Hodge v. Terrill, 16392
| Decision Date | 08 January 1951 |
| Docket Number | No. 16392,16392 |
| Citation | 228 P.2d 984,123 Colo. 196 |
| Parties | HODGE et al. v. TERRILL et al. |
| Court | Colorado Supreme Court |
R. Franklin McKelvey, Durango, George R. Armstrong, Cortez, for plaintiffs in error.
James B. Garrison, George E. Dilts, Cortez, for defendants in error.
Joe C. Terrill amd Myrtle E. Terrill brought an action to 'quiet title' to certain lands allegedly owned by them and in their possession, naming among many others, J. L. Hodge, Alta Denham and Gertrude Steinberg as defendants. Trial was had to the court, resulting in findings and decree in plaintiffs' favor. The three named defendants, seeking a review of the decree, bring the cause here by writ of error.
We will herein refer to the parties as they appeared in the trial court, namely as plaintiffs and defendants.
The complaint was filed or February 13, 1945, and therein it was alleged that the plaintiffs were the owners and in possession of certain real estate therein described by metes and bounds, and that the defendants named, and others, claimed 'some right, title, interest, equity or estate in and to the subject matter of this action adverse, and without right as against plaintiff's title.' Thereafter, and on March 8, 1945, a motion for a bill of particulars was filed by the named defendants, which motion remained undetermined. Thereafter and on April 20, 1945, the three named defendants filed an answer, in which it is alleged as a first defense that the complaint did not state facts sufficient to constitute a claim upon which relief might be granted; in the second defense each and every allegation of the complaint was denied; in the third defense each defendant set forth a description of the property owned by him or her, describing the same by metes and bounds, and further alleging possession in the individual defendant and superior title; further it is alleged therein that the individual defendant had been in possession of his or her premises 'for a period of more than seven (7) years next prior to the bringing of this action and have paid all taxes and assessments to and against said lands during the periods of their possession or the possession of their predecessors in title.'; for a fourth defense it was alleged that there is 'a public way which serves the lands of the defendants crossing the northern portion of plaintiffs land, and has been a public way for a period of more than fifty (50) years next prior to the bringing of this action.'
Thereafter and on November 26, 1945, an amended complaint was filed in which the above named defendants were included, but others than those named in the original complaint were made parties defendants, and the description of the lands owned by plaintiffs was somewhat differently described. No answer was filed to the amended complaint.
The action lay dormant until September 15, 1947, when the court entered an order finding 'that the issues herein involve the determination of a disputed boundary line and that a Commission should be appointed by this Court for the purpose of making a survey for the determination thereof;' thereafter and on January 20, 1948, the court appointed one Fred W. Paddock as commissioner, and, among the duties of said commissioner, it directed that 'he shall forthwith proceed to locate and determine said boundary, * * * that in particular he shall find and locate the true course of the east-west center line of Section 27 Township 36 North, Range 16 West New Mexico Principal Maridian, Montezuma County, Colorado; * * *.' The commissioner filed his report February 2, 1948.
Trial was begun on June 1, 1948, and was concluded June 2, 1948, resulting, as we have said, in a decree and order 'quieting title' in plaintiffs, and dispensing with a motion for a new trial. The cause was docketed in our court December 12, 1948; became at issue on June 2, 1950, and was orally argued on August 30, 1950.
It is apparent from the record that at the time of the trial another action, numbered 1423, pending on the docket of the district court--the parties to which are not disclosed by the record--was consolidated with this action, designated as number 1410 on the court's docket, for trial. It is apparent from the record that in case number 1423 the purpose of the action was the establishment of a public road through a part of section 27. It is further disclosed by the record that at the court's suggestion and at the conclusion of the first day's trial, a stipulation was entered into between the present parties on the morning of the second day of the trial, which resulted in the establishment of a highway sought in case number 1423. Because of some confusion in the briefs, reference to the stipulation is deemed advisable.
Mr. Hughes, attorney for plaintiffs in case number 1410, and presumably an attorney in case number 1423, stated:
'They accept a 50-foot right-of way, 25 feet on each side, east and west, of the Hodge, Steinberg property line, extended south to the oil, Highway 666, leaving the issue to the Court as to the location of the dividing line between the properties of the plaintiffs and defendants.
'In the case in which the County Commissioners are plaintiffs [1423], that is to be dismissed with prejudice.' (Emphasis supplied.)
According to the statement of counsel representing defendants here, that stipulation was satisfactory to them,
'The Court: The stipulation and agreement quoted by counsel of record approved by the Court and made a part of the findings in this case * * *
'Case No. 1423, Board of County Commissioners v. Terrill dismissed with prejudice.'
In the findings and decree entered in number 1410, we find:
'It is further considered, adjudged and decreed That the said above described lands of the plaintiff's shall be subjected to an easement and right of ingress and egress in favor of the said defendants, and their licensees and permitees, according to description and under terms and conditions as follows, to-wit:
'A strip of land 50 feet in width, lying 25 feet on either side of a center line procured as follows: Extending southerly the east property line of J. L. Hodge, which line is the West property line of defendants Steinberg and Denham to its intersection with the Northerly right of way line of U. S. Highway No. 160 as now constructed, and which highway lies Southerly from the properties of said defendants above named; said easement to be extinguished should the ownership of said Hodge-Steinberg and Denham properties ever be united with the ownership of the lands across which said easement passes:
the northern boundary of said easement to coincide with the East-West center line of said Section 27, as herein found to exist.'
It is established by the undisputed evidence that the deeds under which plaintiffs claim title describe their lands as lying in the southeast quarter of said section 27, and those under which these defendants claim title delineate their plots as lying in the southeast quarter of the northeast quarter, and adjoining the east-west center line of said section. There is undisputed evidence, to which no objection was interposed, that immediately south of defendants' plots of land is a fence which was erected as early as 1880 and has remained in that location at all times subsequent thereto; that defendants and their predecessors have been in possession of the lands lying immediately north of said fence and adjacent thereto since its construction. Immediately south of this fence there has been a roadway or passageway used by defendants and their predecessors in interest as a means of ingress and egress, and since by stipulation of the parties in case number 1423 the question of the highway has now been established as an easement, it need not further be considered here except as to its location.
It is evident from the record that the court proceeded upon the assumption that the parties to the litigation in case number 1410 were seeking the establishment of the true east-west center line of said section 27, and if this was the issue for determination, we shall assume that the commissioner's report, although not entirely satisfactory, was properlys a sufficient basis for the court's determination. The undisputed evidence clearly and convincingly establishes the fact that plaintiffs and defendants, by their various deeds, conveyed lands in the designated quarter sections, and the record also is clear that the taxes paid by both plaintiffs and defendants were on land assessed according to their legal descriptions.
The following stipulation is quoted by the court in its findings and decree: 'The case, in the nature of a quiet title proceeding, originally involved more parties and more issues than are now before this Court. However, by stipulation entered into by the parties on June 1, 1948, and approved by the Court, some of the issues were resolved, and the parties defendant then remaining, consist of J. L. Hodge, Alta Denham, and Gertrude Steinberg. By that stipulation it was agreed that 'the only issues to be considered herein by the Court shall be such as deal with the location of the north property line of plaintiffs in that part of the Southeast quarter of Section 27, Township 36, North Range 16 West the New Mexico Principal meridian, lying east of Highway No. 160 as now constructed, which line is also the south boundary line of the property of defendants above named, to-wit: J. L. Hodge, Alta Denham, and Gertrude Steinberg; that is the determination by the Court of the East-West center Section line of Section 27 aforesaid.'' (Emphasis supplied.)
This quoted stipulation appearing in the court's findings and decree, and apparently adopted by the court in its determination of this action, is not to be found in the record. It would appear from the finding of the court above quoted that the stipulation as to location of the true property line was construed as a...
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