Opinion
Mattson & Mattson, Denver, Southard & Ashlock, William H. Southard, Greeley, for plaintiffs-appellants.
Akolt, Dick & Akolt, Robert A. Dick, John P. Akolt, III, Denver, for defendant-appellee The Farmers Reservoir and Irrigation Co.
SILVERSTEIN, Chief Judge.
Plaintiffs brought this action to quiet title to certain land in Weld County, Colorado. The Farmers Reservoir and Irrigation Company (Farmers) filed a counterclaim, asserting title to two reservoir sites known as Geneva Lake and Henry Lake, located within the boundaries of the land claimed by the plaintiffs. After a trial to the court, judgment was entered in favor of Farmers as to the land claimed by it. Plaintiffs appeal. We affirm.
Plaintiffs and Farmers derived their interests from the same common predecessor in title, Hudson Land Company. In 1913 Hudson was in financial difficulty and executed two deeds on the same date. One conveyed to Farmers title to various canals, water rights, and lands including, 'easements or rights of way for ditches, or reservoirs . . . provided, however, that in case of abandonment of any ditch or reservoir right of way, or easement for the same, for a period of two consecutive years, the title to said . . . reservoir right of way, or easement for the same, shall revert to (Hudson), its successors and assigns.' The asserted operation of this reverter clause forms one basis for plaintiffs' claim to the reservoir sites in dispute.
The other deed conveyed to Chicago Title and Trust Co. (Chicago), as trustee, all land owned by Hudson, excepting therefrom the properties and interests conveyed to Farmers. In 1921 Chicago conveyed to one Schloo certain described land in s 31, Township 1 North, Range 65 West, 'excepting from the above that part of said premises occupied by Henry Lake, Geneva Lake or any other ditch or reservoir of (Farmers).' Thereafter, in 1929, Chicago, by quitclaim deed, conveyed to Farmers, by a metes and bounds description, the land comprising the reservoir sites of Geneva Lake and Henry Lake.
Through several mesne conveyances, all of which contained the same description of the land conveyed, plaintiffs acquired title to the property conveyed to Schloo; that land is the subject of the present action, and includes within its boundaries the disputed reservoir sites.
On appeal Plaintiffs do not assert any error as to the land known as Henry Lake. However they assert that the court erred in determining that Farmers had valid title to the area referred to as Geneva Lake. They base their claim on the ground that title to the lake was conveyed to Schloo, their predecessor in title, by the 1921 deed, or alternatively that Geneva Lake was abandoned for more than two years and therefore that title reverted to Hudson's assigns, I.e., Chicago and Schloo, and through them to plaintiffs. We do not agree.
The key to the issue is found in the 1921 deed from Chicago to Schloo, which excepted from the land conveyed to the grantee 'that part of said premises occupied by . . . Geneva Lake.' Plaintiffs first assert that the exception was not an exclusion from the grant, but a limitation on the warranty liability of the grantors. The cases relied on by plaintiffs do not support this contention.
In Board of County Commissioners v. Anderson, 34 Colo.App. 37, 525 P.2d 478, affirmed as Anderson v. Union Pacific Railroad Co., Colo., 534 P.2d 1201, (announced May 5, 1975), we held:
'It is well settled that the technical use of the terms 'reservation' and 'exception' is not conclusive in determining the effect of a granting clause which excludes from a grant any portion of the described property. Instead the intent of the parties must be ascertained from the instrument considered as a whole.'
In the instant case, the deed, after specifically excepting Geneva Lake from the grant, stated, in a succeeding paragraph: 'This conveyance . . . is expressly subject to the following limitations and reservations, to-wit: . . . All rights of way for all reservoirs . . . now upon said premises . . ..' This paragraph expresses a limitation on warranty, while, in contrast, the deed as a whole, evidences an intent to create an exception from the grant as to Geneva Lake.
Plaintiffs next contend that the exception was a nullity because, in 1921, the date of the deed, Geneva Lake did not exist in that it contained no water, and that it therefore could not be identified. Although there was undisputed evidence that there had been no water in Geneva Lake since 1930, there was no evidence as to conditions as they existed in 1921. Further, as the trial court found, Geneva Lake was identifiable from the map and statement which had been of record in the State Engineer's office since 1906. Hence, since it was identifiable and was excepted from the deed, it was clear that the land referred to as Geneva Lake was not conveyed to Schloo by the 1921 deed. Therefore he could convey no interest in that land, and his successors in interest, including plaintiffs, acquired none.
Nor did Schloo acquire any interest in the reservoir sites by operation of the reverter clause. Since Chicago retained title to the disputed tract until its conveyance to Farmers, the asserted abandonment of the reservoir site subsequent to 1921 would be immaterial since any reversionary rights to the disputed tract had remained with Chicago under the exceptions in the deed to Schloo. Hence, the reversionary rights passed to Farmers in the 1929 deed under which Farmers received and still holds fee title.
Farmers' ownership of the land is buttressed by other evidence in the record. First, for at least 25 years prior to bringing this action, plaintiffs and their predecessors in interest had entered into a succession of grazing leases with Farmers covering the land claimed by Farmers, and, in those leases, the lessees agreed that the land is 'a parcel and part and necessary to the irrigation system of (Farmers).' From the time when plaintiffs acquired their land in 1960 until the time of trial, they were lessees under a lease with Farmers to 'that part of (s 31, Township 1 North, Range 65 West), owned by (Farmers) and used as a reservoir site and right of way for Henry Lake and Geneva Lake.' Lessees also agreed not to permit their cattle to injure 'the dams of Henry Lake and Geneva Lake.' These leases negate a claim to ownership of the fee title by lessees. See Anderson v. Union Pacific, Supra. Further, the assessor's records listed the two reservoir sites as belonging to Farmers, and the property tax statements sent to plaintiffs and their predecessors noted the exception in the description of the land taxed.
Judgment affirmed.
COYTE and VanCISE, JJ., concur.