Fortner v. Eldorado Springs Resort Co.

• Citation: 230 P. 386,76 Colo. 106
• Decision Date: 07 July 1924
• Docket Number: 10715.
• Parties: FORTNER et al. v. ELDORADO SPRINGS RESORT CO. et al.
• Court: Supreme Court of Colorado

230 P. 386

76 Colo. 106

FORTNER et al. v. ELDORADO SPRINGS RESORT CO. et al.

No. 10715.

Supreme Court of Colorado

July 7, 1924

Rehearing Denied Nov. 10, 1924.

Department 3.

Error to District Court, Boulder County; Neil F. Graham, Judge.

Suit by Theodore Fortner and others against the Eldorado Springs Resort Company and others. Limited decree for plaintiffs, and they bring error.

Reversed and remanded.

Goss, Kimbrough & Hutchinson, of Boulder, for plaintiffs in error.

T. E Watters and Percy S. Morris, both of Denver, for defendants in error.

CAMPBELL J.

The plaintiffs, who are resident freeholders in Eldorado Springs (which they call a town, and which the defendants say is a summer resort), in Boulder county, brought this action to enjoin the defendant resort company and its officers from constructing a fence or gate across, or in any way obstructing. 'Canon avenue extended,' one of the alleged streets of Eldorado Springs, on which the plaintiffs reside, and which they say has been by the resort company and its predecessors in interest set aside, appropriated, and dedicated, and which now exists as a private way or road for their use and benefit as abutting lot owners and for all other owners of property in Eldorado Springs. The defendants deny that the plaintiffs ever had or now have any such rights as claimed. The court found for the plaintiffs, and entered a decree that they have a private right of way or easement by dedication to travel over and across the ground in controversy. It limited its width to the 'traveled way,' which was narrower than the width of 30 feet claimed by the plaintiffs. Upon such finding the court by its final decree perpetually restrained and enjoined the defendants from constructing a fence across the traveled way, which now exists upon the said strip of land in dispute. The decree then proceeds specifically to provide:

'Nothing herein contained shall operate or be construed as an adjudication that the public has any easement or right of way over or across said strip of land, * * * or that the defendants have no right to exclude the public from passing over or across said strip of land, or charge the public an admission fee or toll charge for doing so, or * * * that the defendants have no right to erect and maintain a gateway or toll gate across the traveled way which now exists upon said strip of land, for the purpose of excluding the public therefrom or collecting a charge or fee from the public for passing over the same, so long as the plaintiffs are permitted to pass over and along said traveled way without charge. And the court doth further find and adjudge that, in so far as the rights of the plaintiffs are concerned, the defendants have the right to erect and maintain a gateway and gate across said traveled way, so long as the plaintiffs are permitted to pass through the same without charge.'

To this decree the plaintiffs sued out this writ of error, and their assignments of error are: (1) The decree is erroneous in permitting the defendants to build a gate across the way. (2) In limiting the right of passage to the traveled way instead of the entire way as claimed by them of 30 feet in width. (3) Limiting to the plaintiffs the use of the way which should be extended to the public generally for all purposes for which streets are used.

The defendants have assigned and filed cross-errors. The only one we deem it necessary to consider is that the court erred in finding and decreeing to plaintiffs 'a private right of way or easement by dedication.' They ask for a dismissal of the action.

The plaintiffs in error, plaintiffs below, say that this decree is inconsistent with itself, for if there was a dedication or grant of an easement by the resort company of a private way the court should not have decreed that the defendants might erect and maintain a gateway across it, so long as the plaintiffs are permitted to pass through without charge. As we think the decree is erroneous, and must be set aside in its entirety, we shall not speculate as to the difficulties that might be encountered in the enforcement of the decree, or express any opinion as to the alleged inconsistency between its different parts.

The plaintiffs lay stress upon their claim that Eldorado Springs is a town, and apparently assume, as the authorities generally declare, that there attaches to a recorded plat of urban property some virtue or quality that does not belong to a plat of rural lands. We do not stop to inquire as to such distinction, for it is entirely clear that Eldorado Springs never has been, and is not now, a town or a municipal corporation of any class, but so far as concerns this case it is to be considered as rural property. Eldorado Springs lies at the mouth of South Boulder cañon in Boulder county. South Boulder creek at this point flows easterly, through a narrow cañon which is inclosed on either side by high and precipitous rock cliffs. In 1905 the Moffat Lakes Resort Company, owner of lands in section 25 of the particular township, desiring to establish and maintain a summer resort thereon, subdivided a portion of the easterly part of the section into blocks and lots, and filed a plat of the same in the office of the county recorder, thereon designating the resort as Moffat Lakes. In 1907 Mr. Barber and his mother, owners of that part of section 30 lying immediately east of and adjoining the platted property in section 25, subdivided the same as the First addition to Moffat Lakes, the plat of which was recorded. After these filings were made it was discovered that the surveyor of the Moffat Lakes Company had wrongly assumed that the common section line between sections 25 and 30 ran due north and south, whereas it was not, in the government survey, drawn as a due north and south line, but as a line about 0~ 32' east of north. The Barbers so designated the true section line on their plat, and their First addition was made to conform thereto, while the Moffat Lakes plat conformed to the imaginary line running due north and south.

Since the Moffat Lakes plat of land on the west extended east only to the assumed imaginary due north and south line, and the Barber plat to the east extended west only to the true section line bearing 32' east of north, there was left unplatted a narrow strip of land between the two sites, which belonged to the Moffat Lakes Company. This company thereupon made and filed a second plat of the same ground that was included in its original filing, preserving the same general description of lots and blocks, and in addition thereto included this narrow strip of land lying between the true and the imaginary section line, which strip was not subdivided, but remained, and was shown by the map to be, unplatted land, and the new plat designated the resort as Eldorado Springs, by which name it has ever since been known. Both proprietors and their successors in interest, in a sense rival resort promoters, from time to time have sold lots in their respective holdings, the instruments of conveyance referring to the respective recorded plats. The defendant resort company and its predecessor have built on their grounds, and have ever since maintained, a hotel, swimming pools, dance pavilions, power house, and other resort attractions, at an expense of more than $100,000. The parties disagree as to the chief object or purpose of the promoters of Eldorado Springs--the plaintiffs contending that it was to sell town lots, and that the resort feature was but an incident; the defendants, on the other hand, asserting that the principal object was the resort feature, and the selling of lots to private individuals merely an incident.

We are of the opinion, from the record before us, that the chief object of the promoters was to establish and conduct a summer resort, and that the sale of lots to private individuals was merely an incident, particularly as in that mountain region only during the summer months do the majority of the residents live there. From the first the owners of the resort charged an admission fee to the general public as a condition to their right of entrance. The enterprise, to be successful, depended upon their ability and their right to charge and collect such admission fees. This right, however, could be secured only by reserving to themselves the right of control of the roads and streets of the platted tract. If they were public highways, over which the public generally could travel without restraint or hindrance, it would be impracticable, if not impossible, for the owners of the resort to realize any income or profit by exacting an admission fee to their grounds. If they put beyone their power the control over the avenues of entrance thereto, necessarily, the evidence shows, the business could not succeed; so that we begin this discussion with the observation that it is unlikely that business men, whose plans contemplated the expenditure of large sums of money, would disable themselves from realizing upon their investment by divesting themselves of the power of collecting tolls from the general public for admission to their grounds. We shall see, as the opinion proceeds, that the promoters did take the most effective, and publicly announced, method to preserve their important right of control.

The plaintiffs' claim is, as we understand it, threefold First, by the filing of their recorded plat the resort company dedicated to the public all streets and ways which were thereon delineated; second, that by virtue of a deed of conveyance of the resort company to the Barbers, the owners of the First addition to Eldorado Springs, the right of travel over such highways was expressly given to the Barbers and their grantees of lots therein; and, third, that the...