John Mouat Lumber Co. v. City of Denver

• Decision Date: 18 February 1895
• Citation: 21 Colo. 1,40 P. 237
• Parties: JOHN MOUAT LUMBER CO. v. CITY OF DENVER. [1]
• Court: Colorado Supreme Court

40 P. 237

21 Colo. 1

JOHN MOUAT LUMBER CO. v. CITY OF DENVER. ^[1]

Supreme Court of Colorado

February 18, 1895

Error to district court, Arapahoe county.

Action by the John Mouat Lumber Company against the city of Denver to determine the better right to certain streets. From a judgment of nonsuit, plaintiff brings error. Reversed.

This suit was instituted by plaintiff in error, the John Mouat Lumber Company, a corporation, against the city of Denver for the purpose of determining who had the better right to those portions of Twenty-Sixth and Twenty-Seventh streets between Blake street and the railroad grounds, as marked upon Case & Ebert's addition to the city of Denver. See plat. In the district court, plaintiff suffered a nonsuit at the conclusion of its testimony. To the judgment of nonsuit it duly excepted, and brings the case here upon error. The facts are undisputed, and, so far as necessary to an understanding of the opinion, are as follows: The land in controversy is a part of a quarter section of land patented by the United States to Francis M. Case under date of July 17, 1867. In April, 1868, Case filed a map of Case & Ebert's addition to Denver city, of which addition the parcels of land in controversy are a part. Depot street is one of the streets upon this plat. It embraces a part of the ground in dispute viz. the intersection of Twenty-Sixth and Twenty-Seventh streets with Depot street. The other parcels of land in dispute are the two culs-de-sac between Depot street and Blake street, upon Twenty-Sixth and Twenty-Seventh streets the entire ground in controversy being a strip 180 feet in length by 80 feet in width on Twenty-Sixth street, and a like amount on Twenty-Seventh street, as platted. There are no streets beyond the railroad tracks, or on the northwesterly side of the ground in dispute, and there is no means of ingress or egress in that direction. There are now, and have been for many years past, a large number of railroad tracks entering and contiguous to Depot street, at the point of intersection with Twenty-Sixth and Twenty-Seventh streets. By an ordinance duly passed and approved on the 4th day of May, 1871, the city of Denver vacated and abolished Depot street, but no part of either Twenty-Sixth or Twenty-Seventh streets was included in such vacating ordinance. The evidence does not show that any part of the premises in controversy was ever accepted as a public street by the city prior to the bringing of this suit, but, on the contrary, it is shown that portions of the property were at all times impassable, and unfit for use for street purposes; one of these streets having a large depression in it, covered with water, described by the witnesses as a slough, and the other having a ditch and a steep embankment, seven or eight feet in height, although pedestrians and teams at times passed across the premises. Some years before the institution of this action, plaintiff in error purchased the grounds theretofore known as 'Depot Street,' and also the two culs-de-sac aforesaid, took possession, inclosed the premises with a substantial fence, and has ever since remained in such possession. By the ordinance vacating and abolishing Depot street, all streets and alleys lying northwest of the railroad company's right of way were also abolished. The evidence shows that neither of the parcels of land in controversy has ever been accepted by the city for street purposes; that neither has ever been graded or in any way improved by the city, but the ground has been for many years unused by it, and occupied as private property. In one of these streets a dwelling house is situated, near the center. This house, which was built in 1871, remained at the time of the institution of this suit, in 1888.

Markham & Carr, for plaintiff in error.

John F. Shafroth, F. A. Williams, and A. B. Seaman, for defendant in error.

HAYT, C.J. (after stating the facts).

There was no statutory dedication by the filing of the plat, for the reason that the first statute upon which a statutory dedication could be based, although adopted in January, 1868 did not go into effect until the 1st day of July, 1868, while the plat of the Case & Ebert addition to the city of Denver was filed on the 7th day of the intervening month of April. Rev. St. 1868, p. 619; 2 Dill. Mun. Corp. § 628; City of Denver v. Clements, 3 Colo. 472.

It is equally clear, we think, that there was a common-law dedication by the owner of the pieces of land in controversy these parcels being portions of certain streets marked upon the plat of the Case & Ebert addition to the city of Denver. After the filing of the plat, the owners of the territory platted, from time to time, sold lots in this addition with reference to this plat. Although these lots were sold to private parties, they were deeded by reference to the plat, and the grantors and their privies are estopped from denying the dedication to the public of the streets and alleys marked thereon. This is the rule established in City of Denver v. Clements, supra. The decision in the Clements Case was affirmed in the subsequent case of Ward v. Farwell, 6 Colo. 66. In both cases the following language from Mr. Angell is quoted with approval: 'It may be stated, as a general rule, that where the owner of urban property, who has laid it off into lots, with streets, avenues, and alleysintersecting the same, sells his lots with reference to a plat in which the same is so laid off, or where, there being a city map in which this land is so laid off, he adopts such map, by sales with reference thereto, his acts will amount to a dedication of the designated streets, avenues, and alleys to the public.' Ang. Highw. § 149. The doctrine of the text of Mr. Angell is supported in the following, among other, cases: Bartlett v. Bangor, 67 Me. 460; Carter v. City of Portland, 4 Or. 339; West Covington v. Freking, 8 Bush, 121; Hawley v. Mayor, etc., 33 Md. 270; City of Evansville v. Evans, 37 Ind. 229; Weisbrod v. Railway Co., 21 Wis. 609; In re Opening of Pearl St., 111 Pa. St. 565, 5 A. 430; Elliott, Roads & S. p. 89; 5 Am. & Eng. Enc. Law, p. 407, and cases cited.(Image Omitted)It must, however, be conceded that the rule contended for by appellant--that such platting and sale of lots constitute a dedication of the streets and alleys delineated upon the plat only as between the grantors and purchasers from them, and that, so far as the city is concerned, such acts amount to a mere offer of dedication, which may be withdrawn at any time prior to acceptance by the public authorities of the city--is well supported by both reason and...