Town of Manitou v. International Trust Co.

Decision Date02 June 1902
Citation70 P. 757,30 Colo. 467
PartiesTOWN OF MANITOU v. INTERNATIONAL TRUST CO. et al. SAME v. TOWNSEND et al.
CourtColorado Supreme Court

Appeal from district court, El Paso county.

Actions by the town of Maniton against the International Trust Company and others and against O. C. Townsend and others. From judgments in favor of defendants, plaintiff appeals. Affirmed.

On the 12th of February, 1874, the Colorado Springs Company, being the proprietor of certain lands in El Paso county, caused to be executed and acknowledged, and filed for record, a certain plat of said lands which is entitled, 'Map of Manitou, El Paso County, Colorado.' On this map no words are used by which the streets, alleys, avenues, parks, paths, or other public places are dedicated to the public, although in the acknowledgment language is employed indicating an intention to make a statutory dedication. The following appears upon the plat: 'The roads and paths through lot 36, block A, * * * are private roads and paths, and subject to be closed by the mutual consent of the owners of the lots bounded by said roads and paths.' In the year 1876 the town of Manitou was incorporated. In October, 1882, the Colorado Springs Company executed a lease to the Manitou Mineral Water Company for the term of 20 years, and in the said lease an agreement was made to convey the fee of said property to the Manitou Mineral Water Company upon the payment by the Mineral Water Company to the Colorado Springs Company of the amount to be fixed by arbitrators as the value of the property. On the 7th of February, 1883, there was recorded in the office of the clerk and recorder of El Paso county another plat, entitled 'Plan of the City of Manitou, El Paso Co., Colorado.' The acknowledgment of this plat contains practically the same language employed in the acknowledgment of the plat filed in 1874. These words also appear: 'And the said above-described first plat of the town of Manitou is hereby amended, so as to conform to this annexed second plat of the town of Manitou, placed in its stead, and hereafter all deeds and conveyances shall refer and correspond to this amended plat. The roads and paths through lot 27, block C, * * * are private roads and paths, and subject to be closed by mutual consent of the owners of the lots which bound upon said roads and paths; also Ellis street and such parts of lots numbered 13 and 14, block C, of the abovedescribed old plat of the town of Manitou as is here laid out as a part of Canon avenue, and the park therein, are private, and subject to be closed as above.' The second plat is dated and acknowledged the 20th of October, 1882. On this plat the property involved is designated as 'Lot 37, Block A.' Officers of the Colorado Springs Company and the person who made this map testified that the park mentioned in the acknowledgment is the property in question. Drawing No. 1 filed with this opinion, is a tracing from the plat filed in the year 1874. No. 2 is a tracting from the plat of 1883. The land in controversy is shown upon these tracings.

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In November, 1898, two suits were brought by the town of Manitou,--one against the International Trust Company and others, and the other against the Manitou Mineral Water Company and others. In the first case, the town asks to have its title to the tract of ground shown on the plats quieted in the second, it seeks to have the defendants ejected from a certain portion of the premises. It is claimed on behalf of the town that in the year 1872 the Colorado Springs Company subdivided the land then owned by it into lots, blocks streets, and paths, calling the same the 'Town of Manitou,' and afterwards filed a plat in the office of the clerk and recorder of El Paso county, showing said subdivision; that in said subdivision was a certain lot numbered 36, and a portion of said lot 36 was dedicated to the public, for its use and benefit, as a park; that said ground so described, together with all mineral springs and appurtenances thereunto belonging, was fully dedicated to the use of the public as a public park; that afterwards the said town of Manitou was organized, and went into the possession of the public park for and on behalf of the citizens and taxpayers of said town, and from that time has continued in the uninterrupted possession and ownership, for the public as aforesaid, of a large part and portion of said public park that by the plat of 1883 the springs and paths shown are dedicated to the public. The dedication claimed is what is known as a 'common-law dedication.' The defendants deny that there was ever a dedication of the premises in controversy to the public as a park; deny that they ever intended to dedicate the said premises as a park; deny that the town of Manitou ever went into the possession of the premises; and allege that, assuming the premises were dedicated, neither the public nor the town of Manitou ever accepted the dedication, and that in the year 1882, before the filing of the second plat, the Manitou Mineral Water Company entered into the possession of the property in question, erected valuable buildings upon the same, and expended large sums of money in the improvement thereof, with the full knowledge of the authorities of the town of Manitou.

The plaintiff, in support of its contention that there had been a dedication and an acceptance thereof, introduced 36 warrants of the town of Manitou, issued during the years 1879, 1880 1881, and 1882, showing an expenditure, in the aggregate, of about $500 in the improvement and protection of the springs. Several witnesses testified that lots were sold by the officers of the Colorado Springs Company with reference to a plat upon which the property in controversy was designated as a park. It was shown by other witnesses that officers and agents of the company pointed out to purchasers of lots the property in question, and referred to it as a park, and induced persons to buy lots of the town company, in the vicinity of the land in question, upon the representation that it was to be a public park. Several conveyances were received in which the property in controversy in mentioned as a park. Officers of the company testified that it was the intention of the company to reserve the property in controversy from sale, that they intended to allow the public to have the free use of the springs and the said premises while the waters of the springs were not being utilized, and that no person was ever authorized to sell lots upon the representation that the place was a public park, and declared that they never saw a plat upon which the name 'Park' appeared, as stated by plaintiff's witnesses. The defendants introduced in evidence certified copies of the articles of incorporation of the Colorado Springs Company, of the lease from the Colorado Springs Company to the Manitou Mineral Water, Bath & Park Company, of the deed from the Colorado Springs Company to the Manitou Mineral Water Company, and of the amended articles of incorporation of the Manitou Mineral Water, Bath & Park Company, changing the name of the company to that of the Mineral Water Company; also extracts from the records of the town of Manitou: Of August 6, 1878, as follows: 'Ordered, on motion of F. Hermann, to instruct clerk to correspond with commissioner of public lands in regard to title of the various springs in Manitou.' Of May 3, 1880, as follows: 'The town attorney, Mr. Hoop, made a verbal report in relation to the park in the central portion of the town. He had found that the title to said park was vested in the Colorado Springs Company, except that said lot never was numbered, and he recommended the board to take steps to condemn said plat of ground for a public park, recommending several ways of doing the same. On motion of A. Hutchinson, Mayor Nichols was appointed a committee of one to confer with the Colorado Springs Company in relation to giving the town title to so much of lot 36 east of private road and in the vicinity of the springs.' Of June 17, 1887, as follows: 'Moved by Creighton, seconded by Gillis, that the mayor be appointed a committee to secure a deed for the park at junction of Maniton avenue from the Colorado Springs Company to the town of Manitou.' Of June 21, 1887: 'That the mayor secure a contract for a deed to the town of the park at the junction of Canon and Manitou avenues. Carried.' Of June 12, 1882: 'Resolved, that Nichols, Leddy, and Rand be appointed to confer with the Colorado Springs Company in relation to deeding to the town of Manitou the park between the Cliff House and the Soda Springs.' Also, of March 16, 1883, as follows: 'Letter of G. H. Parsons, secretary of the Colorado Springs Company, read in relation to conveyance of portion of park between Canon and Manitou avenues in exchange for present street would be made; but board thought it advisable to know definitely what portion of said park would be conveyed by said company before action was taken in the matter.' Also, of December 12, 1889: 'Special meeting of the board of trustees was held on above date, for the purpose of considering the advisability of grading Manitou avenue opposite Navajo Soda Springs, and for the purpose of taking steps looking toward the improvement of the ditch running through the park of the Manitou Mineral Water Company.' Also, April 26, 1893: 'Moved by Barker, seconded by Gould, that a committee of three be appointed by the mayor to confer with Manager Hunt, of the Manitou Mineral Water Company, in regard to closing springs, and asking the company to delay for awhile. Mayor Grafton explained that he had talked with Manager Hunt, who said it was the intention of the company to close the springs only during the nighttime, after the closing of the pavilion;...

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    ... ... store abutting on a street and open triangular space in the ... town of Ahoskie on the western side of the present Atlantic ... Coast Line, ... same as streets. Manitou v. Int. Trust Co., 30 Colo ... 467, 70 P. 757, irregular shaped lot in ... ...
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    ...nature and showing that the municipality has assumed control and possession of the property in question. See Town of Manitou v. International Trust Co., 30 Colo. 467, 70 P. 757; Leadville v. Coronado Mining Co., 37 Colo. 234, 86 P. 1034. See also Armbruster, Jr., Inc. v. Wildwood, 41 F.2d I......
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