Goerke v. Town of Manitou

• Decision Date: 12 January 1914
• Citation: 25 Colo.App. 482,139 P. 1049
• Parties: GOERKE et al. v. TOWN OF MANITOU.
• Court: Colorado Court of Appeals

139 P. 1049

25 Colo.App. 482

GOERKE et al. v. TOWN OF MANITOU.

Court of Appeals of Colorado

January 12, 1914

Rehearing Denied April 13, 1914

Appeal from District Court, El Paso County; J.W. Sheafor, Judge.

Action by the Town of Manitou against Ida Goerke and another, for themselves and the sole heirs of and successors in interest to Paul Georke and others. From a judgment for plaintiff defendants appeal. Reversed and remanded, with directions.

Benjamin Griffith, of Grand Junction Archibald A. Lee, of Denver, and J.F. Sanford, of Colorado Springs, for appellants.

Robert S. Ellison, C.W. Dolph, and Vanatta & Dolph, all of Colorado Springs, for appellee.

KING J.

This action was brought by the town of Manitou, a municipal corporation, in ejectment to oust the defendants from and to obtain possession of real estate described in the petition as "the east two-thirds of the famous scenic rock commonly known as the 'Balanced Rock' and the west half of the famous scenic rock commonly known as the 'Steamboat Rock,' " and a strip of land adjoining the last-named rock upon which is situated a one-story frame building, all of which was alleged to be within the boundary lines of and a part of a certain public street of the plaintiff commonly known as the Garden of the Gods road alleged to be 60 feet wide, 30 feet of which lay on each side of the center line of the said street, to which plaintiff claimed title in fee simple, and all of which was in the possession of the defendants, who are alleged to wrongfully and unlawfully withhold the same. All the allegations of the complaint, except defendants' possession, were put in issue by the answer, in addition to which affirmative allegations were made, in the nature of new matter, assigning equitable reasons why the plaintiff should be estopped from claiming possession of the roadway or of the rocks, or of improvements placed upon said premises by the defendants or their grantors. Defendants prayed for affirmative relief. Upon the verdict of a jury, the decree of the court was rendered in favor of the plaintiff, adjudging that it was the owner in fee of all the said premises described as heretofore, and entitled to possession thereof. The court submitted the case to the jury upon instructions which required them to find for the plaintiff if they found from the evidence, either that the road had been established by the board of county commissioners substantially in compliance with the law at that time in force, or if they found that the road had been used as such by the public uninterruptedly for a period of 20 years or more, and that if under either theory they should determine that a road had been established, such roadway must be held to be 60 feet in width, 30 feet on each side of the center line; and if the premises described in the complaint were within this 60-foot strip, the plaintiff would be entitled to a verdict. In so instructing the jury, we think the court erred, for reasons which we shall state hereafter.

1. Plaintiff attempted to show that the roadway in dispute was laid out by valid action of the board of county commissioners, and also to show a road by user, and in so doing introduced certain records of the board of county commissioners pertaining to a road through the Garden of the Gods. These records were first identified by Irving Howbert who was the county clerk and clerk of the board of county commissioners at the time the proceedings of the board of county commissioners were had. The petition for the road was not offered. The records offered and received were from the minutes of the board, as follows: (1) An order of the county commissioners dated June 12, 1873, reciting that: "The petition of Young, Wilson, Gatchell and others, asking that a county road be laid out, running from a point on the county road in section 27, town 13, range 67, through the Garden of the Gods to a point on the county road near Von Hagen's west line, was then read. The commissioners present having examined said proposed road, and having received assurances from the parties interested that they would open said road at their own expense, and would pay all damages that might be assessed by reason of the location thereof, and all expenses of viewing, surveying, and locating said road, therefore it was decided by the board to appoint viewers to locate said road. And on motion it was ordered that Henry Burr, F.E. Roberts, and John Wolfe be and are hereby appointed viewers to view and locate the road prayed for by Young, Wilson, Gatchell, and others, and to assess any damages that may accrue to the owner of any lands over which said road may pass, and June 21, 1873, be set apart as the day of their meeting for such purpose, and that said viewers report to the board at the next meeting." (2) An order made June 28, 1873, reciting that the board then heard the report of the viewers appointed at the last meeting to view and locate the county road as prayed for by Young, Wilson, and others, the report being as follows: "To the Honorable Board of County Commissioners of El Paso County, Colorado: The undersigned viewers appointed to view the road from near Manitou through the Garden of the Gods to Camp creek would report that they have completed their duty and located the road as laid down on the accompanying plat, and find that the property through which it runs is benefited more than it is injured, and therefore do not find any damages due to any one by reason of the location of said road." (3) An order of the board in the following language: "On motion the said report was received, and it was ordered that said report, and the plat accompanying the same, be placed on file. Thereupon the board ordered that the road running from near Manitou through the Garden of the Gods to Camp creek, as located and platted by the viewers aforesaid, be and the same is hereby declared a county road." The plat could not be found, and neither Howbert nor the county clerk at the time of the hearing could give any account of it.

From this statement it will be observed that there was nothing in the records from which the road attempted to be laid out could be identified, neither termini nor general course being given. Nor does it appear that the road located was the road petitioned for. There is no similarity in the description except for the words "through the Garden of the Gods." Therefore plaintiff was compelled to attempt to identify the road, which the county commissioners had tried to lay out with the road in litigation, by evidence aliunde the record. We think it failed. Mr. Howbert, Henry McAllister, and others, who resided in the county in 1873 and subsequently, testified that a roadway which the county commissioners took over (presumably by the order quoted) was then being built and was later completed, so far as it was completed at all, by a private company; that it ran between Balanced Rock and Steamboat Rock, and from thence to or in the direction of the inhabited portion of the town of Manitou, at that time unincorporated. There the identification ended. But neither at that time nor at the time of the trial was any platted portion of said town or addition thereto nearer than a quarter of a mile of said rocks, and there is nothing to show that the town of Manitou had platted said road as a street or adopted it as a street, or recognized it as such, except by doing some work thereon from time to time, as also did the county and private individuals. The land of the defendants was included within the corporate limits of the town of Manitou when incorporated in 1876, and we assume that after that time the town, for the public, had all such rights therein as the county had acquired.

If the proof made is sufficient to show a road established by the act of the county commissioners in 1873, and to identify it as the road involved herein, it might be held, in the absence of an order of the board of county commissioners, fixing a different width, that the road so laid out was 60 feet in width, which would seriously complicate matters with respect to the rights of the parties to the possession of the scenic rocks, which are in fact the subject of the controversy, however that fact may be veiled. The action is in ejectment, and the plaintiff must rely upon the strength of its own title, and must establish it by sufficient proof. In doing this it had to rely, and did rely, upon certain proceedings of the board of county commissioners while acting in a judicial capacity.

Boards of county commissioners when engaged in hearing matters respecting the opening of roads and streets, and assessing benefits and damages, are exercising judicial functions, and are regarded as courts of special and limited jurisdiction. Elliott on Roads & Streets (2d Ed.) §§ 272, 284; Doctor v. Hartman, 74 Ind. 221; Stone v. Augusta, 46 Me. 127; Chicago, etc., Co. v. Chamberlain, 84 Ill. 333; Northern P.T. Co. v. Portland, 14 Or. 24, 13 P. 705.

And the weight of authority is that the jurisdiction of such tribunals must appear on the face of the record, both as to jurisdiction of the subject-matter and of the persons of those whose land is sought to be appropriated. People v. Brown, 23 Colo. 425, 48 P. 661; Loucheim v. Hemsley, 59 N.J.Law, 149, 35 A. 795; Elliott on Roads & Streets, § 285.

There is a diversity of opinion as to whether plaintiff, in relying upon a road by statutory proceedings, must prove the jurisdiction of the board, or whether, upon a showing of an order locating and declaring a road open, the burden of showing that jurisdiction was not obtained is upon the person asserting the invalidity of the judgment. But it is our opinion that in this state the burden of showing jurisdiction is, and ought to be, on the...