Dyke v. Whyte

• Decision Date: 15 February 1892
• Parties: DYKE v. WHYTE.
• Court: Colorado Supreme Court

29 P. 128

17 Colo. 296

DYKE v. WHYTE.

Supreme Court of Colorado

February 15, 1892

Appeal from district court, Lake county.

Action by William Dyke against D. McKellar Whyte to recover land sold for taxes. From a judgment for defendant, plaintiff appeals. Affirmed.

S J. Hanna, for appellant.

A T. Gunnell, for appellee.

J S. Jones and A. S. Blake, amici curiae.

ELLIOTT J.

This is a civil action in the nature of ejectment. The plaintiff, Dyke, claims title as owner in fee of the premises through sundry mesne conveyances from the United States. The defendant, Whyte, claims by virtue of a sale of the premises for taxes. There is no controversy as to the original validity of the plaintiff's title. The issue of the case turns upon the effect to be given to certain deeds and other documentary evidence produced by the parties respectively.

Two principal objections are urged against the validity of the tax-title relied upon by defendant-- First, that the property in controversy was not subject to taxation for the year 1880; second, that, if the property was subject to taxation, the proceedings under the revenue laws of the state, as shown by the evidence, were not effectual to divest the plaintiff of his title.

1. Was the land subject to taxation for the year 1880? The plaintiff in his complaint describes the land as follows: 'Lot numbered one (1) in block numbered four (4) in Stevens & Leiter's subdivision of the city of Leadville, being a part and portion of U.S. survey No. 271, situated in the county of Lake, and state of Colorado.' The United States patent introduced in evidence by plaintiff shows, inter alia, that the land of which the lot in controversy forms a part was entered and paid for in July, 1878, by Stevens & Leiter, as their placer mining claim, being mineral entry No. 154 in series of United States land-office at Fairplay, Colo., designated by the surveyor general of Colorado as survey No. 271, embracing a portion of the unsurveyed public domain in California mining district, Lake county, Colorado, containing 298.33 acres. The patent bears date November 5, 1878. There was also introduced in evidence a deed of general warranty dated February 27, 1879, by Stevens & Leiter, conveying the lot in controversy to one Frank Koebrich, and describing the same as 'Lot one (1) in block four (4) in Stevens & Leiter's subdivision,' etc., and referring to 'a map of said subdivision being filed in the recorder's office of said Lake county, Colorado.' There was also read in evidence a deed of general warranty by said Koebrich, conveying said lot to the plaintiff.

Upon this evidence it is claimed that the lot was not subject to taxation for the year 1880, basing the claim upon the provision of the state constitution, (article 10, § 3,) exempting from taxation 'mines and mining claims bearing gold, silver, and other precious metals' for a period of 10 years from the adoption of the constitution. There was no evidence showing that the lot in controversy was in fact a mine or mining claim, or a part thereof, or that a mine or mining claim was located in whole or in part upon or within said lot; nor was there any evidence that said lot during the year 1880, or at any time, bore or produced any gold or silver or other precious metals. It is true the patent recites that the whole premises described therein (nearly 300 acres) were entered and paid for as a placer mining claim, and that the same was a mineral entry. But the evidence also shows that the land thus patented, or a part thereof, including the lot in controversy, was, within a few months after the issuance of the patent, made a subdivision of the city of Leadville; a map of such subdivision showing its division into blocks and lots being filed in the recorder's office of the proper county. These circumstances clearly indicate that, whatever may have been the character of the entry or of the land originally, the lot in controversy certainly was not, during the year 1880, exempt from taxation as a mine or mining claim 'bearing gold or silver or other precious metals.' Claims of exemption from taxation are to be carefully scrutinized. See County Com'rs v. Colorado Seminary, 12 Colo. 497, 21 P. 490, and authorities there cited.

2. The defendant introduced in evidence two deeds,--the first to show that plaintiff had been divested of his title in pursuance of the revenue laws of the state; the second to show that he, the defendant, had acquired the title. The first of these deeds, commonly called a 'tax-deed,' was executed by the county treasurer of Lake county to the county of Lake, its successors and assigns. The deed describes the property in controversy, and recites among other things, that the same was subject to taxation for the year 1880, and that at the regular tax-sale held in said county in May, 1881, the property was bid off for said county by the treasurer for the amount of the taxes of 1880 and the interest and costs thereon. See act concerning 'Assessment and Collection of Revenue,' approved March 20, 1877, (Gen. Laws, p. 741;) also, amendment thereto, (Sess. Laws 1879, p. 155;) also, further amendment, (Sess. Laws 1885, p. 323.) The second deed is an ordinary quitclaim deed executed by the ...