Town of Silver Plume v. Hudson

Decision Date28 January 1963
Docket NumberNo. 20166,20166
Citation151 Colo. 394,380 P.2d 59
PartiesTOWN OF SILVER PLUME, a Municipal Corporation, Plaintiff in Error, v. Geraldyne W. HUDSON, Merlin L. Rautenberg, Margeret D. Rautenberg, and Dennie L. Rautenberg, Defendants in Error.
CourtColorado Supreme Court

Perricone & Perricone, Denver, for plaintiff in error.

Henry W. Luedde, Georgetown, for defendants in error.

MOORE, Justice.

This action was commenced in the district court of Clear Creek county by defendants in error to whom we will refer as plaintiffs, or by name. Defendants were the town of Silver Plume, F. H. Leach as County Treasurer, the State of Colorado, and several other persons who were named 'individually, and as members and representatives of a class consisting of the general public and residents of the Town of Silver Plume * * *,' who were making use of a 'purported public way or easement over, through and across * * *' the property described in the complaint, the fee simple title to which was claimed by plaintiffs. Since the interests of defendants appearing in this court are synonymous with those asserted by the Town of Silver Plume, we will refer to them as the town.

The purpose of the action was to secure 'a complete adjudication of the rights of all parties' with respect to the real estate in dispute. The area in controversy consists of a roadway leading into the main street of the town, which traversed portions of Lots 1, 2, 3, 4 and 5 in Block 5, Town of Silver Plume.

Plaintiffs claimed ownership of the disputed area under certain treasurer's deeds issued to Block 5 above mentioned, and asserted that the property acquired under said deeds was not subject to any easement for roadway purposes. The town by answer alleged in substance that it had acquired, by prescriptive right, an easement over said lots for highway purposes. The trial court found the issues of law and fact in favor of plaintiffs and entered judgment accordingly. The town seeks review by writ of error.

There is no dispute as to any material fact and the determination which we are called upon to make involves only the question of whether the trial court correctly applied the law.

Pertinent admitted facts are as follows: Prior to 1938 there was but one main highway entering the town from the east and it formed the main street within the limits of the town. In 1938 a new federal-state highway was constructed (the present U. S. Highway 6) which eliminated the former entrance into the town, and a new approach to the main street from the highway was needed. This need was declared by ordinance of the town on November 22, 1937, and the town employed one Criley to negotiate for the property over which the new roadway would pass; however there is nothing to indicate that any legal right was acquired by the town to make use of the needed land. Nevertheless the new roadway was constructed under an arrangement between the town, the county and the State of Colorado, and has been in constant use by the public since 1938. From 1938 to 1960 it was used, maintained, and serviced by the town in the same manner as all other streets in the town. Use of the roadway was open, notorious, and uninterrupted until 1960 when one of the plaintiffs attempted to block it off. The present action followed.

The trial court found that the original use of the roadway beginning in 1938 and continuing until 1945, was a permissive use, and that the period of time between those years could not be counted in determining the existence of a prescriptive right. If this period of time is excluded, admittedly the town has no prescriptive right. The basis of the court's finding of a permissive use is that, '* * * prior to 1938 the county of Clear Creek acquired a tax certificate to the said Block 5 * * *.' The trial court further found that some of the plaintiffs acquired title to Lots 1 and 2 in said Block 5, by treasurer's deed in 1945, and that other plaintiffs acquired title by treasurer's deed to the remaining lots in said Block 5 in 1956. It was the court's conclusion, as to each of the parcels of land described in the treasurer's deeds, that the running of the time for acquisition of a prescriptive right began on the date of the issuance of the treasurer's deeds, and, using those dates as a starting point, held that no right had been acquired by the public by adverse use of the property.

On behalf of the town it is argued that issuance of tax sale certificate to the county did no more than to give the county a lien on the property; that the existence of that lien in no manner changed the effect of the use by the public as against the record owner of the land; that the consent of the county to the creation of such roadway does not amount to a 'permissive use' the duration of which must be excluded from consideration on the question of prescriptive rights. It is further argued that the issuance of the treasurer's deed in and of itself does not erase the accumulated years of adverse use against the former title owners where the prescriptive right claimed is an easement over the land for highway purposes, which easement has been enjoyed by the public for more than twenty years.

Question to be Determined.

First. Where real estate is sold for nonpayment of taxes and certificates of sale issue to the county, and thereafter the county assists in the building of a public highway across a portion of the land included in said tax sale, and otherwise consents to the use of such roadway by the...

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5 cases
  • Board of County Com'rs of Saguache County v. Flickinger
    • United States
    • Colorado Supreme Court
    • September 4, 1984
    ...have had actual or implied knowledge of the public's use of the road and made no objection to such use. See Silver Plume v. Hudson, 151 Colo. 394, 400, 380 P.2d 59, 62 (1963); People ex rel. Mayer, 90 Colo. at 26-27, 5 P.2d at 874-75; Board of County Commissioners v. Ogburn, 38 Colo.App. 21......
  • Lobato v. Taylor
    • United States
    • Colorado Supreme Court
    • June 24, 2002
    ...easement and profit rights by prescription as to the acquisition of title by adverse possession. See, e.g., Town of Silver Plume v. Hudson, 151 Colo. 394, 398, 380 P.2d 59, 61 (1963) (holding that to establish a prescriptive easement the " `possession must be hostile, not only against the t......
  • Board of County Com'rs of Cheyenne County v. Ritchey
    • United States
    • Colorado Court of Appeals
    • May 5, 1994
    ...consecutive years are declared to be public highways. Section 43-2-201(1)(c), C.R.S. (1993 Repl.Vol. 17). See Town of Silver Plume v. Hudson, 151 Colo. 394, 380 P.2d 59 (1963); Board of County Commissioners v. Ogburn, 38 Colo.App. 212, 554 P.2d 700 (1976); Vade v. Sickler, Here, the trial c......
  • Brown v. Jolley
    • United States
    • Colorado Supreme Court
    • November 26, 1963
    ...bearing upon the issues here involved. The principles applied in that case are equally applicable here. In Town of Silver Plume v. Hudson, 151 Colo. ----, 380 P.2d 59, we 'It is undisputed that the area in question has been used without interruption as a public highway for more than twenty ......
  • Request a trial to view additional results
3 books & journal articles
  • Chapter 21 - § 21.3 • ESSENTIAL ELEMENTS
    • United States
    • Colorado Bar Association Colorado Real Property Law (CBA) Chapter 21 Adverse Possession and Prescription
    • Invalid date
    ...of Qualteri, 757 P.2d 1093 (Colo. App. 1988); Schuler v. Oldervik, 143 P.3d 1197 (Colo. App. 2006).[94] Town of Silver Plume v. Hudson, 380 P.2d 59 (Colo. 1963).[95] Hunter v. Mansell, 240 P.3d 469 (Colo. App. 2010).[96] Horne v. Hopper, 211 P. 665 (Colo. 1922); Allen v. First Nat'l Bank of......
  • Chapter 2 - § 2.1 • PROPERTY
    • United States
    • Colorado Bar Association Colorado Real Property Law (CBA) Chapter 2 Real Property
    • Invalid date [67] Conn. Fire Ins. Co. v. Colo. Leasing, Mining & Milling Co., 116 P. 154 (Colo. 1911).[68] Town of Silver Plume v. Hudson, 380 P.2d 59 (Colo. 1963).[69] Home Pub. Market Co. v. Fallis, 209 P. 641 (Colo. 1922); Sontag v. Abbott, 344 P.2d 961 (Colo. 1959).[70] Horn v. Clark Hardware......
  • Chapter 30 - § 30.8 • TAX TITLES
    • United States
    • Colorado Bar Association Colorado Real Property Law (CBA) Chapter 30 Real Property Taxation
    • Invalid date
    ...had run).[431] First Nat'l Bank in Grand Junction v. Fitzpatrick, 624 P.2d 927 (Colo. App. 1981).[432] Town of Silver Plume v. Hudson, 380 P.2d 59 (Colo. 1963).[433] Sherman v. Greeley Bldg. & Loan Ass'n, 181 P. 975 (Colo. 1919); Wells v. Brown, 128 P. 869 (Colo. 1912). Sanderford v. Walker......

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