Whitsett v. Union Depot & R. Co.

• Decision Date: 18 October 1887
• Citation: 15 P. 339,10 Colo. 243
• Parties: WHITSETT, EX'X, etc., v. UNION DEPOT & R. CO. and others.
• Court: Colorado Supreme Court

15 P. 339

10 Colo. 243

WHITSETT, EX'X, etc., v. UNION DEPOT & R. CO. and others.

Supreme Court of Colorado

October 18, 1887

Error to district court, Arapahoe county.

Wells, Macon & McNeil, for plaintiff in error.

Teller & Orahood and B. M. Hughes, for defendant in error.

BECK C.J.

Richard E. Whitsett, since deceased, brought an action in the district court of Arapahoe county to enjoin the defendant in error, the Union Depot & Railroad Company, from completing the structure then commenced, and since completed, which extends across Seventeenth street, in the city of Denver near its westerly terminus, and known as the 'Union Depot;' and to compel said defendant, and the Denver South Park & Pacific Railroad Company, to remove the obstructions which they had erected and placed in said street, and the other streets and alleys mentioned in the complaint. Damages, general and special, were prayed for injuries alleged to have been sustained by the plaintiff, and for such as might be sustained before final judgment in the action. The complaint avers that plaintiff is the owner of certain lots described therein, which abut on the streets obstructed, on which are buildings for residence and business purposes; that his lots on Seventeenth street are situated beyond said obstructions from the business center of said city, so that, by reason of the obstructions therein, he, his tenants, and other citizens, cannot pass continuously along said street to and from the business center of the city, as they otherwise could and were accustomed to do, but are compelled to go around the obstructions, and are thus made to travel a greater distance in passing to and from said business center. The complaint sets out in detail the history of the location of the Denver city town-site, in the year 1859, upon the unsurveyed public domain; the survey, subdivision, and platting thereof into lots and blocks, intersected by streets and alleys; the recognition and approval of said subdivision and plat by the residents of said town-site, and by the authorities of the city of Denver; the incorporation of said city thereafter, under the name of the 'City of Denver,' by an act of the territorial legislature passed in 1861; the entry by the probate judge of Arapahoe county at the United States land-office, in 1865, of said town-site, under and in pursuance of the town-sites acts of congress; the conveyance by said probate judge to the parties entitled thereto of the several lots and blocks occupied by them respectively, and the further conveyance in fee to the city of Denver, by said probate judge, of all the streets, alleys, and public grounds located and set forth in said survey and plat. Plaintiff avers that, ever since the survey and subdivision of the town-site, he has been a resident of Denver; but does not say that he was an occupant of either of the lots alleged to be injured by the construction of the union depot, or that he acquired his title thereto from the probate judge, or from any of his successors in office. He inserts the legal proposition that the probate judge, after his entry of the town-site, and that the city of Denver, since the conveyance to it of the streets, alleys, and public grounds referred to, held, and that said city now holds, all the several streets and alleys surveyed and set down in the said plat, (which included those now obstructed,) in trust, that the same should be ever kept and used solely as public highways; and, upon the abolition or vacating of any of said streets and alleys by lawful authority, to release and convey over to the lawful owners of the abutting lots all that part of the streets and alleys so vacated, from the boundary of such lots to the center of said streets and alleys respectively.

Prior to the happening of the grievances complained of the city council of the city of Denver had, by an ordinance passed on or about the fifth day of January, A. D. 1880, vacated a portion of the streets and alleys mentioned in the complaint, for the purpose of enabling said defendant, the Union Depot & Railroad Company, to build a union railroad depot at that point in the city, and to erect and make such other structures and improvements as were necessarily appurtenant to a union railroad depot. By this ordinance parts of Seventeenth and Wewatta streets were declared vacated, as were also the alleys in the four blocks abutting thereon, upon which the building and its appurtenances were to be constructed. After describing the parts of the streets and alleys vacated, its language is that they 'be, and the same are hereby vacated and abolished, and the same appropriated to the Union Depot & Railroad Company and its successors, for its and their sole use, occupancy, and benefit, so long as it or its successors shall use the same for the purposes of maintaining a union depot, with necessary tracks, sidings, and switches, leading to and from and about the same, for the use of railroads, to be held, used, and occupied henceforth by said company, its successors and assigns, for the uses and purposes aforesaid: provided, that if the said company, its successors and assigns, shall cease to use and occupy the said parts of said streets and alleys for the purposes aforesaid, then this grant to it and them shall cease and determine; but that the destruction of the proposed depot by fire shall not operate to determine this grant to it, its successors or assigns, unless it or they or either of them shall fail, neglect, or refuse to build the same in a reasonable time after such destruction.' While the plaintiff's lots abut on the streets vacated, none of them abut on the portions thereof vacated. The streets surrounding the several remained open and unobstructed. remained open andunobstructed.

The...