Webber v. Petty

• Decision Date: 11 April 1892
• Citation: 29 P. 1016,2 Colo.App. 63
• Parties: WEBBER v. PETTY.
• Court: Colorado Court of Appeals

29 P. 1016

2 Colo.App. 63

WEBBER v. PETTY.

Court of Appeals of Colorado

April 11, 1892

Appeal from district court, Pitkin county; THOMAS A. RUCKER, Judge.

Action by Henry Webber against William H. Petty to determine right to a lot in Aspen, the town site of which had, under the provisions of Rev.St.U.S. § 2387, been entered by the county judge in trust for the several use and benefit of the occupants thereof. Judgment for defendant. Plaintiff appeals. Affirmed.

T.C. McDevitt, for appellant.

REED J.

This suit was brought by appellant to determine the right to a title to a lot in Aspen. Both parties filed their respective claims to the property with M.G. Miller, county judge; appellant on the 23d day of August, 1887, and appellee on the 11th of the same month. Appellant asked in the complaint that he be declared the owner, and that the claim filed by defendant be declared a cloud upon his title, and be removed. A trial was had to the court without a jury. The court found for the defendant decreeing him to be the owner and entitled to a deed from the county judge. The preliminary questions involved were presented and determined in Mayor v. Land Co., 10 Colo. 191 15 P. 794, and 16 P. 160, and in Wheeler v. Wade, (Colo.App.) 27 P. 719. It is shown by the evidence that appellee entered into the possession of the lot in May, 1880, and erected a log cabin, the only improvement shown to have been made to the time of the trial, and that on one or two occasions appellee had temporary actual possession; that he remained in Aspen until October of the same year, when he left, and subsequently only visited the place occasionally,--incidentally,--exercised no personal control and had no personal possession. In the course of time it appears the roof and door were removed from the cabin. In July and August, 1883, one George W. Pearson, who testified that he had known the property and appellee, and of his claim to the property and ownership of the cabin, since the spring of 1880, took possession of the property, replaced the roof and door, and used it as a stable for horses; that while so in possession he saw appellee at Leadville who spoke of the property, and of being the owner, expressing a wish to sell it, and authorizing Pearson to sell for him if he got an opportunity. It appears that Pearson neither asserted title in himself nor denied the title of appellee at that time. It is also shown that on May 13,...