Norris v. City of Pueblo
| Decision Date | 12 December 1898 |
| Citation | 12 Colo.App. 290,55 P. 747 |
| Parties | NORRIS et al. v. CITY OF PUEBLO. [1] |
| Court | Colorado Court of Appeals |
Error to district court, Pueblo county.
Condemnation proceeding by the city of Pueblo against John Norris and others. There was a judgment for plaintiff, from which defendants bring error. Reversed in part.
M.J. Galligan, for plaintiffs in error.
S Harrison White, for defendant in error.
The Arkansas river runs through the city of Pueblo. As originally laid out, there were two corporations with which we are concerned, which may be designated as South and Central Pueblo. Central Pueblo was a subdivision of the city platted and laid out by the state, and a perpetual right of way and full jurisdiction over all its streets and alleys was granted unto the city. South Pueblo, so far as we can gather from the record, was laid out either by the heirs or grantees of Nolan, to whom congress had granted 11 leagues of ground bordering on the river at that point. It is either conceded or was proven, that the land which bordered on the river was included within the grant, and the only matter disputed between the parties is as to whether the title of the Nolan heirs or grantees, which concededly embraced the lots on the south side of the river, carried those rights to the meander line of the stream as it was surveyed or ran to the thread or middle of the river. The city projected a public improvement which either consisted of or included the building of a levee along the north bank of the stream to protect the city and the property of its citizens from periodical overflows. The improvement as laid out necessitated the taking of certain property. To obtain the requisite title, and to determine the proper compensation to the owners, the city filed a petition to condemn certain property. The plaintiffs in error Norris and Whitman were made defendants, and it is with their rights only that we are concerned. The only land which was owned by either of them which the city desired to appropriate was a small piece on the southerly side of fractional lot 27, which Norris owned. The petition neither accurately nor well described it, nor do we find any description in the record to which we can resort for the purpose of stating its accurate boundaries. It is always referred to as a strip colored in pink. The strip is probably so colored in the plat that is found in the record, but this is not such a description or statement of lines as is consistent with the accuracy which ought to be present in all decrees for the purposes of condemnation. In blocks 3 and 4 of Central Pueblo, as laid out by the state, the east and west lines of the lots ran substantially northeast and southwest in direct lines. The westerly boundaries ran in straight lines, and east and north, which would make all the lots, except those which were fractional, parallelograms. The fractional lot 27, which concededly belonged to Norris, had for its southerly boundary a line which ran more nearly east and west than in any other direction, and intersected the northerly boundary of the lot a short distance from Seventh street, as it appears on the plat. The westerly boundary was 31 feet long, so that Norris' land, as it was conveyed to him by deed from the state, was a triangular strip 31 feet at one end, running to a point at the other, and made the section which is described as the part included in pink. Norris' title to this particular piece of land is undisputed. The title which the state attempted to acquire by these proceedings was 10 feet wide, counted from a point beginning at the southerly side of the piece. How far it ran or how much land it took, we confess ourselves unable to spell out of the record, but this difficulty does not embarrass our decision or the real controversy between the parties. The balance of lot 27, and all of lot 28, in block 4, and lots 1, 2, and 3, in block 3, in so far as they are affected by these proceedings, were not included in the grant from the state, and, if we are right in our position respecting the limits and extent of the grant, were not public lands nor part of the school sections which were granted by the general government to the state. Title to no part of them is asserted by the plaintiffs in error. They never assumed to buy it of anybody having title, or had any grant from the state which they produced, and whatever claim they had, if any, was that of squatters, who built small tenements to rent to their less fortunate neighbors. The real nub of the controversy is over the value of those little houses which Norris and Whitman put up on what they assumed and confessed was either public land or land belonging to the Nolan heirs or their grantees. It is quite true deeds were made by the parties who were in possession, but Norris and Whitman conceded that they knew they acquired no right by the transfers, and simply used the deeds as a kind of muniment of title, whereby, as landlords, they might obtain rent from the occupants. Proof was offered in regard to these various matters, and all grants, plats, confirmatory acts of congress, and maps of boundaries and description were introduced in evidence. The parties also offered proof respecting the boundary of the Arkansas river, which evidence was put in for the purpose of attempting to establish the limits of the grant to Nolan and his heirs. It appears that in 1872, for the purpose of determining the area which was conveyed by the grant and the confirmation, the official surveyor ran the meander of the right bank of the Arkansas river. This seems to have been run for the purpose of determining the northern boundary of the lots included in the grant to Nolan, and for the purpose for which meanders are run, and that is the computation of the amount of land which was conveyed by the grant and assured by the confirmatory act. This survey of Kellogg's was simply a meander line of that bank of the river, and, otherwise than in determining the general course, direction, and boundary of the stream, seems to have had no other purpose. A controversy appears to have arisen between the Nolan heirs or their grantees and the state respecting the dividing line between their property and that of the state. In order to settle this question, the state authorities directed the engineer, who was a state officer, to make a survey of the Arkansas river, to determine the line between the state lands and lands belonging to Nolan and his heirs and grantees. He was directed to make this survey in conjunction with an engineer to be appointed as their representative, and this was accordingly done, and Stimson on behalf of the state, and Nettleton on behalf of the grantees of Nolan and his heirs, ran the thread of the river, and established its boundaries, and this was known as the "Stimson-Nettleton Survey." Since that time all owners of land deriving their title from the grant of Nolan and the state have recognized that line as the true boundary between the state lands and those comprised in the Nolan grant. Taking this line as true, the land which the city proposed to take, and to which the plaintiffs in error asserted a possessory right, and whereon they had built their little structures, was not public land at all, and the plaintiffs in error never had any title to it, any right of possession, nor could they have acquired one. They built with full knowledge of their want of title, and took chances on the duration of their possession and the loss of what they built. This...
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