Opinion
Sept. 17, 1974.
Editorial Note:
This case has been marked 'not for publication' by the court.
Conover, McClearn, Burkhardt & Heppenstall, P.C., Gary J. Ceriani, Denver, for plaintiffs-appellees.
Dale A. Gerlach, Aurora, for defendants-appellants.
SILVERSTEIN, Chief Judge.
Plaintiffs sued to obtain an injunction and damages as the result of an alleged trespass by defendants in grading a roadway upon property claimed to be owned and possessed by plaintiffs. Trial was to the court, which entered a judgment permanently enjoining defendants from entering the property and awarding damages to plaintiffs in the amount of $2,041.71.
Defendants docketed a joint appeal. However, no notice of appeal was filed by defendant Strain. Therefore we dismiss the appeal as to Strain. See Chapman v. Miller, 29 Colo.App. 8, 476 P.2d 763. Plaintiffs alleged that they, and their predecessors in interest, had acquired title by adverse possession for over eighteen years to that part of a platted street which abutted their lots and that on September 6, 1972, defendants, without plaintiffs' permission, bulldozed a roadway along that part of the platted street claimed by plaintiffs, thereby causing damage to their property. Defendants admitted cutting the roadway, but denied the trespass, and asserted that the platted street was a dedicated street and that therefore plaintiffs could not acquire title to it by adverse possession. Defendants also denied the adverse possession and further claimed a right-of-way by necessity.
The parties stipulated, and the trial court found, that plaintiffs and defendant Bobbitt own certain property within the Silver Springs Subdivision located in the northeast corner of Park County, Colorado; that prior to 1965 all of the land within Silver Springs Subdivision which is pertinent to this action was located in Jefferson County, Colorado; and that the property became part of Park County in approximately 1965 through the resolution of a boundary dispute between the two counties.
In 1922 Laura O. Bennet, the then record owner of all of the property within Silver Springs Subdivision, recorded a plat in the office of the Clerk and Recorder of Jefferson County, and on this plat she purported to dedicate to the public a right-of-way in and through all streets shown on the plat. The property in dispute is that portion of the platted street shown as 'Laura Avenue' adjacent to and abutting the eastern boundary of Lots 245 through 249, which lots were purchased by plaintiffs in 1971. The defendant's lots, which are also adjacent to 'Laura Avenue' several hundred feet to the south of plaintiffs' land, were purchased in 1970.
It was undisputed, and the trial court found, that neither Jefferson County nor Park County ever took any formal action to accept the plat or the roadway; that the plat was never filed or recorded in the records of Park County; and that, prior to the alleged trespass, the disputed property had never been used as a roadway.
As grounds for his appeal, defendant Bobbitt urges (1) that the court erred as a matter of law in concluding that defendant had acquired no interest in the disputed property under the purported dedication of public street in 1922; (2) that the trial court's finding that plaintiffs had acquired title to the disputed property by adverse possession is contrary to the law and the evidence; and (3) that the trial court's finding that defendant had available other reasonable means of acquiring access to his property was contrary to the evidence presented.
I
Appellant here concedes that no statutory dedication of 'Laura Avenue' was perfected, but contends that the evidence established an effective common law dedication, and that therefore he, as a part of the public, acquired an interest in 'Laura Avenue' which could not be divested by adverse possession. We disagree.
A common law dedication is not complete until there has been an acceptance by the proper authorities. In Litvak v. Sunderland, 143 Colo. 347, 353 P.2d 381 the court said, quoting Board of County Commissioners v. Warneke, 85 Colo. 388, 276 P. 671.
"It is necessary, in order to constitute a public street or highway, at common law, that there be both a dedication and acceptance. It is also true that a dedication without an acceptance is merely an offer to dedicate, which may, under some circumstances be withdrawn. It is equally true that, until there is an acceptance, respecting a common law dedication, the public acquires no interest in the streets and assumes no duties with reference thereto. It would also seem to be the general rule, that in order to constitute an acceptance, it must be made by the proper authorities within a reasonable time, or the right to accept may be lost."
In Litvak, supra, the defendant had fenced in that part of a dedicated, but unaccepted, street which was adjacent to his land, and had planted trees and shrubs thereon. The street had never been used as a public way and, after this situation had prevailed for over twenty years, the plaintiff sought, as part of the public, to enjoin defendant from blocking a public street. The trial court denied the injunction and the Supreme Court affirmed, and again quoted from Commissioners v. Warneke, Supra, thus:
'The public acquired no rights whatever in this platted street until expressly or impliedly accepted, and prior to an acceptance, the rights of (defendant) intervened, through adverse possession, and in effect, withdrew the offer to dedicate.'
So here, the evidence established that the offer to dedicate 'Laura Avenue' had never been accepted by the proper authorities, nor had it ever been improved, used or maintained as a public street. Under these circumstances the public--and hence Bobbitt--had acquired no interest in the disputed property.
II
In order to establish their right to an injunction and their claim for damages, plaintiffs must show ownership of the disputed property. Bobbitt contends plaintiffs failed to establish that they had acquired title by adverse possession as claimed by plaintiffs. He relies mainly on the fact that the property, for a part of the time, was used only as a summer home. The contention is without merit.
Briefly, the evidence discloses that the disputed area was fenced in for over twenty-five years by plaintiffs and their predecessors in title, that it was used for a pathway to the entrance to their house--which house, built in 1923, encroached on 'Laura Avenue,' and that the area had been partially landscaped. For most of the time, the property was used only in summer, but for a period of ten years it was occupied year around. The fact that occupation is seasonal, where the location and adaptability of the land is appropriate for such occupancy, will not defeat the requirements of continuity of possession. Kay v. Biggs, 13 Ariz.App. 172, 475 P.2d 1, Howard v. Kunto, 3 Wash.App. 393, 477 P.2d 210. See Niles v. Churchill, 29 Colo.App. 283, 482 P.2d 994, and Annot., 24 A.L.R. 632.
The finding of the trial court that plaintiffs and their predecessors had been in continuous, hostile, open and notorious possession of the disputed property for a period in excess of eighteen years is amply supported by the evidence and will not be disturbed. Niles v. Churchill, Supra. The rights of plaintiffs to 'Laura Avenue' having intervened prior to any acceptance of the purported dedication, Bobbitt acquired no rights thereto, and his actions constituted a trespass.
III
Since the evidence supports the finding that other reasonable means of acquiring access were available, we find no merit in defendant's contention that an implied easement by way of necessity was established in his favor. See Wagner v. Fairlamb, 151 Colo. 481, 379 P.2d 165.
Judgment affirmed.
ENOCH and RULAND, JJ., concur.