Hanlon v. Hobson

• Decision Date: 17 November 1897
• Citation: 24 Colo. 284,51 P. 433
• Court: Colorado Supreme Court
• Parties: HANLON et al. v. HOBSON.

51 P. 433

24 Colo. 284

HANLON et al. v. HOBSON.

Supreme Court of Colorado

November 17, 1897

Error to district court, Pueblo county.

Action by George H. Hobson against Patrick N. Hanlon and another. Judgment for plaintiff. Defendants bring error. Affirmed.

John R Dixon, for plaintiffs in error.

J. H McCorkle, for defendant in error.

CAMPBELL J.

The plaintiff below (defendant in error here) brought his action for the recovery of the possession of certain real property. To the judgment rendered for the plaintiff and against them the defendants below prosecute this writ of error.

The land in dispute is included within the original town site of the city of Pueblo, entered in 1869 by the probate judge of Pueblo county under the provisions of the act of congress of March 2, 1867, for the relief of the inhabitants of cities and towns upon the public domain. It consists of two parcels,--one lying on the east and the other on the west side of what was at the time of the entry the Arkansas river. Since then, by a change of its location, the river flows in another channel. The old bed thereof is the subject of this controversy. Through a deed of conveyance to J. G. Robinson, executed by the probate judge in pursuance of the town site act, and laws of the then territory of Colorado passed in pursuance thereof, and by divers mesne conveyances from Robinson down to the plaintiff, the latter claims title to the parcel on the west side of the river; and by a deed to Joseph Abrahams, executed by the same authority, and by divers deeds from Abrahams to him, the plaintiff claims title to the parcel east of the river. These two titles became vested in the plaintiff, and as they were respectively bounded, as it is said, by and on the river, the position assumed by the plaintiff is that each tract extended to the thread or center of the river, and, therefore, that he now owns the old bed. The errors relied upon and argued by counsel for plaintiffs in error sufficiently explain their position. They are: First, that the deed from the probate judge to Robinson is absolutely void upon its face; second, that a proper construction of the Robinson and Abrahams deed will not include the bed of the river; third, that, if any part of the bed of the river did pass to Abrahams, it did not pass to the plaintiff below, since, in the deed from Abrahams, the latter expressly excluded it.

The plaintiffs in error were not occupants of the town site at the date of entry. They do not deraign title directly from the probate judge, or through any one who was a beneficiary under the trust conferred upon that officer. Nor do they assert a title superior or adverse to that emanating from him. They are what is popularly known as 'squatters.' In view of these admitted facts, plaintiffs in error are precluded from raising, to the acts of the probate judge in the execution of his trust, many of the objections which are argued in their brief. See Murray v. Hobson, 10 Colo. 66, 13 P. 921; Mills v. Hobson 10 Colo. 78, 13 P. 927; Anderson v. Bartels, 7 Colo. 256, 3 P. 225; Chever v. Horner, 11 Colo. 68, 17 P. 495; Smith v. Pipe, 3 Colo. 187; Railroad Co. v. Smith, 5 Colo. 160; Cook v. Rice, 2 Colo. 131; City of Denver v. Johnson (Colo. App.) 46 P. 621; City of Pueblo v. Budd, 19 Colo. 579, 36 P. 599; Laughlin v. City of Denver, 24 Colo.--,50 P. 917.

Counsel for plaintiffs in error on the trial below made the following concession: 'Defendants' counsel concede that the property in controversy is included within the grant to Mark G. Bradford [then the probate judge] from the United States, and that if the deed from Hepburn [then probate judge] to Robinson for the tract west of the river, and from Hepburn to Abrahams for the tract east of the river, shall be permitted to be located apart from the original plat of the property referred to in said deeds, that said deeds, if they shall be construed to extend to the thread of the river, by the court, will include the property in controversy.' This court, in Murray v. Hobson, supra, citing Pipe v. Smith, 4 Colo. 444, has held that parol evidence was admissible to identify the land described in this deed. They only question, therefore, under the foregoing concession, would seem to be whether the deeds in question are to be construed as extending to the center of the river the boundaries of the lands therein described. But it is said by counsel that, under all the authorities, if the deed of the probate judge is void upon its face, advantage thereof may be taken by one not a beneficiary of the trust, even in an action at law. Upon the contrary, it is strenuously contended by defendant in error that under the admitted facts of this case, in the light of the authorities cited, that mere interlopers are not in a position to raise this question. But, if we assume that they are, let us examine this deed, to see if the contention is sound:

1. The charge that the deed is void upon its face is predicated, among other things, upon the assumption that there are two descriptions therein, and that the so-called first description upon its face affirmatively shows that, at the time of the deed from the probate judge, no one was the actual occupant of the land, but that it was subsequently entered upon by the grantee in that deed. This same instrument was before this court for construction in Murray v. Hobson, supra; and it was there held that there was but one description in it, and that what counsel there, as here, call the 'first description,' constituted merely the first portion thereof, and indicated only the situs of the vacant tract, while the latter portion limited its extent and defined its boundaries. This being true, and it being also true, as laid down in the authorities already cited, that parol evidence is admissible for the purpose of locating this land, apart from the alleged original plat, the description contained in the deed is attended by no such result as is contended for here. The language of the instrument is fully set out in the case already cited, and, without further comment, we content ourselves with referring to that decision, which is squarely against the position attempted to be maintained by plaintiffs in error upon this first proposition.

2. A most elaborate and ingenious argument by counsel for plaintiffs in error is made under the second assignment of error, to show that the common-law 'thread of the stream' rule does not apply to deeds made by probate judges under the town site act, and that, by analogy to the doctrine prevailing in this state respecting the right of the people to the waters of public streams, and to divert and use the same, which is contrary to the common-law doctrine of riparian ownership, the rule here should be that the beds of nonnavigable...