Harrah v. People ex rel. Atty. Gen. of Colo., 16842
| Decision Date | 21 April 1952 |
| Docket Number | No. 16842,16842 |
| Citation | 125 Colo. 420,243 P.2d 1035 |
| Parties | HARRAH v. PEOPLE ex rel. ATTORNEY GENERAL OF COLORADO. |
| Court | Colorado Supreme Court |
James S. Henderson, Denver, for plaintiff in error.
Duke W. Dunbar, Atty. Gen., H. Lawrence Hinkley, Deputy Atty. Gen., Frank A. Wachob, Asst. Atty. Gen., for defendant in error.
We will hereinafter refer to plaintiff in error as Harrah; to defendant in error as the People; and to the State Board of Land Commissioners as the Land Board.
The People, as plaintiff, filed a 'Complaint in Forcible Entry and Detainer' against Harrah in which it was alleged that the Land Board is vested with control and disposition of public lands of Colorado; that the particular land, which we identify as tract three (3) located within the City and County of Denver, is public land under the control of the Land Board; that in an action in the district court of Denver, by judgment duly entered, Harrah was awarded a lease upon said tract three (3) which ended on January 7, 1950; that under said judgment Harrah 'was to surrender possession of said premises and remove from the said lands his improvements within a period of sixty (60) days from the termination of said lease'; that Harrah has not vacated the land, has not removed his improvements therefrom, and remains in possession 'without lease and without the authority or permission' of the Land Board, and 'has been a trespasser upon said described lands'; and that 'the State of Colorado has been damaged by said trespass in the sum of twenty-five dollars ($25.00) per day for each and every day from said January 7, 1950, to the date of suit.' The prayer set out in the complaint was for judgment for possession of tract three (3), for 'statutory damages' in the sum of $11,350, and for costs.
Counsel for Harrah moved to dismiss the action on the ground of failure of plaintiff to state a claim, which motion was denied. In his answer he admitted that tract three (3) was state land; and alleged that the judgment of the Denver district court, to which reference is made in the complaint, was void in so far as it related to tract three (3); that for many years prior to January 7, 1949, he had occupied tract three (3) under lease duly executed by the Land Board, and when the last of said leases expired, 'he continued to occupy said premises with the consent and by permission' of said board; that the Land Board had never at any time served notice upon him terminating his tenancy on tract 3 or demanding possession thereof as required by law; that he is not a trespasser upon said property and does not forcibly detain the same, but is in lawful possession thereof.
Trial was to the court without a jury. Findings of fact and legal conclusions based thereon were in favor of the People. The trial court entered judgment in favor of the People for possession of the land and for $17,725, being the amount accruing at the rate of $25 per day from January 7, 1949, to the date of judgment. Thereafter, on determination of a motion for new trial, the trial court added to the money judgment an additional $325 to cover the time which elapsed after entry of the judgment and prior to disposition of the motion for new trial.
Harrah, seeking reversal of the judgment, brings the case here by writ of error. His attorney, in the specification of points, sets forth twelve grounds upon which he relies for reversal.
It is undisputed that prior to 1942 Harrah's occupancy of tract 3, together with other lands in the same area, was authorized under written lease. It also is undisputed that Harrah had expended substantial sums of money in improvements upon tract 3. In 1942 the amount of land leased by the Land Board to Harrah was substantially reduced. A new lease was executed which did not actually include tract 3. Harrah and the Land Board believed, however, that all land upon which improvements had been erected was included in this lease. Harold F. Collins, president of the Land Board, testified in this connection as follows:
No action was taken to cause the removal of Harrah from tract 3 when this discovery was made. When the 1942 lease, covering land other than tract 3, expired, a controversy arose and the Attorney General brought an action in the district court to secure the removal of Harrah from the land covered by that lease.
During the trial of that case, the attorneys for the contesting parties entered into a stipulation. By this stipulation they disposed of the case and specifically settled the claims of the parties in and to the real estate which was the subject of the action. In addition thereto it was provided that the Land Board should execute and deliver to Harrah a lease on tract 3 for a term of one year and that Harrah was to surrender possession of said tract 3 and remove the improvements therefrom within sixty days from the expiration of said term. Tract 3 was not otherwise made a part of the subject matter of the action. The district court entered judgment pursuant to the terms of that stipulation. It is the judgment set forth in the complaint and reliance is placed thereon by the Attorney General as being the final determination of Harrah's right to possession of tract 3. It is clear that neither of the parties carried out the judgment of the court in so far as it related to tract 3. No lease was executed by the Land Board, and Harrah remained in possession with its full knowledge and consent. This situation continued until April 6, 1951, when the complaint in the instant case was filed.
We need consider but two of the points urged by the attorney for Harrah. They are: (1) 'That the trial court erred in holding that Section 65, Chapter 134, 1935 C.S.A. authorized the entry of an order for possession of real property.' and (2) 'That the trial court erred in denying the contention of plaintiff in error that Section 65, Chapter 134, 1935 C.S.A. defines a criminal offense (misdemeanor), and that, therefore, the section is not applicable to a civil proceeding.'
It is conceded by the Attorney General that the action is based upon the statute above cited. In effect it is argued by him that in so far as the Land Board is concerned the provisions of the forcible entry and detainer statute are not applicable, and that actions to recover possession of state lands are controlled by section 65, chapter 134, '35 C.S.A. This statute, omitting words wholly inapplicable, provides:
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