Skeritt Inv. Co. v. City of Englewood

• Decision Date: 06 July 1926
• Docket Number: 11291.
• Citation: 248 P. 6,79 Colo. 645
• Parties: SKERITT INV. CO. v. CITY OF ENGLEWOOD et al.
• Court: Colorado Supreme Court

248 P. 6

79 Colo. 645

SKERITT INV. CO. v. CITY OF ENGLEWOOD et al.

No. 11291.

Supreme Court of Colorado

July 6, 1926

Department 3.

Error to District Court, Arapahoe County; S.W. Johnson, Judge.

Action to quiet title by the Skeritt Investment Company against the City of Englewood and another. Decree quieting title save as to one lot, and from part of decree affecting that lot plaintiff brings error.

Affirmed.

James J. Sullivan, of Denver, for plaintiff in error.

Luke J. Kavanaugh, of Denver, for defendants in error.

CAMPBELL J.

This action is by the Skeritt Investment Company, a corporation against the city of Englewood and William Beitenman to quiet in the plaintiff its title to different lots or tracts of land situate in the city, in some of which it is alleged the city, and in the tract that Beitenman, claim to be interested. The only defendant who appeared is Beitenman whose answer contained a traverse of the complaint and a counterclaim in which he asked to have quieted in him the title of a triangular piece of land, included in the complaint, designated on a recorded plat as lot 50 in block 1 of Shady Side addition to the city of Englewood. The decree of the trial court granted the requested relief as against the city, but quieted in Beitenman title to lot 50. The investment company is here with its writ of error to review that part of the adverse decree affecting lot 50.

Running diagonally through the city of Englewood in a northwesterly and southeasterly course there was a highway called Hampden or Sheridan avenue, indifferent names for the same highway. Apparently there was no statutory dedication of the highway when it was first opened up or used, which was more than 50 years ago; but it is not important here whether the highway originally was the result of a common-law or of a statutory dedication by the owner of the land on which it ran. For it was being constantly traveled and used as such for many years before the city of Englewood was in existence, and after that municipality was incorporated it was traveled, and considered by the city, as one of its streets until a portion of it was vacated and abandoned as such, as will be presently mentioned. The land involved in this action was a part of a larger tract owned by Mary Skeritt upon whose death title was vested in her lawful heirs. After Thomas Skeritt her son and one of the heirs at law, was appointed as administrator of the estate of his mother, he subdivided a portion of her lands into blocks and lots under the name of Shady Side addition to the city of Englewood, and made a plat thereof which he filed in the office of the county recorder. The controversy now before us is as to the ownership of what is designated on this plat as lot 50 of block 1, which is bounded by Broadway on the east, the city ditch on the south, South Acoma street on the west, and Hampden avenue on the north. The administrator had not first obtained permission of the county court in which the estate was being probated to make this addition. Thereafter on May 5, 1910, he filed in the county court his petition setting forth the fact that he had previously and without permission of the court subdivided and platted the land in question and asked for an order of the court confirming and ratifying his previous acts therein. In this petition the administrator stated that fractional lot No. 50 in block 1 of the addition was of no value or practical use to the estate; that it had already interfered, and would seriously interfere, with the development of the estate and the immediate sale of lots Nos. 49 and 48 in the same block adjoining it on the south. Petitioner further alleged that this lot is a small fractional triangular piece adjoining Hampden avenue, and for that reason it should be made a part of the avenue, being best suited for that purpose, and good for no other, and that the best interest of the estate will be conserved by dedicating the same to the county of Arapahoe for road purposes, the same to constitute a part of Hampden avenue, and the administrator in the petition purported expressly to make such dedication. He signed the petition as administrator and as an heir. The other heirs of the estate who, together with the administrator, are the sole grantors to the defendant Beitenman of lots 48 and 49, as will hereinafter be referred to, joined with the administrator in the petition and asked the court to grant the prayer thereof, which the court did on the same day by entering an order expressly authorizing and empowering the petitioner to dedicate fractional lot 50 for the purposes of a roadway and to make it a part of Hampden avenue and thereby confirmed petitioner's previous acts. Thereupon the proper instruments of dedication were filed with the county recorder. That section of Hampden avenue which ran diagonally through the city, including the part lying to the north of and contiguous to the addition, was at some time after the incorporation of the city swung northward and made to run due east and west, and thereafter that part of the former Hampden avenue immediately north of and adjoining lot 50 was abandoned and no longer used as a highway. Following the entry of the above-mentioned order of the county court, and about one month later, all of the Skeritt heirs, being the same persons who instituted the dedication proceeding in the county court or authorized and requested its filing, conveyed by warranty deed to the defendant Beitenman, for $1,500, lots 49 and 48, lying immediately to the south of and adjoining fractional lot 50. After Beitenman bought these lots, he erected a building thereon fronting north, as he supposed, on Hampden avenue, built a sidewalk across what was former lot 50, which from that time forward was used by the public as a sidewalk. The building on the premises has been occupied by a drug store and other mercantile establishments. Under the foregoing state of facts, we think the district court was right, and that its judgment must be affirmed for the following reasons:

1. Shady Side addition was carved out of a larger tract of land which was a part of the estate of Mary Skeritt, deceased. Upon her death all of her property became vested in her heirs. The title to Shady Side addition thus passed to them. These heirs gave a warranty deed to the plaintiff corporation which purported to convey to it, among other lands, all of Shady Side addition, 'excepting lots 46 to 50, block 1.' If the plaintiff did not, by this deed, acquire title to lot 50 in block 1, it is not in a position to maintain this action or to question the title which the trial court by its decree confirmed in the defendant Beitenman.

2. If, however, the deed from the heirs to plaintiff corporation did purport to convey lot 50, nevertheless the plaintiff is estopped in equity to question the title of the defendant.

Taking up these two propositions in inverse order, we observe first that the Skeritt heirs, by whose acts the plaintiff corporation is bound, expressly requested the county court to authorize them to dedicate, and upon its order they did dedicate, lot 50 and had it added to and included in Hampden avenue, and represented in their petition for such authority that lot 50, in the circumstances, was of no value to the estate, and asked for and obtained authority to confirm their previous unauthorized acts of dedication, as that would facilitate the...