Denver & R.G.R. Co. v. Doelz

• Decision Date: 05 July 1910
• Citation: 49 Colo. 48,111 P. 595
• Court: Colorado Supreme Court
• Parties: DENVER & R. G. R. CO. v. DOELZ.

111 P. 595

49 Colo. 48

DENVER & R. G. R. CO. v. DOELZ.

Supreme Court of Colorado, En Banc.

July 5, 1910

Rehearing Denied Nov. 14, 1910.

Appeal from District Court, Ouray County; Theron Stevens, Judge.

Action by Charles F. Doelz against the Denver & Rio Grande Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Wolcott Vaile & Waterman, E. N. Clark, Carl J. Sigfrid, and Thos. L Philips, for appellant.

Story &amp Story, for appellee.

MUSSER J.

Plaintiff brought this action in 1904 to recover the possession of certain land on which a portion of the defendant company's roadbed and track was constructed and which formed the necessary right of way for the operation of defendant's line of railway. In 1887 one Fry, who claimed the land as a part of a mining placer, executed and delivered to defendant a deed for the right of way for an expressed consideration of $400. The defendant, in good faith, entered upon the land, constructed the roadbed and track, and ever since as early as 1888 has been running its trains thereon in the regular prosecution of its business as a common carrier. At the time defendant obtained its deed, one Hafer also claimed the land. Subsequently, contest proceedings were had in the United States Land Office between Hafer and Fry, which terminated in favor of the former, and a United States patent was issued to him for 160 acres, which included the land in controversy. In 1896 Hafer conveyed the 160 acres to the plaintiff without excepting the right of way.

In one of its defenses, the defendant, by proper allegations, alleged facts which, if proved, would give it the benefit of section 6 of the Session Laws of 1893, p. 328 (section 4089, Rev. St. 1908), which reads as follows: 'Every person in the actual possession of lands or tenements, under claim and color or title, made in good faith, and who shall, for seven successive years, continue in such possession, and shall also, during said time, pay all taxes legally assessed on such lands or tenements, shall be held and adjudged to be the legal owner of said lands or tenements, to the extent and according to the purport of his or her paper title.'

A railroad company is entitled to the benefit of this statute for the protection of its right of way. Keener v. U. P. Ry. Co. (C. C.) 31 F. 126. The defendant, in its brief, contends that it possessed and had performed all things necessary to give it the benefit of this statute of limitations. In his answering brief, the plaintiff does not contend that the claim and color of title, good faith, and possession shown on behalf of defendant are insufficient to satisfy the statute as to each of these elements, but claims that it was not shown that defendant, for seven successive years, had paid all taxes legally assessed on the premises. So that the only question raised in the briefs on the sufficiency of the evidence to establish the defense of the statute is as to the payment of taxes. It was proven that the defendant paid all the taxes assessed against it as a railroad, which included the assessment of the right of way in question, for more than seven successive years prior to the commencement of the action and from and including the year 1896. It was also proven that the 160 acres of the plaintiff, which included the right of way, were assessed by the assessor of the county for the taxes of the years 1899, 1901, and 1902, without excepting from the assessment the right of way in question, and the plaintiff, for these years, paid the taxes on his land as assessed in each of those years before the defendant paid its railroad taxes. The plaintiff contends that this evidence shows that the defendant did not pay all taxes legally assessed. If it be assumed that the assessment of plaintiff's land, by the assessor, in this manner, was an assessment of the right of way, and the payment of the taxes by plaintiff as a payment of taxes on the land, including the right of way, then it appears that the right of way was doubly assessed, once by the state board of equalization, as provided by statute for the assessment of railroad property, and once by the assessor of the county, and that both parties paid the taxes in each of these years. Which one paid the taxes legally assessed for those years? Section 3807, Mills' Ann. St. (section 2251, Gen. Laws 1877), provides that the state board of equalization shall make assessments upon railways within the state, and shall include the right of way, roadbed, bridges, etc. It was under this section that defendant's railroad was assessed up to the time of its assessment under the revenue act of 1902 (Laws 1902, c. 2). The latter act likewise similarly provides that the state board of equalization shall assess all the property used or controlled by railway companies with certain exceptions not important here.

In Carlisle v. Pullman P. C. Co., 8 Colo. 320, 7 P. 164, 54 Am.Rep. 553, this court, referring to section 3807, Mills' Ann. St., at page 326 of 8 Colo., at page 167 of 7 P. (54 Am.Rep. 553), said: 'This section provides for the assessment and taxation of all the property, real and personal, 'owned,' 'belonging to,' and 'used' by railroad corporations in the operation of their roads in this state. The railroad officials are required to make full returns of all such property; regulations are prescribed for its valuation and taxation; and the powers and duties of the revenue officials, state and county, with respect to this class of property, are distinctly defined. This section was evidently intended to cover the entire subject of the taxation of railroad property, and to leave nothing used by these corporations out of the list of taxable property, regardless of the condition of the title, and whether the line of railroad lay wholly within the state, or partly within and partly beyond its limits.' And on pages 328 and 329 of 8 Colo., on page 169 of 7 P. (54 Am.Rep. 553): 'As we construe section 2251, the county officials are authorized to assess the real estate of these corporations, together with the improvements thereon, 'not including any portion of the road itself,' situated in their respective counties, and they are likewise authorized to levy taxes upon their pro rata distribution of the entire assessment of the remainder of the property owned and used by the railways, the jurisdiction to assess which is conferred upon the state board of equalization. The entire road within the state, with all the rolling stock and personal property of every kind entering into its equipment, is to be assessed as a whole, and this is to be done by the state board. They are to value the road at a uniform rate per mile of main track, and add to the value of each mile a pro rata distribution of the whole valuation of the rolling stock and other personalty.'

This decision of our own court compels the conclusion that the right of way in question was to be assessed by the state board of equalization, and that the taxes paid by the defendant company were levied or assessed upon a valuation or assessment of the property legally made, and were therefore legally assessed, and those paid by the plaintiff were not legally assessed because they were levied upon a valuation or assessment not legally made. A like conclusion was also reached by the Supreme Court of Illinois, under similar assessment statute and substantially the same facts. C., M. & St. P. Ry. Co. v. Grant, 167 Ill. 489, 47 N.E. 750. The defense of the statute of limitations pleaded by defendant was fully established.

The judgment of the lower court is therefore reversed, and the cause remanded, with instructions to enter judgment for defendant.

Reversed and remanded.

STEELE, C.J., and BAILEY and WHITE, JJ., concur. GABBERT, J., concurs specially. CAMPBELL and HILL, JJ., not participating.

GABBERT, J. (specially concurring).

While I concur in the conclusion of the majority, I express no opinion on the proposition on which it is based, but reach the same conclusion from the facts which I shall state, and upon a proposition fully argued by respective counsel namely, that plaintiff's grantor could not maintain any action except for the value of the land; and that plaintiff took the land subject to the burden of the railroad, but cannot maintain an action for damages because such right did not pass with the land.

Appellee Doelz, claiming to be the owner of a strip of land occupied by the appellant as a right of way for its railroad, brought suit against the appellant to recover the possession of such land and damages for the alleged wrongful taking and withholding possession thereof by the latter. On the issues made by the pleadings, a trial to the court resulted in a judgment in favor of the plaintiff, to the effect that he was the owner of the strip of land in controversy, entitled to the possession thereof, that his damages for the wrongful withholding was the sum of $137.20, and that the issuance of a writ of possession be stayed for a period specified in order to enable the defendant to institute condemnation proceedings for the land in controversy, if so advised. The material facts, so far as necessary to consider, are substantially as follows: In September, 1884, the premises involved were embraced in a location upon the public domain, known as the Pericles placer. In 1887 the defendant purchased from the holder of the record title to this placer the strip involved, at which time it had already located and partially constructed its line of railway thereover, which it completed before the end of that year. Before this purchase, one Hafer had claimed the land embraced in the placer either under the homestead or pre-emption laws. A contest between Hafer and the owner of the...