Smith v. Griffin

• Decision Date: 25 April 1890
• Citation: 14 Colo. 429,23 P. 905
• Court: Colorado Supreme Court
• Parties: SMITH v. GRIFFIN et al.

23 P. 905

14 Colo. 429

SMITH v. GRIFFIN et al.

Supreme Court of Colorado

April 25, 1890

Appeal from superior court of Denver.

W S. Decker, for appellant.

Markham & Dillon and E. A. Clark, for appellees.

HELM C.J.

Appellant Smith and one Campau, being the owners of a certain portion of blcok 64, in the west division of the city of Denver divided the same into seven lots. Five of these lots fronted on Champa street, the remaining two, on Eighth street. No plat was filed, however, as provided by statute, and no acceptance of the new arrangement took place by the city. Upon the front of each of the five lots first mentioned, they constructed a dwelling-house, and upon the rear a coal-house and ash- pit. For convenience in reaching these coal-houses and ash-pits, they left an alley-way 9.82 feet in width, extending from Eighth street to the main alley running through the center of the block. Four of the five lots abutting on Champa street were disposed of. The remaining lot was retained and occupied by appellant. Subsequently the alley-way in question was assessed and sold for taxes. Defendant Lillian Griffin, who in the mean time had purchased the lot adjacent thereto, fronting on Eighth street and extending back to the main alley, became the owner at such tax-sale. No redemption having taken place, in due time she received her tax-deed, whereupon she closed the private alley by extending a fence across each end. Appellant brought the present suit upon the ground that the closing of the alley constituted a nuisance which he was entitled to have abated. The court below rendered a decree in favor of appellee. From this decree the present appeal was taken.

Since Smith and Campau neither made a statutory dedication to the city for public purposes of the strip of land in question nor conveyed the same by deed, the title remained in them and, although used as a private way, it continued liable to taxation. The title passed to Mrs. Griffin under her tax-deed; and, unless subject to an easement, she acquired the right to fence and use it in accordance with the dictates of her private interest. The attitude of Smith, being that of an original owner, and not a purchaser after the subdivision, should be borne in mind. If he and Campau were attempting to close this private alley, and one of their grantees was objecting, a different case would be presented. Having subdivided the ground, reserving the alley, and having sold lots with reference to this subdivision, they might be estopped from after wards interfering with the use of the alley by their vendees; or, if they had wholly severed their title to the entire premises, including the alley, by deeds specifically recognizing this right as an easement, their grantees might be estopped from interfering therewith. But Mrs. Griffin's title is not thus embarrassed. Her ownership is not in privity with Smith and Campau. She claims through a sale for taxes, and is not estopped as they or their grantees might be in the cases suppose...