Morgan v. Rogers, 839.

• Decision Date: 01 March 1897
• Docket Number: 839.
• Citation: 79 F. 577
• Parties: MORGAN v. ROGERS et al.
• Court: U.S. Court of Appeals — Eighth Circuit

79 F. 577

MORGAN v. ROGERS et al.

No. 839.

United States Court of Appeals, Eighth Circuit.

March 1, 1897

Willard Teller (H. M. Orahood and E. B. Morgan with him on the brief), for plaintiff in error.

F. A Williams (G. Q. Richmond with him on the brief), for defendants in error.

Before SANBORN and THAYER, Circuit Judges, and LOCHREN, District judge.

LOCHREN District Judge.

This is an action of ejectment brought by the defendants in error against the plaintiff in error and numerous other persons to recover the possession of the S. 1/2 of the N.E. 1/4 of the S.E. 1/4 of section 2 in township 4 S., of range 68 W., in the county of Arapahoe and state of Colorado, and comes here by writ of error to review the judgment of the circuit court rendered in favor of the plaintiffs below against the defendant, Morgan, upon demurrer to his answer to the plaintiff's complaint. The complaint alleges that by virtue of an act of congress approved May 21, 1872 (17 Stat 140), a patent of the United States, on November 15, 1873 was duly issued, conveying to Joseph E. Bates, mayor of the city of Denver, and to his successors and assigns forever lands described, including the land aforesaid, in trust for the city of Denver. This patent was recorded March 26, 1875 in the office of the register of deeds of said county, and the defendants have entered upon and occupied the land in question. The answer of defendant Morgan admits the entry upon and occupation by the defendants of the land in dispute, and sets out in full the act of congress of May 21, 1872, referred to in the complaint, the title of which is, 'An act to enable the city of Denver to purchase certain lands in Colorado for cemetery purposes. ' It enacts 'that the mayor of the city of Denver, Colorado territory, be, and is hereby authorized to enter through the proper land office, at the minimum price per acre, the following lands belonging to the United States (description), being 160 acres of land lying adjacent to the city of Denver, to be held and used as a burial place for the said city and vicinity. ' The answer then sets out a copy of the patent, which, after reciting payment for the lands made by Joseph E. Bates, mayor, in trust for the city of Denver, grants 'unto said Bates, mayor, in trust for said city, and to his successors, the said tract. ' Habendum: 'Unto said Bates, mayor, in trust for the city of Denver, and to his successors and assigns forever. ' The patent contains no reference to the act of May 21, 1872, nor any reference to any use of the land. The answer also sets out in full another act of congress of January 25, 1890, which refers to the previous act of May 21, 1872, and corrects an error in the description of a part of the land (not affecting the land in question), and confirms the patent, which contained a correct description, and provides 'that the city of Denver be, and it is hereby authorized to vacate the use of the said land, or any part thereof, as a cemetery, and to appropriate the use of the same for a public park or grounds, and to no other purpose. ' The answer further sets forth that upon the petition of the Right Reverend Joseph P. Machebeuf, catholic bishop of the diocese of Denver, representing that the N.E. 1/4 of the S.E. 1/4 of section 2, township 4, range 68, had been used by the members of the Catholic Church of Denver and Arapahoe county as a burial place since 1863, and asking that the said...