Pipe v. Smith

• Decision Date: 01 December 1879
• Citation: 5 Colo. 146
• Parties: PIPE v. SMITH.
• Court: Colorado Supreme Court

5 Colo. 146

PIPE v. SMITH.

Supreme Court of Colorado

December, 1879

Appeal from District Court of Jefferson County.

ON the 9th of May, 1878, John Pipe, the appellant, filed in the District Court of Jefferson County, his complaint, alleging as follows:

1st. That sometime during the year of 1859 or '60, William A H. Loveland, of the town of Golden, in the county of Jefferson and State of Colorado, and others, citizens of the United States, settled upon the lands hereinafter described as embracing the town site entry of the said town of Golden (formerly Golden City), organized a town company, laid off in blocks and lots, with streets and alleys, all of said lands except that portion lying east of East street in said town and the respective occupants of lots in said town, erected houses and other buildings thereon, and otherwise improved the same, all of which was done before the government of the United States made a survey of such lands.

2nd. That afterwards, to wit, on the 11th day of December, A. D 1863, and prior to the entry of said town site, the citizens of and residents, holders and occupants of lots in said town by their agreement in writing of that date, subscribed and delivered by them to the said W. A. H. Loveland, agreed with the said Loveland and with each other, that if the said Loveland, who was still then a citizen and large property owner of said town, and who also subscribed the said agreement as a party thereto, would advance and furnish to the probate judge of said county of Jefferson the necessary sum of money to enable such probate judge to enter and pay for such lands, he, the said Loveland, should be entitled to a deed from such probate judge to all the residue of such lands after they, the said citizens and occupants of lots in said town, should receive deeds of conveyance from such probate judge for all lots held by them respectively, and that they would not become litigants as against the land so to be entered and conveyed. That the said Ensign B. Smith, defendant, as one of said citizens and settlers, subscribed the said agreement, and was and is a party thereto. That in pursuance of said agreement, the said Loveland afterwards, to wit, on the day and year last aforesaid, as plaintiff is informed and believes, furnished and advanced to the said probate judge the necessary sum of money to enable him, the said probate judge, to enter and pay for said lands, to wit, the sum of five hundred dollars.

3d. That afterwards, to wit, on the 18th day of January, A. D. 1864, at the proper land office of the United States, under the act of Congress entered 'An act for the relief of citizens of towns upon the lands of the United States under certain circumstances,' approved May 23, 1844, and with the said sum of money so advanced by the said Loveland, Henry Altman, then probate judge of said county of Jefferson and then Territory, not State of Colorado, as such probate judge, entered and paid for the said lands, in trust however, 'for the several use and benefit of the occupants thereof, according to their respective interests,' and which said land are situate in the county of Jefferson and State of Colorado, and are known and described as follows, to wit: The west half of the southwest quarter of section twenty-seven (27), the east half of the southeast quarter of section twenty-eight (28), the east half of the northeast quarter of section thirty-three (33), and the west half of the northwest quarter of section thirty-four (34), in township three (3), south of range seventy (70) west. That in pursuance of such entry and in consideration of the said sum of money so paid as aforesaid, the government of the United States afterwards issued patents for the said lands, bearing date the first day of September, A. D. 1866, running to the said Henry Altman, probate judge of the county aforesaid, his successors in office and assigns in trust, however, as aforesaid.

4th. That afterwards, by a private and special act, approved March 3d, 1864, entitled 'An act to legalize and confirm the entry of the town site of Golden City,' the Legislative Assembly of the then Territory of Colorado ratified and confirmed the said entry and the said agreement.

5th. The plaintiff is informed and believes that afterwards, to wit, either in the latter part of the month of March, to wit, after the 11th day of March, or in the month of April, 1864, the exact date of which he is unable to ascertain, in pursuance of the act of the Legislative Assembly of the then Territory of Colorado, approved March 11th, 1864, entitled an act prescribing rules and regulations for the execution of the trust arising under the act of Congress, entitled 'An act for the relief of citizens of towns upon lands of the United States under certain circumstances,' the said Henry Altman, probate judge as aforesaid, gave public notice of the entry aforesaid of said town site, by posting notices thereof in three public places in said town, the precise places of which, however, the plaintiff is unable to state, and by publishing the said notice in a newspaper called the Rocky Mountain News, at that time printed and published at Denver, in the county of Arapahoe, in the then Territory of Colorado, once a week for three successive weeks. That no newspaper was at that time printed and published in said county of Jefferson, and that the said Rocky Mountain News was the nearest newspaper to said town of Golden City, printed and published in said Territory of Colorado, and that the said notice contained an accurate description of the lands so entered as aforesaid, as the same were stated in the certificate of entry of said lands received by the said probate judge from the land officers at the time of such entry.

6th. That after the said citizens and occupants of lots had received deeds of conveyance from the probate judge of said county of Jefferson to the respective lots and parcels of said lands, held by them respectively, and of all lots and parcels of said lands to which they were respectively entered, in pursuance of law and of said agreement, Jonas M. Johnson, who had then become probate judge of said county of Jefferson, duly qualified and acting as such, on, to-wit, the 23d day of December, A. D. 1864, in pursuance of law, and the trust in him reposed as such probate judge, and in pursuance of said agreement, did, as such probate judge, make, execute, acknowledge and deliver to the said William A. H. Loveland a deed of conveyance of, in and to the said lands so entered in trust as aforesaid, bearing date the day and year last aforesaid, which deed of conveyance, however, contained an exception in words as follows: 'Excepting what lots has heretofore been deeded to occupants or settlers, and what now remains in litigation, and the title yet undetermined by the probate judge holding them in trust, for the occupants of the town site of Golden City, under the pre-emption laws of Congress for the use of the occupants thereof,' and which said deed of conveyance was afterwards, to-wit, on the 23d day of December, A. D. 1864, duly recorded in the office of the recorder of deeds of said county of Jefferson, in book 'F,' page 77, to which record reference is hereby made for greater certainty.

7th. That all that portion of the said lands embraced in the sid town site entry lying east of East street, in said town, containing twenty-eight and 30-100 acres, more or less, was in litigation between one Henry B. Hine and the said Ensign B. Smith, defendant herein, in a proceeding there pending before the said J. M. Johnson, probate judge of said county of Jefferson, wherein the said Hine was plaintiff and the said Smith defendant, at, to-wit, the date of making and delivery of the said deed of conveyance to the said Loveland, by the said probate judge.

8th. That afterwards, to-wit, on the 11th day of October, A. D. 1869, one Joseph Mann, then probate judge of said county of Jefferson, as such probate judge, made, acknowledged and delivered to the said Ensign B. Smith, his certain deed of conveyance of that date, of, in and to the said parcel of said lands so lying east of East street, in said town of Golden City, and more particularly described as follows: commencing at the northeast corner of the northwest quarter of the southwest quarter of section number (27) twenty-seven, in town (3) three south, range (70) seventy west, running thence west (20) twenty chains; thence south (2) two chains; thence south 34~30', twenty-three and one-fourth (23 1/4) chains; thence east (7) seven chains; thence north (20) chains, to the place of beginning, the same containing twenty-eight and thirty one-hundredths acres, and being that portion of the northwest quarter of the southwest quarter of section twenty-seven (27), township three (3) south, range seventy (70) west, lying east of East street; that such deed was made and delivered to the said Ensign B. Smith, defendant, by the said Joseph Mann, probate judge, as the result of the said litigation between the said Hine and Smith concerning the same parcel of land, and in pursuance of a stipulation and agreement made and entered into in writing between the said Hine and Smith, as the plaintiff is informed and believes.

9th. That the plaintiff is informed and believes, and so states the fact to be, that the said Henry B. Hine was not an occupant of, nor in possession of, nor entitled to the possession or occupancy of the said parcel of land, or of any part thereof so deeded and conveyed as aforesaid to the said defendnat, Ensign B. Smith, at the date of the said town site entry, to-wit, on the 18th day of January, A. D. 1864, or at any time subsequent thereto.

10th. That the plaintiff is informed and believes, and so states the fact to...