Marr v. Shrader

• Decision Date: 29 February 1960
• Docket Number: No. 18054,18054
• Citation: 349 P.2d 706,142 Colo. 106
• Parties: Eva MARR, Plaintiff in Error, v. Eva SHRADER, Defendant in Error.
• Court: Colorado Supreme Court

Page 706

349 P.2d 706

142 Colo. 106

Eva MARR, Plaintiff in Error, v. Eva SHRADER, Defendant in Error.

No. 18054.

Supreme Court of Colorado, En Banc.

Feb. 29, 1960.

Garrison, Dilts & Hancock, Cortez, F. T. Henry, Colorado Springs, for plaintiff in error.

Watts & Watts, Durango, for defendant in error.

SUTTON, Chief Justice.

The parties will be referred to by name or as they appeared in the trial court where plaintiff in error was defendant and defendant in error was plaintiff.

This cause arises as a result of a dispute as to the true location of the north boundary line of Township 38 north, Range 19 west, New Mexico Principal Meridian, Montezuma County, Colorado. It has resulted in an eighty acre conflict of ownership between plaintiff and defendant involving sections 1 and 12, in Township 38 north in the aforesaid range. Judgment was for the plaintiff and the defendant brings error.

The facts appearing from the record are briefly as follows: Roy G. Marr, husband of defendant Eva Marr, and her original predecessor in title, was the first person to pre-empt and then to homestead in the area. He secured his patent under what is termed the 'original' United States Survey. Mr. Marr had gone upon open land in 1916, staked 160 acres as his own, went into possession, and in due course in 1917 was granted a patent from the federal government for the southeast quarter of section 1 in Township 38.

After Mr. Marr was located, one George W. Winklepleck, plaintiff's original predecessor in title, came to the area. Mr. Marr helped him locate along Marr's southerly boundary. What was then called the northeast quarter of section twelve in Township 38 was staked for Winklepleck.

On or about May 19, 1917, the United States Land Office, by virtue of the authority granted the Secretary of the Interior by 43 U.S.C.A. § 772, caused a 'Dependent Survey' to be made of Township 38. This resulted in a temporary new northeast corner of the Township. Subsequently, by virtue of the same authority, an 'Independent Survey' was run and in 1923 was approved. The latter confirmed the 'Dependent Survey's' corners. The Dependent and Independent Surveys had the practical effect of moving Mr. Marr's south boundary line north about a quarter of a mile and set over to the Winklepleck land the south eighty acres of the Marr homestead, while at the same time freezing Marr's northerly line.

Shrader's amended complaint states that defendant has unlawfully taken possession of the land to which plaintiff has a valid title by virtue of the later patent and asks that plaintiff be decreed the owner and be granted immediate possession of the eighty acres in dispute. Defendant's amended answer, along with a general denial, relies primarily upon the specific defenses of C.R.S. '53, 118-7-1, 6 and 8, being the general eighteen year adverse possession statute, the seven year statute of limitation for the recovery of land, and the seven year statute relating to possession under color of title and payment of taxes.

After a complicated set of pleadings the case was finally at issue and trial was had to the court. Prior to this time there was a virtual plague of parties involved due to the claims of other neighbors to part of plaintiff's land not here involved, and the granting and subsequent assignments of various oil and gas leases. Fortunately these collateral matters were resolved before trial so that the issue presented to the trial court, and by writ of error in this court, was and is which of the two parties, Marr or Shrader, is the owner and entitled to possession of the eighty acres in dispute.

Though defendant urges several grounds of error we deem it necessary to only discuss one of them. As mentioned above, the record before us is replete with competent evidence that defendant's husband was the first one in the area; and that he received his patent based upon the original government survey, which survey was based upon the way he had staked his claim upon the ground. It further shows that he had gradually cleared much of the ground and farmed part of it; that between 1922 and 1945, when this dispute arose, he had at times rented out the farm; that in 1922 he had fenced at least part of his south line and in 1934 he had fenced along his entire south line next to a road that had been constructed there.

Plaintiff on the other hand was never in physical possession of the disputed eighty acres. She had lived in that neighborhood for a long time and prior to her claiming title to what she now asserts is the northeast quarter of section 12, she knew that Mr. Marr had fenced and was using and claiming the land in question. What she really seeks is to oust from possession and title a good faith settler who was first in time and use, and who relies on the original government survey, by asserting that the later government surveys give her a better title. With this premise we cannot agree, and conclude that the trial court was in error in so holding. Its findings and decree, based upon the evidence before it, are contrary to the law.

Without determining whether the eighteen year statute (C.R.S. '53, 118-7-1), or the seven year statute (C.R.S. '53, 118-7-6), apply to the situation before us, it is apparent that the seven year statute relating to color of title (C.R.S. '53, 118-7-8) does protect Marr. In this respect the trial court erroneously adopted the theory of plaintiff that defendant had failed to prove color of title. This decision was based upon the plaintiff's and trial court's interpretation of Parks v. Roth, 1913, 25 Colo. App. 296, 137 P. 76. It was there held that a tax deed, offered solely as color of title, could not be used to prove title itself. For reasons which hereafter appear Parks is not applicable to this case.

In the instant case plaintiff's brief avers that:

'It is freely admitted that Eva Marr held legal title to said property, but it is denied that she has color of title or that if she had color of title such was proved upon the case.'

Defendant's exhibits B and C were an abstract and supplemental abstract of title which were offered and received in evidence, and when received as offered were prima facie evidence of defendant's title under C.R.S. '53, 118-7-5. The following is the manner in which...