Opinion
Rehearing Denied Feb. 13, 1974.
Certiorari Denied April 8, 1974.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 150
Raymond S. Duitch, Colorado Springs, for plaintiff-appellant.
Edwin Strand, Colorado Springs, for defendant-appellee Bd. of County Commissioners.
John P. Moore, Atty. Gen., Joseph M. Montano, Chief Highway Counsel, Marlin D. Opperman, Sp. Asst. Atty. Gen., for defendant-appellee Dept. of Highways.
SMITH, Judge.
Between the years 1963 and 1967, the State Department of Highways constructed the 'Midland Expressway' from Colorado Springs westerly through Manitou Springs, Colorado. A portion of land in the East Manitou Addition, an unincorporated area of El Paso County, was included within the right-of-way alignment. Plaintiff-appellant Bock claims to be the owner of three parcels included within the said right-of-way. These parcels are portions of the East Manitou Addition designated as follows:
(1) Parcel 178--A (a portion of Williams Street containing 0.344 acres, more or less.)
(2) Parcel 202--B (a portion of the alley Block 8 containing 0.117 acres, more or less.)
(3) Parcel 202--C (a portion of Thomas Street containing 0.099 acres, more or less.)
Having previously sought unsuccessfully to have these parcels vacated by the Board of County Commissioners, Bock brought this action to have title to the said parcels quieted in himself as against both the County of El Paso and the State of Colorado. Bock asserted in the trial court that he had, by conveyance, acquired good title to that portion of East Manitou Addition which included these parcels. He further asserted that the parcels are not, in fact, public streets or alleys subject to inclusion within the right-of-way because their dedication as evidenced by the subdivision plat filed in 1888 had not been 'timely accepted' by the County of El Paso.
Defendant-appellees in their respective responsive pleadings sought dismissal of the action and such other and further relief as the court might deem proper. After a trial to the court, the claims of Bock were denied and title was decreed to be in the State of Colorado, the Division of Highways. We affirm.
Bock's attempt, upon trial, to make a prima facie showing of his title disclosed that Isaac Davis, one of the dedicators of the plat, conveyed a portion of the addition within which these parcels were located to one Charles Liebold. The evidence next discloses that Bock's title derived from a conveyance from Eleanor P. Liebold, Elizabeth L. Corley, and Lucy Liebold Seabranch to plaintiff's predecessors in interest. No evidence was introduced to show whether, or in what manner, these three grantors had obtained title. Further, from a review of the record we conclude that Bock's other contentions as to alternate means by which he may have acquired title are without merit. Thus, the trial court was correct in its conclusion that plaintiff Bock had failed to make a prima facie showing of any right to the relief which he claimed.
In regard to plaintiff's challenge to the validity of defendants' title, it is axiomatic that where plaintiff in an action to quiet title to land fails to make a prima facie showing of his title, he is in no position to question the legality of the tile claimed by other parties to the suit. School District No. 6 v. Russell, 156 Colo. 75, 396 P.2d 929; MacKay v. Silliman, 84 Colo. 220, 269 P. 901. Therefore, having failed to demonstrate a chain of title ultimately devolving upon him, Bock cannot attack the sufficiency of the evidence upon which the court adjudged title to be in the defendant. Baugh v. Grisby, 286 S.W.2d 798 (Mo.); Hopkins v. Slusher, 266 Ky. 300, 98 S.W.2d 932. However, we feel constrained to note that the evidence relief upon by the trial court amply supports its conclusion that, despite the lapse of time between the filing of the plat and the acceptance of the dedication, the streets and alleys in question here were validly dedicated and accepted by the public.
Judgment of the trial court is therefore affirmed.
ENOCH and PIERCE, JJ., concur.