; and that the acts in exercising such dominion were open and notorious; and that from the 1st day of January, 1874, to January 1, 1890, no taxes were legally or otherwise assessed upon said lands and premises. That the said Guilford C. Budd departed this life in the year 1885, leaving, as his sole heir at law, the said Anna Budd, and that all the debts against his estate have been paid by the administrator thereof. That on the 2d day of July, 1887, the said Anna Budd sold and conveyed an undivided one-third of all her title to John H. Elspass, her coplaintiff in this action; and thereupon said John H. Elspass, acting for her and with her consent, entered into and upon said premises, and erected thereon and around thereof a good and substantial fence at a cost of $25, and plaintiffs continued to hold and occupy the same. That ever since the year 1867 the plaintiffs and their predecessor and grantor have been in the peaceful and undisputed, and in the actual, open, uninterrupted, and exclusive, possession and occupation of the whole of the parcel of land hereinabove described, holding adversely to all persons since the said last date. That said Mark G. Bradford, county judge aforesaid, accepted said trust, but has never executed, nor have any of his successors in office executed, the trust as to the land hereinabove described; and the plaintiffs, as successors of the first occupant of the land, are the cestuis que trustent under said grant from the United States. That, by mutual consent of the inhabitants and occupants of the land entered as such town site, streets and highways were formed and used by the public as such. One of such streets and highways bounding the tract above described on the west, now called 'Santa Fe Avenue,' has been used as a street until the present time; and plaintiffs aver that at no time since the settlement and occupation of said public domain was the tract hereinabove described ever used by the inhabitants and occupants as a street, or regarded by such inhabitants as a street; nor has there ever been any acquiescence on the part of any of the actual occupants, since the settlement and occupation of said public domain to the present time, in the use of said tract as a street. That the plaintiff in error, the city of Pueblo, now is, and ever since the year 1880 has been, a municipal corporation, created and existing under and by virtue of the laws of the state of Colorado. That the said plaintiff in error, with its agents and assistants, did, on the 1st day of February, 1890, unlawfully break and tear down said fence of defendants in error, erected as aforesaid, and did enter upon said premises to destroy the fence upon and around said lot for the purpose of converting said premises into a street and public highway of said city, and still threatens to continue to lay open as a public highway and street the said premises, and deprive plaintiffs of the use, possession, and enjoyment thereof, without tendering or making any compensation therefor; prays that the plaintiffs be decreed to be entitled to the exclusive possession of the lot above described, and that the defendant, the city of Pueblo, its officers and servants, be perpetually enjoined from in any manner entering upon said premises, or in any manner interfering with plaintiffs' exclusive use and occupation, enjoyment, and possession thereof.

A demurrer was filed to the complaint and overruled. Thereupon defendant answered, averring, inter alia: That the said Mark G. Bradford, probate judge, for the purpose of carrying out and performing the trust in him vested, and conveying to the actual occupants of the said lands the portions and parcels to which they were entitled according to their respective interests, caused a map or plat of said land to be made known as the 'Fosdick Plat,' and thereby subdividing and laying out said lands in blocks, lots, streets and alleys; and that said lots, blocks, streets, and alleys, as indicated on said plat, were made substantially as the same were laid out and used by the inhabitants of said premises before and at the time the said plat was made; and caused said plat to be filed in the office of the clerk and recorder of said county of Pueblo, as part of the records thereof. That, according to said Fosdick plat, the streets of said town running in a general east and west direction were known and numbered as Front, Second, Third, Fourth, Fifth, Sixth, Seventh, and Eighth streets. That said streets were parallel to each other, and laid out at regular distances, and crossed the other streets of the city at right angles, and made a regular system of streets for the accommodation of travel and cade going eastward and westward in said town of Pueblo. That said Third street was laid out and used as a street, at the time said plat was filed as aforesaid, from the west line of said town of Pueblo up to its point of intersection with Santa Fe avenue, and also from Bradford street, a parallel street to Santa Fe avenue, and distant therefrom about 800 feet, to the east line of of said town of Pueblo. That between said Santa Fe avenue and said Bradford street, as indicated on said Fosdick plat, there existed a line of high, precipitous bluffs, composed largely of shale and other stone, laying about 50 feet above the grade of said Third street, and that said line of bluffs crossed, at nearly right angles, the said Third street, and all the streets running east and west, as described. That travel could not pass over said bluffs until the same were graded and leveled, which could only be done at a cost of many thousands of dollars. That the premises described in plaintiffs' complaint are a part and parcel of Third street as laid out and described in said Fosdick plat, and are situate wholly within the lines of said street between Santa Fe avenue and Summit street; and that said street has not been changed or altered in any particular whatsoever, in so far as its course, direction, width, and distance are concerned, and in this particular exists as laid out. That defendant, on information and belief, denies that one Guilford C. Budd entered upon and took possession of the premises described in the complaint herein in the year 1867, and admits that in the year 1871 the said Budd erected a small house thereon, and used the same until the year 1885, since which time the said described premises have not been occupied by said plaintiffs, or any one in their behalf, save and except in this particular: That on or about the year 1887 ...