Olin v. Denver & R.G.R. Co.

• Decision Date: 06 June 1898
• Citation: 53 P. 454,25 Colo. 177
• Parties: OLIN v. DENVER & R. G. R. CO.
• Court: Colorado Supreme Court

53 P. 454

25 Colo. 177

OLIN v. DENVER & R. G. R. CO.

Supreme Court of Colorado

June 6, 1898

Appeal from district court, Pueblo county.

Action by Henrietta S. Olin against the Denver & Rio Grande Railroad Company. There was a judgment for defendant, and plaintiff appealed. Affirmed.

M. J. Galligan and James Owen, for appellant.

Wolcott & Vaile and Pattison, Waldron & Devine, for appellee.

GABBERT J.

The vital question presented for determination in this case is to whom does the title to real estate, dedicated for street purposes over lands platted as a town site, in accordance with the statutes of the state, revert, upon the vacation of the street?

This question arises upon the following facts: In 1872, E. W Olin, as the owner of a tract of land, platted and surveyed it as a town site, under the name of 'South Pueblo,' which tract included within its limits a portion of a street designated on the plat thereof as 'B Street.' Shortly after the platting of this town site, the fee-simple title to the lots so platted, abutting each side of a portion of B street, became vested in appellee, which was the status of the title to such lots at the time of the commencement of this action. The conveyances through which appellee deraigns title to these lots described them according to the plat thereof and by reference thereto. Subsequent to the date when appellee acquired title to these lots, and while it owned them, the city council of South Pueblo vacated that portion of B street upon which they abut, and it is this part of that street which is the subject of controversy between the parties to this action. After the vacation of this portion of B street, Olin conveyed whatever interest he had in these premises to appellant, who commenced an action to recover them from the appellee. It is conceded that whatever title to these premises inured to her grantor, by virtue of the vacation of that portion of B street in controversy, she has acquired; he never having made any conveyance thereof other than to her, except such title as may have passed by conveyance of the abutting lots. The judgment of the trial court was in favor of appellee, from which appellant prosecutes this appeal.

Appellant bases her claim of title to the premises in dispute on the proposition that, upon the vacation of that portion of B street which includes them, the title thereto reverted to the original dedicator, E. W. Olin, and she, having succeeded to his interest, is now the owner; while, on behalf of appellee it is contended that upon the vacation of this portion of B street the title thereto vested in the then owner of the lots abutting thereon. The law in force at the time these premises were platted will be found in article 11, c. 84, p. 618 et seq., Rev. St. 1868. Section 5 of this article provides, in effect, that the title to the premises designated as streets, on a tract platted as a town site, shall vest in the city, in trust for the uses expressed in the plat; and, the statute thus specifically directing where the title to the streets shall vest, it is argued by counsel for appellant that the grantee of lots in such plat only takes title to the ground actually included within the boundaries thereof, and no interest in the street abutting; and, the title of the latter being held in trust by the city, that upon vacation it reverts to the original proprietor of the town site.

When a vendee purchases a lot marked upon a plat, reference being made to such plat for a description of the premises conveyed, the construction of the intention of the grantor making such conveyance is that his vendee is entitled to all the appurtenant advantages and rights which the plat proclaims to exist, so far as the land included in it is owned by the grantor. City of Denver v. Clements, 3 Colo. 472. By such plat, the right which each lot holder in the premises therein described has in common with other lot owners and the public, in the streets thereon designated, is exhibited, and a reference to such plat makes it a material part of the deed, and has the same effect as if it had been incorporated in such conveyance. Id. When there is no reservation in an absolute deed, the most valuable estate passes of which the grantor is seised. Id. The conveyance under which appellee acquired title to the lots abutting upon the premises in dispute refers to the plat, so that, under the authorities cited, such plat became a part of these deeds. By this plat, it was apparent that the land so platted as streets was for the benefit of the owners of the lots embraced in such plat as well as for the use of the public; and, there being no reservation in any deed through which title was acquired to the lots abutting upon that part of B street subsequently vacated, whatever title the original dedicator of this street had therein passed to those who acquired title to such lots,--the general rule being that, where a grantor conveys a parcel of ground bounded by a street, his grantee takes title to the center of such street, to the extent that the grantor has any inerest therein, unless, by the terms of the grant, the boundary of the granted premises is restricted to the line of such street. 1 Warv. Vend. 382; In re Robbins, 34 Minn. 99, 24 N.W. 356; Martind. Conv. § 104; Kneeland v. Van Valkenburgh, 46 Wis. 434, 1 N.W. 63.

It is contended, however, by appellant, that this rule is not applicable in this case, for the reason that the fee to the disputed premises was vested in the city, in trust, subject to a reversion to her grantor, if vacated as a street, at the time he parted with his title to the lots abutting thereon. This proposition is based upon the assumption that, the fee of the street being in the city, the proprietor of the town site had no interest in the street to convey, when he granted title to the abutting lots, and therefore granted none in such street. This proposition is defeated by the express words of the statute above cited. The platting of these premises as a town site, in accordance with...