Litvak v. Sunderland

Decision Date13 June 1960
Docket NumberNo. 18867,18867
Citation143 Colo. 347,353 P.2d 381
PartiesRose LITVAK, Sam Horwitz, and The Board of County Commissioners of the County of Jefferson, State of Colorado, Plaintiffs in Error, v. Orlo Ray SUNDERLAND, Defendant in Error.
CourtColorado Supreme Court

Harry A. Feder, Milton Morris, Denver, Ronald J. Hardesty, Golden, for plaintiffs in error.

Glenn L. Daly, Denver, for defendant in error.

KNAUSS, Justice.

On March 11, 1957 Rose Litvak and Sam Horwitz, owners of lots adjacent to defendant's property, filed an amended complaint against Orlo Ray Sunderland and the Board of County Commissioners of the County of Jefferson, wherein they prayed that the court find and determine that Ames Street lying between West 16th Avenue and West 17th Avenue 'is a public highway and that the title thereof is now vested in and at all times herein has been vested in the County of Jefferson, State of Colorado' and that defendant Sunderland 'is trespassing upon said portion of Ames Street upon which he has erected and maintains a fence and that said defendant be ordered * * * to remove immediately said fence from the confines of the street.' The complaint further prayed for $2,500 damages against defendant Sunderland.

The Board of County Commissioners filed an answer to the amended complaint in which it was stated that said amended complaint 'fails to state a claim against this defendant upon which relief can be granted.' A cross-claim was also filed by said Board against defendant Sunderland in which it was alleged that the fence referred to in the amended complaint 'is an unlawful obstruction of a public highway and is a public nuisance.' The County Commissioners prayed that defendant Sunderland be ordered to forthwith remove that part of the fence standing within Ames Street.

Sunderland filed his answer to the amended complaint in which he alleged that it failed to state facts sufficient to constitute a claim, and further denied most of the allegations of the amended complaint; admitted that his wife acquired title to this land in 1939 and she in turn conveyed the record title to Sunderland in October 1941. He admits that Ames Street is so designated on the plat of 'Edgewater' and is shown to be 60 feet in width and that said so-called street abuts his lots numbered 13 to 24 in Block 17 of 'Edgewater'. He further admitted constructing the fence complained of in 1939 and that in June 1956 the Board of County Commissioners requested him to remove the fence, which he declined to do. He alleged that no part of said platted land is in any City or town, but was located in an unincorporated area in the County of Jefferson; that the plat of 'Edgewater' filed in 1889 was a common law offer to dedicate to the public use the designated streets shown thereon and that said offer was not accepted by the public authorities, the public, or by any person or persons on their behalf within a reasonable time, or at all. That in the absence of such acceptance, the owners of the abutting lots became the owners of said street to the center thereof, subject only to the easement for a public street upon acceptance by the public of the offer of dedication within a reasonable time. Sunderland further alleged that the designated Ames Street not having been accepted or put to use for fifty years or more was abandoned and vacated, and that in 1939 he, Sunderland, planted trees and shrubs on 'his' east half of said street, together with a fence, as part of the landscaping of 'his' property. He further contends that plaintiffs are estopped from claiming or asserting at this time any easement or right-of-way across that portion of Ames Street enclosed by his fence. The facts in the case were stipulated by the parties and after full argument in the trial court and the submission of briefs the trial court found in favor of Sunderland, dismissing the complaint. We quote from the findings and conclusions of the trial judge:

'In this case we conclude that between the year 1889, the year the map or plat was filed for record and recorded, and 1939, when defendant Orlo Ray Sunderland built his home and fenced in a portion of the street as set forth in the agreed statement of facts, neither the public nor the public authorities have made any attempt to accept said dedication insofar as the property described in the complaint is concerned. We conclude therefore that there was no acceptance of the offer to dedicate within a reasonable time. We further conclude that defendant Orlo Ray Sunderland is the owner of the east 30 feet of the so-called Ames Street adjacent on the west to Lots 13 to 24 inclusive of Block 17, Edgewater. We further conclude that neither plaintiffs by virtue of their amended complaint nor defendant Board of County Commissioners of the County of Jefferson, State of Colorado by virtue of its cross claim, are entitled to any relief and that the amended complaint and the cross claim should be dismissed.'

We are not called upon to determine who owns the east thirty feet of the so-called Ames Street adjacent on the west to lots 13 to 24 inclusive of Block 17, Edgewater. As was said in Hand v. Rhodes, 125 Colo. 508, 245 P.2d 292, 195:

'* * * This is not an action to determine title, and the question of title is involved here only to the extent of determining the relative rights as between the parties. As we have pointed out, the...

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8 cases
  • Pleak v. ENTRADA PROPERTY OWNERS'ASSN.
    • United States
    • Arizona Court of Appeals
    • 25 Julio 2003
    ... ... to dedicate roadway to public was invalid attempted dedication because only one of two purchasers had signed deed conveying property); Litvak v. Sunderland, 143 Colo. 347, 353 P.2d 381 (1960) (attempt to accept roadway made more than sixty years after dedication held ineffective); ... ...
  • PLEAK v. ENTRADA PROPERTY OWNERS'ASS'N
    • United States
    • Arizona Court of Appeals
    • 30 Abril 2003
    ... ... to dedicate roadway to public was invalid attempted dedication because only one of two purchasers had signed deed conveying property); Litvak v. Sunderland, 143 Colo. 347, 353 P.2d 381 (1960) (attempt to accept roadway made more than sixty years after dedication held ineffective); ... ...
  • City of Northglenn v. City of Thornton
    • United States
    • Colorado Supreme Court
    • 6 Septiembre 1977
    ... ... 1 See Litvak v. Sunderland, 143 Colo. 347, 353 P.2d 381 (1960); Hand v. Rhodes, 125 Colo. 508, 245 P.2d 292 (1952). Finally, these elements must be found from ... ...
  • Thornton v. City of Colorado Springs
    • United States
    • Colorado Supreme Court
    • 28 Diciembre 1970
    ... ...         See also Litvak v. Sunderland, 143 Colo. 347, 353 P.2d 381 ...         Acceptance, however, need not be made only in the manner provided by statute ... ...
  • Request a trial to view additional results
2 books & journal articles
  • Chapter 34 - § 34.3 • COMMON-LAW DEDICATION
    • United States
    • Colorado Bar Association Colorado Real Property Law (CBA) Chapter 34 Dedication
    • Invalid date
    ...Nilson v. Huempfner, 355 P.2d 316 (Colo. 1960).[31] Fortner v. Eldorado Springs Resort Co., 230 P. 386 (Colo. 1924); Litvak v. Sunderland, 353 P.2d 381 (Colo. 1960).[32] Burlington & C.R. Co. v. Schweikart, 14 P. 329 (Colo. 1887); John Mouat Lumber Co. v. City of Denver, 40 P. 237 (Colo. 18......
  • Chapter 4 - § 4.6 • DEDICATION REQUIREMENTS
    • United States
    • Colorado Bar Association Colorado Land Planning and Development Law (CBA) Chapter 4 Subdivisions, Streets, and Access
    • Invalid date
    ...Town of Manitou v. Int'l Trust Co., 70 P. 757 (Colo. 1902). [109] Evans v. Welch, 68 P. 776 (Colo. 1902).[110] Litvak v. Sunderland, 353 P.2d 381 (Colo. 1960).[111] Fortner v. Eldorado Springs Resort Co., 230 P. 386 (Colo. 1924).[112] McIntyre v. El Paso County Comm'rs, 61 P. 237 (Colo. App......

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