Thatcher v. Crisman

• Decision Date: 11 March 1895
• Citation: 6 Colo.App. 49,39 P. 887
• Parties: THATCHER et al. v. CRISMAN.
• Court: Colorado Court of Appeals

39 P. 887

6 Colo.App. 49

THATCHER et al. v. CRISMAN.

Court of Appeals of Colorado

March 11, 1895

Error to district court, Arapahoe county.

Action by Obed Crisman against Joseph A. Thatcher and Dennis Sullivan for breach of covenants in a deed. From a judgment for plaintiff, defendants bring error. Reversed.

Rogers, Shafroth & Walling, for plaintiffs in error.

William Knapp, for defendant in error.

BISSELL P.J.

Obed Crisman was a grantee under a deed with full covenants executed in November, 1888, by Sullivan and Thatcher. The property conveyed was lots 101 and 102 in an addition to Cottage Hill, in Arapahoe county. It was unimproved, and neither grantors nor grantee had other than the constructive possession which the title may draw after it. Conceiving that there had been a breach of the covenants, Crisman brought the present suit, and stated five different causes of action. In three of them the breach was stated to consist of a 10 years' user by the public. This may be dismissed from consideration, since no proof was offered to support it. In the other two the plaintiff averred (to state it generally) a breach of the various covenants contained in the deed, other than the covenant against incumbrances. The breach laid was the establishment of a highway by the boards of county commissioners of Arapahoe and Jefferson counties in 1874. In making his proof of the proceedings of the Arapahoe county board the plaintiff offered the report of the viewers and the order of the board. The order recited the report, and its recommendation for the payment of $62.50 to Mr. Zuloff for the right of way through his land. The county clerk was ordered to draw a warrant in favor of "Zuloff, or the owner," and he was directed to ascertain that person, and concluded with an order "that the road as located by the viewers upon the petition of Richards et al. should be declared a public road" from that date. The defendants strenuously objected to the procedure, and insisted the plaintiff was bound to produce all the papers connected with the matter, in order to show jurisdiction in the county board to act in the premises. When it came to the proceedings in Jefferson county, the plaintiff offered the entire record, which included the various papers provided for by the statutes then in force. No objection was made to this record, but just how far it bears on the present controversy is not very clear. When the defendants came to make their proof, they offered the balance of the Arapahoe county record. The plaintiff objected to the proof, and the court excluded it, holding the order to be the only essential element of proof, and the balance inadmissible, because it tended to controvert the validity of the order. The petition offered by the defendants must be assumed to be the one on which the order rested, since no other was produced. This petition was signed by only nine persons. It was filed in July, 1874, and followed in August by the appointment of viewers, who filed their report in the October ensuing, when the board made the order which has been stated. The plaintiff established the amount of land which was occupied by the road, the consideration which he paid for the conveyances and the relative value of what was taken. Acting under the directions of the court, the jury found a verdict for Crisman for $170.69, to reverse which the defendants have sued out a writ of error, and brought the case here.

The litigation involves several troublesome questions. One of the chief difficulties springs from the circumstance that the plaintiff failed to make some proof which, according to our view of the law, is indispensable.

When the action was begun, the plaintiff rested his right to recover upon the user by the public of the highway for a period of upwards of 10 years. He was compelled to abandon this position because of statutory changes. On the present argument much reliance is placed on the legislation affecting roads, and it is probably well to dispose of this matter before proceeding with the main discussion. Ever since territorial times there have been statutes providing for the establishment and maintenance of public highways by the boards of county commissioners of the various counties. With the acts which establish particular roads we have nothing to do, but section 5 of chapter 76 of the Revised Statutes of 1868 provided that all roads should be considered highways which had been or might be declared such by the legislative assembly or by the board of a county, or which had been or should be so used and traversed as that they would be regarded highways under the common law. The statute further provided that a board of county commissioners might act whenever a petition signed by 10 householders of the county and containing sundry and divers matters, should be presented to them. It is not necessary, in this discussion, to state the requisite contents of the petition, other than the requirement that it must be signed by 10 householders. Later and in 1874, the chapter of the Revised Statutes which has just been referred to was amended by striking out the provision respecting the common-law user, and inserting a limitation period of 10 years. In 1877, the act was again amended, and the 10-year clause was eliminated. Both of these amendatory acts contained the general statement that all roads should be considered public highways, which had been declared such either by the legislature or by the board of county commissioners. It is insisted that these acts serve to validate all roads established by the various boards. It will be observed there is substantially no difference between the act of 1868 and the amendatory acts of 1874 and 1877, save with respect to the clause respecting the user by the public. In all other details the legislation is precisely the same, and the amendments were evidently adopted by the legislature not as validating acts to correct any mistakes of or obviate any errors committed by the boards in establishing roads. No such purpose is expressed in the act, nor do we conceive that any such inference can be legitimately drawn from their...