Gaines v. City of Sterling

• Decision Date: 20 July 1959
• Docket Number: No. 18342,18342
• Citation: 342 P.2d 651,140 Colo. 63
• Parties: Oren L. GAINES and Louise F. Gaines, Plaintiffs in Error, v. CITY OF STERLING, Colorado, a municipal corporation, Defendant in Error.
• Court: Colorado Supreme Court

Page 651

342 P.2d 651

140 Colo. 63

Oren L. GAINES and Louise F. Gaines, Plaintiffs in Error, v. CITY OF STERLING, Colorado, a municipal corporation Defendant in Error.

No. 18342.

Supreme Court of Colorado, En Banc.

July 20, 1959.

Kreager & Sublett, Sterling, for plaintiffs in error.

Sandhouse & Sandhouse, Sterling, for defendant in error.

SUTTON, Justice.

This is an action involving a boundary dispute. Plaintiffs in error, who are here by writ of error, were plaintiffs below and will be so referred to herein and defendant in error will be referred to as defendant.

Plaintiffs commenced a quiet title action under Rule 105, R.C.P. (Colo.), to adjudicate the location of the common boundary line between their property and property of the defendant. Plaintiffs have registered Certificate of Title No. 2134 to the East Half of the Northwest Quarter of Section 35, Township 8 North, Range 53 West of the 6th P.M. in Logan County, Colorado. Defendant has registered Certificate of Title No. 2851 to the West Half of the Northeast Quarter of the same section. Titles so registered are commonly known as Torrens Act Titles and are expressly provided for by statute in Colorado (C.R.S. '53, 118-10).

Though all of the land involved was not always held by a common owner, it now appears that prior to the acquisition of their respective properties by plaintiffs and defendant both tracts of land were in one common ownership and while so owned in the year 1919 were registered along with other lands under the Torrens Title Registration Act. From the exhibits in the case, though no mention of it is made in the briefs filed in this court, it appears that defendant's title is now subject to two express mineral reservations, and that the owners of such reservations were not joined as parties in this action. Obviously no decree of the trial court or of this court could affect the rights, if any, of such parties to minerals which might be under the disputed area in question. Compare Geiger v. Uhl. 1932, 204 Ind. 135, 180 N.E. 10; Elam v. Hickman, 1915, 166 Ky. 135, 179 S.W. 17; Falvy v. Sellers, 1928, 166 La. 207, 116 So. 853.

After the case was at issue in the trial court defendant moved to have a Commission appointed under C.R.S. '53, 118-11-1 et seq. Plaintiffs resisted this, urging the method was inapplicable to Torrens Act Titles. However, the trial court correctly concluded that Rule 105 did not apply, and that the complaint stated a cause of action under the statutory proceedings for establishing disputed boundaries, and appointed Cecil J. Osborne, a registered professional engineer and land surveyor, as Commissioner to locate the correct corners and boundary line.

Plaintiffs contend that under the Torrens Act a title once registered thereunder becomes 'forever binding and conclusive upon all persons' (C.R.S. '53, 118-10-30) and may not be reopened except as provided in 118-10-31, which methods of reopening do not apply to this situation. We point out that while construction of plaintiffs' deed and its legal effect are questions of law, the location of a boundary line is usually a question of fact, thus the Torrens Act can have no application to the settlement of a boundary dispute arising after registration of title whether between two registered owners or a Torrens holder and a non-registered owner. This, of course, would not be true if the boundary question had first been raised in the proceedings to register the title for it could be properly determined at that time too. See Balzer v. Pyles, 1932, 350 Ill. 344, 183 N.E. 215.

The evidence discloses that Section 35 is one of those parcels of land which is not standard in size, and that all original four section corners, as well as the original quarter section corners in question, had been obliterated, and at the time of suit were unmarked as to the original government survey. This does not mean that the section corners were 'lost' corners, however, in the sense that they could not be relocated with some degree of accuracy by recognized natural or permanent monuments, or even by re-survey from township lines some miles away. See Mason v. Braught, 1914, 33 S.D. 559, 146 N.W. 687, at page 689.

There is an old fence in the north half of the section running north and sough approximately 80 feet west of where plaintiff contends the properties should be divided, and there is now a new fence generally parallel to the first fence and some 80 feet east therefrom which plaintiffs contend is the correct line. The latter fence was erected shortly before this action was commenced by defendant after its city manager and engineer had agreed with plaintiffs that the old fence was not the correct line. These city officials were later overruled by the defendant, and the old fence, which had been torn down in the meantime, was then replaced and resistance offered by defendant to plaintiffs' attempt to claim land east thereof.

After the Commissioner's report was lodged with the trial court pursuant to C.R.S. '53, 118-11-8, plaintiffs filed their exceptions thereto. Defendant filed its objections to the exceptions being heard, asserting they were not lodged in time. The trial court overruled defendant's contention and proceeded to hear the objections to the report as well as other evidence adduced by plaintiffs. Defendant in its answer brief fails to assign as cross error the action of the trial court in proceeding with the hearing, thereby waiving its right to a determination of that issue here.

Following trial the court held that the Commissioner's report more nearly coincided with the original government survey than the two surveys of plaintiffs, and proceeded to apportion the strip in dispute by holding that plaintiffs own that portion which lies east of the old fence and west of a line drawn from a point which is 30 feet east of the old fence beginning at their southeast corner, said line running thence northerly to where the old fence line intersects the north line of section 35.

Plaintiffs' objections to the trial court's judgment can be summarized as:

1. The decree of the trial court results in the city acquiring title to plaintiffs' lands by prescription which is not possible as against a registered title.

2. The court committed error in appointing the Commission under C.R.S. '53, 118-11.

3. The court erred in adopting the report of the Commission instead of the plaintiffs' surveys.

As to the first objection, we have already commented on the procedure applicable. We have also pointed out that the appointment of the Commission was necessary and proper.

The third objection, however, has merit, as will hereafter appear.

The record discloses that the Commissioner appointed by the trial court proceeded to the nearest original governmental markers located some three miles away and then surveyed in to what he determined to be the north quarter corner of section 35. He then correlated this with an old irrigation filing and other monuments, including some grown over road ruts in the south half of section 35, to arrive at what he concluded was the original dividing line between the two properties in question. His 'Plat of Pertinent Survey Data To Divide The W 1/2 From The E 1/2 Sec. 35 T 8 N R 53 W 6 P M.' is defendant's exhibit No. 1. The surveyor's certificate thereon is replete with such unacceptable wording as '* * * As shown above by superimposing a theoretical section from the returned government distances from the east side of the Township we find such a section as respects the line in question does intercept the old line and that fence which was probably on the west side of an old road did start and continue north for a half mile very nearly on such a line. At that time in all probability, the fence was continued north from the end of the road and necessarily would have deflected to the east if it was established at a corner * * *.' (Italics added.)

Defendant's exhibit one showed a final division of the section (and we note that none of the other owners of the section were parties to this action) apportioning the west half of the section 2,578 feet along the north line and 2,691 feet along the south line and apportioning the east half of the section 2,740 feet along the north line and 2,643 feet along the south line. Thus the disparity between the amount awarded plaintiffs as against that given to defendant could also result in a disturbance of other long established land titles in section 35. It also runs afoul of the rule of law which provides that no state can make any rule or law providing for apportionment contrary to Acts of The Congress. See Knight v. Elliott, 1874, 57 Mo. 317; Vaughn v. Tate, 1877, 64 Mo. 491; Cordell v. Sanders, 1932, 331 Mo. 84, 52 S.W.2d 834.

Plaintiffs' evidence consisted of two surveys also prepared by registered professional engineers and land surveyors. Both of these surveyors proceeded to locate the lost corners of section 35 and then applied the rule of single apportionment within the section. This arrived at a north-south line that is the approximate line where the new or easternmost fence is now located, and equally divided the north half of the section from north to south.

Commissioner Osborne testified that he at no time during his study and survey as the court appointed Commissioner established the exterior corners of section 35 to his satisfaction and that he located his proposed dividing line without reference to such corners. It thus is apparent that the Commissioner appointed by the trial court was in error in proceeding upon the theory that the property line in dispute should be based upon his theoretical reconstruction of the original government survey of the center line of section 35. This error is further magnified when the evidence discloses, as it did here, that all three surveyors agreed (and there was no evidence to the contrary) that the original government survey called for equal subdivisions within the...