Munro v. Eshe, 15264.

• Decision Date: 04 December 1944
• Docket Number: 15264.
• Citation: 156 P.2d 700,113 Colo. 19
• Parties: MUNRO et al. v. ESHE.
• Court: Colorado Supreme Court

156 P.2d 700

113 Colo. 19

MUNRO et al. v. ESHE.

No. 15264.

Supreme Court of Colorado

December 4, 1944

Rehearing Denied Feb. 26, 1945.

Error to District Court, Garfield County;

Eroor to District Court, Garfield County; John R. Clark, Judge.

Action by Annie H. Eshe against O. A. Dow and the Socony-Vacuum Oil Company, Inc., for the recovery of rentals for use of a filling station, wherein Fred Munro and others, as surviving members of the last board of directors and as trustees of the Munro Mercantile Company, a Colorado corporation, now defunct, were permitted to appear as intervening defendants. To review a judgment for plaintiff, the intervening defendants and defendant O. A. Dow bring error.

Affirmed.

HILLIARD J., dissenting.

Frank Delaney, of Glenwood Springs, for plaintiffs in error.

Allyn Cole, of Glenwood Springs, for defendant in error.

BAKKE Justice.

This action was instituted in the district court of Garfield county by defendant in error, plaintiff below against one O. A. Dow and the Socony-Vacuum Oil Company Inc., for the recovery of rentals at the rate of one cent per gallon on gasoline sold, for the use of a filling station situated on a 60-foot strip of land, the location of which will hereinafter be discussed.

Following the bringing of the action, the Socony-Vacuum Oil Company paid the rentals which it held, into the registry of the court, and the suit against it was dismissed, concerning which there is no complaint. Fred Munro, John R. Munro and M. L. Munro, as surviving members of the last board of directors and as trustees of the Munro Mercantile Company, a defunct Colorado corporation, on motion, were permitted to appear as intervening defendants, and with Dow are here as plaintiffs in error.

The answer of interveners and defendant raised questions as to the ownership of three tracts of land: the sixty-foot strip above mentioned, a 125-foot square tract abutting thereon, and a 250-foot square tract. The trial court found that interveners are the owners of the 125-foot and the 250-foot tracts, and they will not be mentioned further, except as is necessary to elucidate the matter of ownership of the 60-foot strip, which interveners claim as a way of necessity to the 125-foot tract, and by adverse user. Plaintiff claims through a county treasurer's tax deed, a decree quieting title to the property, several quitclaim deeds, subsequent payment of taxes, and adverse user, under the sevenyear statute. '35 C.S.A. c. 40, § 143.

June 19, 1911, Arthur Havemeyer received patent from the United States to the south half of the northeast quarter of section 25, township 6 south, range 95 West, and other lands, in Garfield county, Colorado; September 23, 1911, he conveyed this property to Clara H. Havemeyer; October 22, 1912, Clara H. Havemeyer conveyed by warranty deed to the county commissioners of Garfield county a strip of land 60 feet wide, located in the southeast quarter of the northeast quarter of section 25, township 6 south, range 95 west, adjacent to, and north of, a certain railroad right of way, and running northeasterly and southwesterly, this deed containing the following: 'This strip of land to be used for county road purposes and in the event of use for other purposes shall revert to the grantor.' The railroad right of way is 200 feet wide, being 100 feet on each side of a center line, and parallels the 60-foot strip on the south. The highway as constructed is along the north side of the railroad right of way, but occupies about 10 feet of the south edge of the 60-foot strip. Plaintiff contends that the 60-foot strip reverted to the grantor because the county had failed to use it for highway purposes.

February 14, 1913, Clara H. Havemeyer deeded to the Munro Mercantile Company a parcel of land 125 feet square in the southeast quarter of the northwest quarter of section 25, township 6 south, range 95 west, and abutting the 60-foot strip on the north; February 13, 1913, Clara H. Havemeyer deeded said south half of the northeast quarter to Donald M. Forgan, except a store site conveyed to the Munro Mercantile Company, and subject to rights of way for county road, railroad, ditches and telephone lines; July 27, 1916, Forgan conveyed the said property to the Grand River Irrigation & Development Company, subject to the conveyance of a certain lot to the Munro Mercantile Company. November 15, 1909, and prior to the patent from the United States to Havemeyer, the Grand River Irrigation & Development Company had purported to convey to the county commissioners of Garfield county a strip of land 60 feet wide and adjoining the railroad right of way on the northerly side. The trial court held properly that this latter deed was inadmissible in evidence.

After the purchase of the 125-foot square tract in 1913, the Munro Mercantile Company erected a store building thereon, which was used for a period of two or three years, and then was moved to another location. Thereafter, and about the year 1933, one Short installed a gasoline filling station and equipment on the 60-foot strip, and he and his successors in interest paid rental to interveners for the use of this filling station, and the land adjoining the same, at the rate of one cent per gallon of gasoline sold. July, 1937, defendant entered into an agreement with interveners for the use of said filling station, but Before doing so he investigated the situation on the ground, taked to plaintiff, and told her that he contemplated the renting of the station, and she at that time did not indicate that she claimed any interest therein. Subsequently she notified defendant that she was the owner of the 60-foot strip and demanded payment of the rentals to her. Defendant refused to make further payments either to interveners or to plaintiff, but retained the rentals in his own account at the bank. The agreement between defendant and interveners included for the rental the use of the 125-foot tract, the filling station and equipment located on the 60-foot strip, and the 250-foot tract and the improvements thereon, located south of the railroad right of way. After defendant had taken possession of these three tracts, plaintiff agreed to pay rental to him at the rate of $4 per month for use of the improvements on the 250-foot tract.

August 18, 1923, one G. A. Taff, agent, received treasurer's deed from the treasurer of Garfield county to the south half of the northeast quarter of section 25, township 6 south, range 95 west (which description included the sixty-foot strip and the 125-foot square tract), and other property, as a result of the 1914 tax sale for the taxes for the year 1913. This treasurer's deed contains, inter alia, recitals to the effect that the treasurer sold the land to the county on the first day of the sale, which recitation, it is alleged, under numerous decisions of this court, renders the deed void on its face.

Challenge also is made to the validity of the deed because it was not properly acknowledged, but since that point was not raised below, we disregard it here.

Subsequently, by above mentioned conveyances, Jacob Eshe, husband of plaintiff, acquired a purported title to the property described in the treasurer's deed, although it is apparent that at the time of filing suit plaintiff had no title to the property, the purported title at that time being in Jacob Eshe. During the trial of the case, and after motion had been filed by defendants and interveners for judgment, plaintiff filed what is alleged to be a correction deed, whereby land conveyed by Jacob Eshe to plaintiff, and described as the south half of the northeast quarter of section 35, was claimed to be land known and described as the south half of the northeast quarter of section 25. Interveners and defendants made objection at the time to the admission of the correction deed in evidence, but we think the objections are without merit, as we shall indicate later.

After hearing, the trial judge rendered a written opinion, which appears in the record, in which he found that the two tracts in question, namely, the 125 and 250-foot tracts, belong to interveners, but that the 60-foot strip, which had been deeded to the county of Garfield for road purposes, belongs to plaintiff, and that therefore defendant should account to plaintiff for rentals at the rate of one cent per gallon on all gasoline sold during the time he had operated the filling station, which rentals amount to $800, of which the Socony-Vacuum Oil Company had deposited the sum of $64.05 into the registry of the court, leaving a net due of $735.95. The trial court then credited, as against this amount due to plaintiff, the sum of $188 on account of rentals due from her for the buildings on the 250-foot tract, leaving a balance of $547.95, and entered judgment: that the sum of $64.05 in the registry fund of the court be paid to plaintiff; that plaintiff have judgment against defendant for the further sum of $547.95 with interest thereon; that defendant account to plaintiff and pay over to her rentals computed at the rate of one cent per gallon for all gasoline sold by defendant since the 31st day of March, 1942.

Counsel for plaintiffs in error summarizes his specification of points as follows: (1) The treasurer's deed did not confer title. (2) The county is the owner of the 60-foot strip, or it has reverted to interveners. (3) There was no contract between plaintiff and defendants to pay rent nor was the amount of rent determined. (4) Plaintiff's motion to dismiss should have been granted. (5) The trial court erred in the admission of certain evidence and in the exclusion of other evidence. We shall consider these in order.

1. Even if it is conceded that the treasurer's deed, upon which plaintiff...