Overland Mach. Co. v. Alpenfels

• Decision Date: 17 April 1902
• Citation: 30 Colo. 163,69 P. 574
• Parties: OVERLAND MACH. CO. et al. v. ALPENFELS et al.
• Court: Colorado Supreme Court

69 P. 574

30 Colo. 163

OVERLAND MACH. CO. et al. v. ALPENFELS et al.

Supreme Court of Colorado

April 17, 1902

Appeal from district court, Arapahoe county.

Consolidated actions to recover real estate by Caroline Alpenfels and Thomas F. Lynch against the Overland Machinery Company and others. From a judgment for plaintiffs, defendants appeal. Reversed.

Caroline Alpenfels and Thomas F. Lynch, appellees, as plaintiffs below, brought separate actions against the defendants (appellants here) to recover possession of certain parcels of land in the city of Denver. The facts of the two cases are in all material respects the same, and the same legal principles govern each. By consent of parties, they were consolidated and tried as one action. The judgment was in favor of the plaintiffs, and the defendants have brought the case here by appeal. There was an agreed statement of facts, the parts of which material to the decision are here reproduced:

In the month of April, 1868, Frederick J. Ebert and Francis M. Case were the owners of certain lands in the city of Denver Arapahoe county, and on the 7th day of that month platted the same into lots and blocks, streets, alleys, and parks, and named the same 'Case & Ebert's Addition to the City of Denver.' The plat was filed and recorded in the office of the county clerk, and upon it was a statement by which the makers purported to grant to the city of Denver the perpetual right of way to all the streets and alleys and public parks thereon shown. On the plat is a block numbered 12, which is 400 feet long by 125 feet wide, consisting of 16 lots; and on the northwesterly side of the block, and contiguous thereto is a street called 'Depot Street,' 400 feet long and 55 feet wide; and on the northwesterly side of Depot street is a parcel of land owned and occupied by the Denver Pacific Railway & Telegraph Company for trackage purposes, which was conveyed to that company by Case & Ebert on the 11th of May 1868. On March 17, 1871, Frederick J. Ebert, who was then the owner of all of block 12, made conveyance to Francis M. Case of certain property designated on this map, and by reference thereto, which in the deed is thus described: 'All block numbered twelve (12) in Case and Ebert's addition to the city of Denver; also doth quitclaim all title, in being and reversion, to the land now occupied by Depot street, * * * lying contiguous to and adjoining said block.' May 4 1871, the city council of the city of Denver, by ordinance lawfully vacated Depot street, adjacent to block 12; and on July 1, 1875, it passed a resolution that when streets and alleys in the city have been vacated by ordinance the mayor is authorized to execute a quitclaim deed to the owners of the lots abutting on the vacated streets; and in pursuance of that resolution there was executed by the mayor on the next day a quitclaim deed to Francis M. Case of what was formerly known as 'Depot Street,' fronting upon block 12, which had theretofore been vacated. On January 15, 1878, Francis M. Case by deed conveyed back to Frederick J. Ebert, his own immediate grantor, block 12, thus describing it: 'All of block number twelve (12) in Case and Ebert's addition to Denver, together with, all and singular, the hereditaments and appurtenances;' and the deed contained the usual clause including therein all the estate and interest Case had in the premises. On December 16, 1881, Francis M. Case conveyed to Arthur Hendey and Herman H. Meyer that portion of Depot street contiguous to block 12 under the following description: 'All that strip of land, formerly known as 'Depot Street,' lying northwesterly and opposite block numbered twelve (12) in Case and Ebert's addition to Denver, and between said block and the grounds of the Denver Pacific Railway Company; being fifty-five feet (55') in width and four hundred feet in length.' On January 13, 1882, Mary J. Ebert and James M. Strickler, as administrators of the estate of Frederick J. Ebert, conveyed lots 1, 2, and 3 in block 12 to John G. Gunther, thus described: 'Lots number one (1), two (2), and three (3) in block number twelve (12), Case and Ebert's addition to the city of Denver.' In the deed there was no reference to appurtenances. The plaintiffs connect themselves by divers mesne conveyances with the title of lots 1, 2, and 3 thus transferred to Gunther, and all the intermediate deeds describe the lots by their appropriate numbers and by reference to the recorded plat, and contain the usual clauses and covenants of a deed of warranty; and the defendants deraign title to Depot street by proper conveyances from Hendey and Meyer, in all of which the strip is described as in the deed to them. All of these instruments referred to were seasonably placed on record.

The accompanying map shows the ground in controversy, and it consists of the shaded strip 55 feet in width by 75 in length immediately in the rear of lots 1, 2, and 3 in block 12:

EXHIBIT '1 a.'

(Image Omitted)

From this map it will be observed that the lots in block 12 run through from Blake street, on the southeast, to Depot street, on the northwest,--a distance of 125 feet; and it appears in the record that the frontage of these lots was on Blake, and their rear on Depot, street.

Such other facts as are necessary to elucidate the points involved are found in the opinion.

Yeaman & Gove, for appellants.

Edwin H. Park, for appellees.

CAMPBELL, C.J., after the foregoing statement, delivered the opinion of the court.

The respective contentions of the parties may thus be summarized: Both of them claim to be the owners in fee of this disputed strip. The plaintiffs maintain that, when the city council vacated that portion of Depot street contiguous to block 12, the title thereto reverted to the abutting lot owners; or if Depot street never was a public street, or was only a highway as to abutting lot owners, then in these abutting owners was vested the fee to the road, subject to any possible easement,--to each one such portion of the vacated strip or existing way as was immediately adjoining his lot. And since Case then owned all of block 12, the legal title of the street, if vacated, lying contiguous to that block, reverted to him, or was his, in any event, by virtue of his ownership of the lots. So that when, in 1878, Case conveyed to Ebert all of block 12, without any reservations in the deed, and although the street was then vacated, the grantee took at least to the middle line of what was formerly Depot street. Having connected themselves with Ebert's title to lots 1, 2, and 3, plaintiffs therefore claim the ownership of that portion of the former street lying opposite the rear of their lots. The defendants' position is that under the agreed facts the deed of January 15, 1878, from Case to Ebert, describing all of block 12 in Case & Ebert's addition by reference to the recorded plat, and the subsequent deeds by which plaintiffs deraign title to lots 1, 2, and 3, limited the grant to the dimensions of the lots and block as exhibited by the plat, and conveyed no part of the premises in controversy, but that title to the latter remained in Case after his conveyance of block 12 to Ebert, and Case afterwards transferred title thereto to Hendey and Meyer, defendants' remote grantors. Their further position is that even if a conveyance merely by lot numbers, made before a street delineated on the map was vacated, would carry title in the grantees to the center line of the vacated street, yet after its vacation a deed merely describing the lots by number restricts the grantees to the dimensions as they are defined on the map, and entirely excludes the street.

It may be stated as a general rule that a conveyance of a lot which borders upon a highway presumptively carries the title to the center of the street, if the grantor owns the land on which the highway is laid out (2 Devl. Deeds, § 1024, and cases cited), and that one is presumed to convey the highest estate he owns in the lands granted, unless a smaller estate is described (City of Denver v. Clements, 3 Colo. 472). And the law in this jurisdiction (Olin v. Railroad Co., 25 Colo. 177 53 P. 454) is that upon a vacation by a city of a street the title thereto reverts to the abutting lot owners, and not to the dedicator, where such lots have been conveyed by the dedicator by unrestricted deeds of conveyance. Both parties concede the last rule, and both rely upon it. When this plat was filed we had no statute declaring the force and effect of the making and recording of a plat of an addition to a city. Mouat Lumber Co. v. City of Denver, 21 Colo. 1, 40 P. 237. There was therefore no statutory dedication of Depot street. If there was a dedication at all, it was a common-law dedication; but, as the city neither expressly nor impliedly accepted it, there seems not to have been even a common-law dedication, so far as the municipality is concerned. Under the doctrine of City of Denver v. Clements, supra, and other well-considered cases, we are of opinion that when Case & Ebert laid out their addition and filed their plat, on which there was delineated Depot street, though no...