Jacobs v. Perry, 17935

• Decision Date: 01 July 1957
• Docket Number: No. 17935,17935
• Citation: 313 P.2d 1008,135 Colo. 550
• Parties: Phyllis JACOBS, Plaintiff in Error, v. Robert M. PERRY, Jr. and Ruth Brown Perry, Defendants in Error.
• Court: Colorado Supreme Court

Page 1008

313 P.2d 1008

135 Colo. 550

Phyllis JACOBS, Plaintiff in Error, v. Robert M. PERRY, Jr. and Ruth Brown Perry, Defendants in Error.

No. 17935.

Supreme Court of Colorado, In Department.

July 1, 1957.

Petre & Zimmerman, Glenwood Springs, Ireland, Ireland, Stapleton & Pryor, Wm. B. Naugle, Denver, for plaintiff in error.

Parkison & Stewart, Glenwood Springs, for defendants in error.

HALL, Justice.

The parties appear herein as they appeared in the trial court. We refer to plaintiff in error as plaintiff and defendants in error as defendants.

Plaintiff instituted this action pursuant to Rules of Civil Procedure Colo. 105 to have fully adjudicated rights to the following seven mining claims, Copper King, Last Chance, Forest City, Wheatley, Clearfield Moonlight and McCabee. Defendants answered and asserted superior rights to that portion of six of the claims which lie within the following described lands:

Lot 11, W 1/2 SE 1/4, NE 1/4 SW 1/4, Section 4; E 1/2 NE 1/4, Section 8; Lot 1, W 1/2 NW 1/4, SE 1/4 NW 1/4 and W 1/2 NE 1/4, Section 9, all in Township 10 South, Range 86 West, 6th P.M., Pitkin County, Colorado.

Defendants contend they have a superior title by virtue of:

(a) A connected chain of title from the United States of America;

(b) Adverse possession for over 20 years;

(c) Adverse possession for 18 years, C.R.S. '53, 118-7-1;

(d) Over 7 years' possession under color of title and payment of taxes as provided in C.R.S. '53, 118-7-6.

Defendants also set up as defenses:

(a) Plaintiff is estopped to assert ownership;

(b) Laches in bringing the action;

(c) Limitations set forth in C.R.S. '53, 118-7-6.

Defendants make no claim to the Moonlight for the reason that it lies outside the boundaries of the lands above described.

The trial court made findings and conclusions of law as follows:

1. Plaintiff's original source of title to the mining claims was superior to defendants' title thereto.

2. Plaintiff's source of title, two treasurer's deeds (issued and recorded February 25, 1938), have not been assailed.

3. Defendants have acquired no title by adverse possession or use and have failed to establish any of their defenses except that of estoppel and laches and then only as to those portions of the mining claims under irrigation and cultivation

'* * * such lands to all intents and purposes, have become a part of the agricultural lands belonging to defendants Perry. Neither plaintiff nor her predecessors, took any action with respect thereto until this present litigation. * * *

'Accordingly, defendants Perry are the owners and in possession of 10.46 acres of irrigated land of the Copper King and Last Chance lode claims and .3 of an acre of cultivated land of the McCabee lode mining claim involved in this action.'

The decree determined plaintiff to be the owner of the mining claims except the 10.46 acres and .3 acre mentioned above and as to those parcels the court decreed the defendants the owners and entitled to possession. Both plaintiff and defendants assign error. Plaintiff claims she should have been decreed the owner of all of the mining claims. Defendants contend they should have been awarded not only the irrigated tracts but all portions of the mining claims overlapped by and in conflict with their lands above described.

Much of the testimony and the exhibits deal with titles, uses, rights of possession, etc., prior to February 25, 1938, the date of the two treasurer's deeds and the source of plaintiff's title to the mining claims.

This evidence and the arguments with reference thereto are, we think, wholly immaterial to the issues before us.

The treasurer's deeds created new titles to the mining claims clear of all prior titles, liens, rights of possession or other claims. This question is fully discussed in Harrison v. Everett, 135 Colo. ----, 308 P.2d 216, 219, decided March 11, 1957, wherein we said:

'The issuance of a valid treasurer's deed created a virgin title erasing all former interest in the land.'

See, also, Flader v. Campbell, 120 Colo. 66, 207 P.2d 1188, 1189; McDermott v. Bent County Colorado Irrigation District, 130 Colo. 44, 272 P.2d 995.

Only 16 years and 2 months had elapsed from the date of the treasurer's deed, February 25, 1938, to the date of filing this action, April 26, 1954. Consequently, defendants' claim of title by adverse possession under the 18-year statute of limitation fails since the statutory period required to divest plaintiff of her title had not elapsed.

Defendants' claims based on 7-years possession under color of title and payment of taxes (C.R.S. '53, 118-7-8) must fail because (a) defendants had no color of title their deed expressly excepting the mining claims. It recited the following:

'subject to conflicts, if any, with the Copper King, Last Chance, Forest City, Wheatley and Clearfield patented Lode Mining Claims, all U. S. Survey No. 8113.'

This exception covers all but .3 acre in the McCabee claim.

(b) Plaintiff, not defendants, paid all taxes 'legally assessed' against the mining claims. True, the property was subjected to a double assessment, one being in the names of defendants who paid the same. That, however, was an unlawful assessment, in the names of strangers to the title, and the taxes based thereon were not 'legally assessed.'

C.R.S. '53, 118-7-6 does not fix a time within which plaintiff must bring an action. It does fix the time within which defendants must attack plaintiff's title arising out of the treasurer's deeds.

The trial court correctly found that the defendants had failed to establish title to any part of the mining claims by adverse use or possession under any of the statutes plead as defenses. In spite of such findings, however, the trial court concluded:

'That * * * defendants * * * have been in possession for many years of the irrigated and cultivated portions of the Copper King and Last Chance * * * and McCabee mining claims * * *. Plaintiff and her predecessor * * * knew of this irrigated and cultivated land and the use thereof being made by defendants Perry and their predecessors in interest. Such land to all intents and purposes have become a part of the agricultural lands belonging to defendants Perry. Neither plaintiff nor her predecessors took any action with respect thereto until this present litigation.' (Emphasis supplied.)

Based on this conclusion the trial judge awarded to defendants:

'* * * those portions of the mining claims under irrigation (10.46 acres of the Copper King and Last Chance lode mining claims) and cultivation (.3 of an acre of the McCabee lode mining claim) * * *.'

What the trial judge had in mind in finding:

'Such land to all intents and purposes has become a part of the agricultural lands belonging to defendants * * *.' is not clear.

Improvements may become a part of the lands on which they are placed. We know of no law or means whereby lands may be superimposed upon or become a part of other...