Pueblo & A.V.R. Co. v. Beshoas

• Decision Date: 19 December 1884
• Citation: 5 P. 639,8 Colo. 32
• Parties: PUEBLO & A. V. R. CO. v. BESHOAS.
• Court: Colorado Supreme Court

5 P. 639

8 Colo. 32

PUEBLO & A. V. R. CO. v. BESHOAS.

Supreme Court of Colorado

December 19, 1884

Appeal from district court, Las Animas county.

Chas. E. Gast, for appellant.

Willard Teller, for appellee.

HELM J.

This action was brought by appellee against appellant to recover damages for a trespass upon the former's 'close.' The injuries averred and proven consisted in the damaging of fences, crops, irrigating ditches, etc., by the construction of appellant's railroad upon the across the premises described in the complaint. The motion for a nonsuit should have been sustained by the court below. Plaintiff made no effort to prove ownership of a possessory interest in the premises, under our statutes relating to the occupancy of the public domain. He relied upon a certain deed from one Mary Chene, which purported to convey 'all her right title, and interest in' a quarter section of land. Fifteen acres of this quarter section were specified in the complaint. But plaintiff's own testimony established, beyond question, the fact that the deed from Mary Chene was merely a mortgage; that it was given to secure the payment of a debt amounting to $638; that the mortgagor had remained in possession, and that plaintiff had, at the time of trial of this cause, taken no steps to foreclose, or sell, or obtain possession. There is nothing to show that at the date of commencing suit plaintiff could even have instituted foreclosure proceedings.

It is true that, according to his testimony, plaintiff had actually purchased, and was entitled to retain from the quarter section mortgaged, two acres; but it also in like manner appears that he was to make a selection of this two-acre tract, and that up to the beginning of this action he had not made such selection. We are not even advised whether he contemplated reserving his two acres from the ground described in the complaint; for aught that appears he may ultimately have concluded to choose the same from another part of the tract covered by the mortgage. It is evident the suit was brought and tried upon the theory that, by virtue of the deed, he held title to the entire quarter section, or at least to the fifteen acres alleged to have been damaged. This is a mistake. Plaintiff held no legal title whatever to any part of the premises. The common-law rule in this particular concerning mortgages is abrogated; and by statute in this state the equitable doctrine, in...