Petition for Writ of Certiorari — Bond v. Twin Lakes Reservoir & Canal Co.

Supreme Court brief1965

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Text

~ Cyrene

Evucene A. Bonn, » Pace

Petitioner, °° . iy

v. | 3

THe Twin Laxes anaiion AND Cairas, Calas Tas re

Connecticut Murvan Lire Insurance Company, AND ei

‘Tae CoLorapo National Bank oF Denver, -

| Respondents.

av) ON PETITION FOR WEIT OF CERTIORARI |

oa _' (80 THE SUPREME COURT OF COLORADO _-

\ 2 ey Py - “tay °

PETITION FOR. WRIT OF CERTIORARI _

W. Dav MoCain;

.* Epwor A. Wuass

( _- KEueswz A. Bowp = |

Attorneys for a

Petitioner.

250 Equitable ‘Building

Denver, Colorado 80202

303-222-1731

< ?

3 INDEX

No ay cee

1.(a) ‘OPINION BELOW ......... Vee

©. (b) JURISDICTION «....)s.--2-sce-resec000+>- ‘9

-28 U.S.C.A.,, 1257(3) aie :

Fifth and Fourteenth Amendinents ae

U.S. a.

-3.(¢) QUESTIONS PRESENTED . Bmecwen er =

(I) to (V), inclusive siete sas cke tigen hei 3,4 ;

_4.(d) CONSTITUTION AND _ ee

; _ STATUTES INVOLVED..........:...5 45

_ Fifth and. Fourteenth Amendments to e

US. Constitution. OM ga —

5. (e) MATERIAL PACTS eure per eys ye 4

FINDINGS .......:. prvi daiha ve leew suite oe

MAPS - OPPOSITE ............6..caeeeees 7

6.(f) FEDERAL QUESTIONS =~ ;

—5 RAISED BELOW «5. 00050.50034 siege 8

7. ) OTHER REVIEW Pee ene veteeege oe

« Siesechint wan lnthen daclagisilons tue picnamebisk gibienes ‘wH:

ee et a

Rule 23. ,

eS :

mes Page

8. (hy ARGUMENT be SS Seine Lone nee ae

(i) Hardin vs eee eer

(ii)**Findings et Dik Coast. .5 05s ae

(iii) Petition for Rehearing ........... ae G

(iv): “ Colorado Supreme Court Opinion .. IB 3

(v) Hardin: vs. Jordan followed .........@17

“(wiy, Semi-Arid Western States..:......... 18

(vii) Res Indicate ...,.....0....;+4 peau os 19

-(viti) Questions Not ame po iaee eh eneke’ e =

9. OF OTHER. OPINIONS . HB oeessintnt 19

10. (i)~ FINAL JUDGMENT or TRIAL COURT . .

CONCLUSIONS, LES reper sfis<o¥se 08 y |

* 20777.

Page numbers refer to.the numbers used by the trial court in its |

Final Judgment likewise appearing at the designated foilo ngnaes

mentioned above.

\ sa ctnlaaead oem i OnE

ANNEXES ~ eae

1. Opinion of pee Court of Colorado i in :

Instant Case cidwe es awcdccqescpeese yet ; baa 21-27

2. Petition for Rehearing to Supreme Coartek

Colorado Lise etlsues rere TM OATES ., .28-32

+ NE os refer to Vol. 1 in unnumbered volume in case No. -

iii 3

| CBee oe A LORE UOIT OAL ig:

COD oo av pe Seay

1: | Brewer-Euliott Oil ‘and Gas Co. vs. United od Stafos — oe a

»,260 U.S. 77, 67 L. Ed. 140. Loin) neken ss pe ers . ;

oot, “2. Hardin vs. Jordan > ee REE Ds ps a

(1891) 140 U.S. 371, 35 LB. 428, Me ee

| B.O% 98 sieges bea 3, 8, 9, 10, 15, 16,17, 18, . eae :

| Oh gm

= “weston vs. Hobsov year e eee

24 Colo., 285, 289, 51 Pac. 433........ Pog yaar ig rae ae

4. R artman vs. . Bresise, 36 Colo., 146, 84 Pas. 865, :

ALBA. NS. BBT2. jvakeles a a

a Twin Lakes Ri OO: Chve Rend ME Pia ted |

tere 586, 1551 Colo——_.. eg ee onemne .Annex 1 - iaee|

6... United States. vs, lolt State Bank ea

270 U.S. 40, 70D. Ed. incl icnie eae eel? aaa

. Bi A See

1. United Sta tates vs. State of Utah oe. cae oe

283 US. 64, 75 L. Ed. 944 tte e dae n ence pene eeheeees is...

rhe EEC )

res United States vs. State of Oregon” to

295.U.S. 1, 79 L. Ed. Mc ee eieciaeas 18

9, Shively v vs. ‘Basotby, et al., AE ies Pee cae

152 US. 1, 88 Ta Wd. BBL. «0. sees ceeepeaseseees iw

| | 10. Steward on Lamm: EY “ihe msceyt} i ie) { pie

| 182 Colo, 484-489, 290 Pac. 24. 223 AED Scstnecs SE

1, Wiletdu Wild. Wea

(1891) 145 US. 116, 96 L: Ba. 644, 128, OF. 18... 4) *

ee yet

CONSTITUTION, STATUTES AND RULES ie)

ee fs »Page —

1, Fifth Amendment .............05....-.0005 2,3, 4,16

2 Fourteenth Amenduyat, cS eee re + 7s f :

he USCA. BOG, (8), oye o> oo gerevice sadiersaeecese’ 2

4. 43 US. C.A. 857 Internal Improvements Act bakes 3,5

5. BUS. ba. 94 nde, Right of Way jae aN 5

6. U.S. Supreme Court Rules | :

Rule 191 (a) .......: ite: a a a PD 2, 3,4

ne OO ck pacar eens Scueskae Footnote to Index (i)

‘ OTHER REFERENCES

lh le““Titles, Points and Lines of Lakes ana. Streams’? : |

ur. Bade, 24 Minnesota Law Review 305, me. 17

2. Inve: William Erickson (1924) 7

50 Land Decisions y.) eee mievass 18

3. In re: Grace E. Hiler (1956) 3 i

- Plaintiff , Exhibit SOD eRe RAS LEA 18

A-27370, Néw Mexico No. 01960 _ “ix

Opinions Secretary of the Interior -—

Suprem Court af the 3 Huited ‘Beaten |

‘2

> -Eveene A: Bonn,

Petitioner,

a 3 eee

Tae Twix Lakes Rassnvomn AND CaNAL Company, THE

Connecticut Murua, Lirk INSURANCE’ Conmeamy, 4 AND .

‘Tue Cotorapo National Bank oF DENVER, -

Respondents. _ rs |

ON PETITION FOR WRIT OF CERTIORARI

.TO THE SUPREME courr OF COLARADO

2 -.-

{= > @

PETITION FOR WRIT OF CERTIORARI _

Eugene A. Bond, petitiond: Siimelan respectfully. petitions

this court to issue its Writ of Certiorari directed to the -

‘Supreme Court of the State of Colorade and submits the

following in support thereof:

Opinion Below 4: ster =

1. (a). The official and unofficial reports of the pinion o |

delivered by the Supreme Court of the State of Colorado in -

po,

‘ 2

. the shire’ case aid i in which the parties appeared i in reverse

“order are as follows: :

455 ? ofitdian’. y. 7 . . (Not Reported): Colo-

* rado Advance Sheets for April 5, 1965, Vol. 17,

Me 0. a, Pe. 210; 401 aaa 2d. 586. . |

é eo 2

a = 470 es

oe 8 = Serisdiction

3 A ane of the above. pute is angended hereto as An-

hex 1. ,

‘b) The pound: on. whieh the jurisdiction of this |

| ar is invoked are as follows:

(i) The. jedgmenh sought tb: be. reviewsi was ie and

vateed | in-the Supreme Court Of the State of Colorado on

‘ May.17, 1965, the same being the day upon which said court

overruled this petitioner’s Motion For a Rehearing on the

opinion of the same court announced by it on _ 5, 1965,

as well as the date of the Remittitur. *

(ii). The date of the. Order denying the Mtion For Re- -

A ‘ii): The statutory provision 5 hatieved to confer on this

“ eourt ; :jurisdietion to, review: the, judgment in question by

Writ of Certiorari i is 28 U. 8. C. 1257 (3).

(iv) ioehedied here; i as well as to bé cinaidnesd alien the

_ subject headings of 3 (c) Questions Presented, 4 (d).Con-

stitution and Statutes Involved, and 6 (f ) Federal Capetions

Baised ‘Below, is the question: 2

_> Isthe decision of the highest aa of a jake not

z in accord with. z: able decisions of this Court, —

* eonstruing the meaning atid éffect of United States

Patents granted to homesteaders in 1879, a Federal

" yquestion of substance! and as such some 2 here. .

Supeeme Court Rule No. 19 1 (a).

gio

‘a

| heniiog was May. 17, 1965, as s atated § in. Tica of

Farmed) bamtene She ay of ancl one it ete) indi

‘upon cotenant parties | thereto, if not appealed, in the ab.

_ sence of the United States as party to such ease ts '

vation Presented sagerey git

Aa \3, (c) The questions presented for review are. the fol-

lowing : Sars : “ ae

(i) \ May the Biawekis Court of a State, in the iia

. of astate statute, or otherwise, restrict patents of the United —

- States issued in 1879 to homesteaders upon lands abutting a

non-navigable inland i22 to the meander line of such lakes,

_as established by United States Survey, made in:1876, and. -

_ referred to: in said patents, where, such patents themselves

contain no such reservation or restriction of terms or other |

limitation, and jn the absence of evidence of any intention

- of the parties at the time so to restrict or limit said patents,

_’ directly contrary to the rule otherwise laid down by this

‘Court’ in Hardin vs. Jordan (1891) 140 U.S. 371, 35.L. Ed. .

423, 11 S. Ct. 863, as well as other cases to the same effect? .

(ii) May the same > ‘Supreme Court of a State apply. the

same rules indicated above to selections of that state made

under the Internal Improvement Act of Congress of 1841, ~.

- 43 U.S.C.A, 857 to broader and even less restricted state ~~

- patents upon such selected lands under the identical fact

situations stated above, after the Hardin vs. Jordan supra -

rule had been establishéd by this .Court and recognized by

citation and reference thereto by the same State Supreme _

Court, and likewise in the ahernes, of a State Statute 80

5 requiring ?.’ F008

(iii) Dees the judgment of a State. Court so restricting .

ie said United States State patents to the meander line, in

an improvident, advi and obiter opinion, NOT NECES- |

SARY tothe decision in or disposition of the instant case

_ (because the Court later! in the sathe opinion’ dedided:that |

the instant partition casé could not: be ‘maintained at ‘this

time and directed that the lower court: Judgment: be: **ré-

“

Low) 7nd, if ‘and:only:df, ‘Federal Jurisdiction: etek

a bichman ef, or as an incident to, such Fedetal Jurisdiction

4 2

of the foregoing cshaaiieinil ange Partition be denied to @ co-

tenant, because of an assignable lease upon the interest of

one cotenant to the other equal cotenant, (1) silent as to.

partition and in the absence of express words.in such lease

° waiving the right to partition, or (2) some other agreement

surrendering or waiving partition, or (3) some inequitable

conduct justifying estoppel, and (4) where partition in kind.

was made expressly subject to such transferable lease, and

(5) contrary to the rule laid down in Willard vs. Willard

. (1892) 145 U.S. 116, 36 L. Ed. 644, 12 S. Ct. 8181

-(v)." Reference is madg here to paragraph-2 (iv) above.

‘ Constitution and Statutes Involved

4. (d) The case involves the due process of law provi-

sions of tlie Fifth and Section 1 of the Fourteenth Amend-

ments to the Constitution of the United States relating to

_ deprivation and taking of private property, the title to which

had vested long prior thereto.

- Reference is made here to eal 2 (iv) above.

Material Facts .

a ( e) The facts material to the quéstions presented

here are as follows:

Petitioner here, as plaintiff i in the trial court, instituted

a statutory partition action against his equal cotenant, Twin

. Lakes Company, and other respondents here, including the .

trustee bank and the bond holder insurance company, in the

District Court of Lake County, Colorado, in April, 1958.

The cotenancy property consisting of some two thousand -

acres of land abutting for some three miles and bordering

upon two natural inland non-navigable me herein called

- "Pwin Lakes.

‘United States Patents. to. the cotenaney property ‘and’

state seleetions of other cotenancy property were -made in

1879. State-Patents thereupon were. issued in the eighties.

Bond acquired his°one-half interest in the cotenancy prop-

‘erty in 1931; Twin Lakes acquired its one-half interest in

'. 1950. Reservoir filings upon public domain only ‘were made

in 1897-98. Construction of Twin Lakes Dams and other: -

structures upon separately owned non-cotenancy property

_-. oveurred about 1900. Easements above the natural level of

_- the lakes, but not upon the beds of ‘the lakes, were obtained

from owners of patented vsti and state peeeerty eae

thesametime. _ =

The Amended Coniplaint liege that the sola Td pron :

erty extended beyond the meander line of the said. lakes, as

established by United ‘States Survey i in 1876. (See sketch .

map hereinafter and Exhibit 6) and into and upon the beds

of said lakes from said meander line to the center or stream

of such lakes. The cotenancy property included several lots

and tracts of such lands abutting the lakes patented to pre-

decessors in interest homesteaders in 1879; as well as other

similarly situated tracts selected by and granted to the State .

of Colorado under the provisions of:the Internal Imprové- |:

ment Acts of Congress of 1841, 43 U.S.C.A. 857, and there-

after patented to predecessors in interest of the equal co-

tenant, parties to this action. In addition to its undivided’ _

one-half interest in the cotenancy property, cotenant and

defendant Twin Lakes Company,.claimed certain rights of -

way upon public domain by virtue of certain filings made by

its predecessors i in interest during 1897 and 1898 under the

_ provisions of the Federal -Right of Way Act of 1891, 43

U.S.C.A. 941-949. Such rights, under stich filings and Act,

- were confined to Public Domain and the approval thereof

by the Secretary of Interior was made expressly “Subject |

- toall valid existing rights”. Trial court Final sionet,

. paragraph 12, Page 22, folios 236-237. |

The trial court made Findings, (J adgment, paragraphs ‘

9, 10 and 11; Pages 20 and 21, folios 232-237 Record and

paragraphs 5 and 6, Page 36, folios. 278-279) upon evidence

_ adduced that the cotenancy property extended beyond said

meander line into and upon the beds of said lakes and to -

the center or thread of the stream thereof. The trial court

decreed partition in kind: of all of the cotenancy property —_

: including that upon _ of the beds of the lakes, — :

pMisarwii

° : 6 ; | .

ment, Paragraph 1, Page 37, folio 289) all based upon a

Commissioner’s Report and entered final judgment there-.

on. Said defendants, in the trial court; respondents here,

secured af Writ oft ‘Error from the Supreme Court of the

State of Colorado. ;

Your Petitioner submits kecowich on the following page,

for illustration purposes only, a sketch map of his claims and

the findings, decree and judgment of the trial court, as taken

from page 12 of his Brief as defendant in error in the wn :

preme Court - Colorado.

> -—__-——~

” SKETCH Map

I cea aaa cleimed eth Seno ondse found. by ‘Trel Court PE

(Qasic Ovtline erent

Plaintiff 3 Exhibit

OAMKECRERS

26 Line A, PARTITION LINE Ke

Parr 1-WEST OF LINEA - BOA, HOCOLS Bons |

Furr 2- EAST OF Link A-Tiw LAKES Ce; Wwadericves 3

g. Areas, belwde/? contours ae

3.Original sateral lakes extended from center of beste pee

| b Sere EGS: (1) O-beMICIOdCg 7 orginal lakes PBiecad

Dentin Lancmecd aé3) 23 630 (este de) Bend beserreal

¢ Gie es reserve ine Con ek 200: i

_ 6. Cofenoncy Wea g CTIA. ocres, us ro

oe — Shere w ovbeide i at lake = e vepro

- 8

‘The ‘Supreme Court of Colorado reversed the final judg:

3 cia of the trial court for the reason that, so it stated in its.

opinion, the patents and selections ofithe state were limited

_to the meander line and did not extend beyond it, thus leav-

ing the title to the beds of the lake undetermined although

_ it did not appear that the United States is asserting any-af-

firmative claim thereto, perhaps and seemingly because of

its adherence to the Hardin vs. Jordan supra rule (See

2 paragraph 3 af Petition for Rehearing, Annex No. 2.)

The Supreme Court of Colorado, also, ‘and in the same

opinion, specifically heid that partition would NOT lie

until the expiration of certain leases in 1971, one of which _

leases was from cotenant, Twin Lakes Company to cotenant . .

Bond, and included other property owned by said cotenant

lessor Twin. Lakes Company. Bond, in turn, executed a sub-.

stantially identical lease, likewise expiring in 1971, to the

2 Burgesses (not parties here), and assigned the lease of his

‘ -eotenant Twin Lakes Company to the same Burgesses. Both |

of these leases, including the assignment of the Twin Lakes

Company lease, were by their terms expressly assignable.

Reference to findings. and rehearing.

| --Federal Question Raised Below

6. (f) Defendants below, respondents here, first raised

the possibility of a Federal queston in the trial court in a

certain Motion to Dismiss because of the absence of neces-

_ sary partiés, soit claimed, including the United States. See

second unnumbered page of Vol. 3 of Record in No. 20005...

_ The same question was raised several other times in the trial

court, and, also, in the Supreme Court of Colorado in Cause

No. 20777, and, too, in a separate and original proceeding

in the nature of. prohibition i in the same court. The applica- |

tion for prohibition was denied and the case dismissed by —

the court sitting En Bane on May 3, 1962, by unreported

minute order therein. Twin Lakes Reservoir and Canal.

Company v vs: District Court, Case No. 20272.

Plaintiff below and this petitioner at all times tdiuortod

’ that the United States was not a necessary party and that

it could not be made a party. to this sncicnisdtiag i ohana }

its immunity, and alleged that the claims of the defendants

_ below, respondents here, were so made with the knowledge

of such immunity and for that Teason, only. All such nu-

merous efforts by Twin Lakes Company and its associates

were denied. Your: petitioner also' as defendant in error

in the Supreme Court of Colorado, in his Petition for a .

Rehearing, raised the ee in Paragraph 2 thereof. See Roe

Annex 2 2 hereto.

“~Ocher’ Review

~ not song here.

| | Aegimiat 2

-HARDIN VS. JORDAN

8. (h) . The basis for. the opinion and decision of the

trial court was the decision of this court in Hardin vs. Jor-

dan, (1891) 140 U.S, 371, 35 L. Ed. 428, 11-8. Ct. 808, That

decision, we contend’in its entirety has significance herein

and is controlling on this Petition for a Writ of Certiorari.

We limit ourselves to a quotation here of the Court’s igs

labus therein as follows :

"Meander lines, effect of — — giants of land hiadesne a on

tidewater — grants of public lands bounded on streams

— common law in Illinois — fresh-water lakes and

_ ponds belong to adjacent owners —- Land Department

cannot sell lands grevionsly disposed of.

‘1, Meander lines along or near the margin of a sistent or

other body of water are run to ascertain the quantity of

public land sold: and aré not boundary lines; the Waters

themselves constitute the real boundary.

‘2. Gtants of the government for lands ‘sbatioe on tide-

water extend only. to high-water mark ; the title to the | shore

and lands under water in front of lands 80 granted i imures —

_ to the State within which they are situated.

i a ‘Grants of the government for ands ‘bounded on

Peay & (a). Review of the Ryucesaraete bed a Federal boat is.

_ streams and other ‘sities without any reservation or re-

_ striction of terms, are \to be construed as to their effect

according to the law of the State in which the lands lie. 5 ae

. “4 The common law is the law of Illinois as to the rights

of riparian owners.

**5. - By the common. law, fresh-water lakes and Sond ex-

cept the great navigable lakes, belong to the owners ofthe

soil adjacent, who own the soil usqne ad filam aquce. “

6, The Land Department has no jurisdiction to transfer

- lands which are not at the time public property, having .

been previously disposed of ; the question whether they have,

or have not, been previously disposed of is a judicial ques-

tion and not determinable by the executive department.”’ —

(No. 161.) -

Argued Jan. 23, 26, 27, 1891. Decided May 11, 1891.

: _ FINDINGS OF TRIAL COURT

(ii) The trial court made- certain significant Nudings

of fact and law upon the matters here involved. that bring

this case squarely under the Hardin vs. Jordan rule. Those

_ findings with paragraph and page numbers of the Judg-

_ment, and folio numbers of the Record on Error, as certified |

by the Clerk of the Supreme Court and being transmitted .

and filed herein. ..

We think such findings of fact made by a trial court upon

evidence presented to it here and now are binding as to.

such facts, including ‘intention of parties and similar mat-__

ters, upon courts of review. in the absence of a new: trial

"hereof.

See ee

8 “The eotenancy ‘warty was selcaaiiy obtained by

patents from the United. States to individuals or by selec-

tion from the United States by the State of Colorado under

‘rights accruing to it by acts of Congress. The patents from eos

~ State of Colorado were to individuals.

aid ' | Pd tae ; Page 20 -

- 9 The scieinal patents foim the United States and the

| State of Colorado and the-selection lists of said State con-

tained no. reservation of the rights or’ title of or tothe

- United States or of or to the State of Colorado in or to the

area extending into Twin Lakes beyond. the meander line

of Twin Lakes as surveyed.as aforesaid,.nor did the United

: States or the State of Colorado use said meatder line as a

boundary line of the traets conveyed in and by said patents.

* It does not appear that tle United States or the State of. .

Colorado intended to: use. the’ original meander line: as. a

boundary line of the lands — nor does it appear that

' 233

the public officera, i in making sales, aig actually or by neces-

sary implication make the meander line the boundary line,

in said patents. Under such circumstances, the general-rule

that the meander line is not the boundary line applies and

under -that: rule, : ‘the patenteés ‘obtained title from the

meander line on the various lots and tracts —. hedcder- 3

Lakes to the center of Twin Lakes. © - | ‘

} 10. - All conveyances to the cotenancy property since 2 ‘the :

_ patents by the United States and the State of Colorado have

used sateen: the same Geocriptions.s as those eed. in

- the snkenti sa none » of said conveyances cae citadel a

reservation of the area extending from the meander line _

inward to the lake, and none of said conveyances, affirma-

_ tively or otherwise, contain words indicating an intention.

to use said: meander line as’ boundary. line, and” said,

"meander line has not been adopted as a boundary line in any

_ conveyance in’ éyidence in this’ case. "The Court finds ‘that

>’ the ‘present cotenants have a fee title ‘from the mean ee

line on the various lots and tracts’ Eesutsn Sy wih Lakes to 2

the center of Twin Lakes,.. sind bs :

iL. ‘All patents from the United States and the State of

935

Colorado, to individuals of. the cotenaney property adjoin- —

ing or abutting Twin Lake#&were issued prior to any filings

or use by the predecessors in interest of or by The ‘Twin

Lakes Reservoir and Canal Company of the area of Twin

Lakes within the meander line or above said line as the same

" was originally surveyed, mapped and existed on the tracts

ccs constituting the cotenancy property. By such patents, the

- . United States and the State of Colorado divested themselves .

: of the fee title.to the land’ lying: in said Twin Lakes within .

said meander line and thereby the patentees and their suc-

_ cessors; including plaintiff and defendant The Twin Lakes.

‘Reservoir and Canal Company acquired a valid existing |

| 236

right and vested interest in said. area ‘of Twin Lakes within

said meander line.

. 12, Any siiihla acquired or permits granted to in late.

cessors in interest of the defendant The Twin Lakes Reser-

voir and Canal Company were granted expressly ‘subject

to all valid existing rights,’’ and the said predecessors in

interest of said defendant company thereby acquired no

- tights by said ‘filings and order thereon in,.to or upon the

area of Twin Lakes within said meander line as previously

patented. to such individuals. Plaintiff and defendant The

‘Twin Lakes’ Reservoir and Canal Company have succeeded

Page 22

to ‘‘all valid existing rights” in the bed and floor of Twin

‘ Lakes and the same are a part of.the cotenancy property

herein, subject, however, to the terms and conditions of the

thereafter granted Dexter Easement and Bond Easement as

‘described and defined in said easements and i in this Findings

_ of Facet, Conclusions of Law and J udgment.

23. ‘Plaintiff is entitled in law and ~~. and has ‘a -

‘to a partition of the cotenancy property, ei either in kind, or: .

by rs or. ee as in law and equity authorized. and

266

: D- , _ Page 32

Z provided. Such. partition should and shall be subject to the

following:

a. The term a terms of the deikciniinist of the lease by

, plaintiff from defendant The Twin Lakes Reservoir

and Canal Company and the separate lease from

plaintiff, each, to defendants William C. rarer and

Betty Gene Burgess.

ce. The rights, privileges and obligations ‘of plaintiff

and defendant The Twin Lakes Regervoir and Canal

267

Page 32

Company in, wader and by virtue of their various

' agreements in writing and in evidence. in this cause,

between plaintiff and said defendant under date of

+ July 7, 1951, and being the following :

(1) Lease to Bond, Exhibit 1;

(2) Ane, Exhibit 2;

AND THE COURT DOTH NOW STATE ite conclu-

sions of.law as follows: :

‘CONCLUSIONS OF LAW

* Plaintiff and. defendant The Twin Lakes Reservoir

and Canal Company have an interest and are cotenants in

the fee title to the cotenancy property hereinabove described,

and plaintiff is entitled to and has a right, in law and equity,

ofiieeen eo

to have the fee title partitioned and divided i in manner and

14 ©

form as provided m law an as found, ascertained and, de

| termined herein.

2. The division and partition of the fee title to the co- .

tenancy property should be made in kind, or by sale if par-

tition cannot be made without manifest prejudice to the

rights of any interested party or parties, or by a combination

of both methods, as may be provided by law and in this Find- -

ings of Fact, Conclusions of Law and Judgment.

3. The division and partition to which the plaintiff is

- entitled in law and equity should be subject to the following: .

a. The right, title and interest of defendants William

C. Burgess and Betty Gene Burgess under and by

275

Page 35

virtue of the terms of the assignment by plaintiff of

his lease dated July 7, 1951 from defendant The Twin

Lakes Reservoir and Canal Company, and also of

their rights, title and interest under the separate lease

from plaintiff to them of the same date, all as herein

expressly stated, found and ‘adjudged. —r

5. Such rights as may have Seen acquired by defendant

The Twin Lakes; Reservoir and Canal Company and its

- predecessors in interest and title in, under and by virtue

of its or-their filings with a department or agency of the

278°

‘Page 36

United States of America as herein mentioned, are junior

- and subject to the rights of plaintiff and defendant The |

Twin Lakes Reservoir and Canal Company, and of their

prédecessors in interest, under and by virtue of the various

patents issued by the United States and the State of Colo-

rado to and upon the cotenancy property as herein described.

ee The original meander line of Twin Lakes as originally

surveyed by and for the.United States was_not, nor was the .

same adopted as or intended to. be the boundary line-of the .-

lots abutting Twin Lakes in the patents and conveyances

thereof; and the rights, titles and interests ofthe cotenant

[eo Sane

i Page 36

parties i in and to the eotenancy property extend from: ‘said

meander line into the lakes and to the center or thread of 3

the stream of said upper and lower Twin Lakes.

- WHEREFORE, IT-IS NOW ORDERED, ADJUDGED ~

AND DECREED: BY THE COURT as follows:. -

280

5 Page 37

._ 1. The fee titles.to the cotenancy. property as described ;

herein shall be partitioned and divided equally between.

plaintiff and defendant The Twin Lakes Reservoir and

Canal Company i in manner and form as provided by law,

either in kind, or by sale, or by a combination of both

methods, as may be authorized by law and as provided in

this Findings of Fact, Conclusions of Law and Jadement:

te, (III) "PETITION FOR REHEARING

The Petition For Rehearing to the Supreme Court of

Colorado likewise, . in. its entirety, has significance here and

the same is specifically referred to on this point, appended

hereto as Annex 2, and expressly incorporated in in this ee

ment. °

- COLORADO SUPREME COURT OPINION.

(iv) The Supreme Court’ of Colorado recognized the Fr

Hardin vs. Jordan. rule in Hanlon vs. Hobson, 24 Colo. 285,

289, 51 Pac. 433, and in Hartman vs. ato 36 Colo. 146,

_ 84 Pac. 685.

Also see Stewart vs. Leniall 132 Colo. 484, 480, 290 ‘Pen

(2d) 223, where it is stated that,

**It is well settled law that when a government grant

--is‘made which does not reserve a right or interest

that would ordinarily pass by the rules of law, and

the government does not act which indicates an inten-

tion to make such reservation, the grant includes. all —

that would pass by it, as if it.were a private grant.

Johnson v. Johnson, 14 Ida. 561, 95 Pac. 499; Mid-

« dleton-v. Pritchard, 3 Scram. 510 (III. hi Hardin v.'

Jordan, 140 US. 371.

The judgment of the trial court must be and it is

affirmed.’’

That court in the instant case, however, recognized

the Hardin vs. Jordan rule without. expressly citing it, but

after noting the two earlier Colorado cases mentioned im-

_- mediately above, based its décision on what it claimed were

certain exceptions to that rule. Those claimed exceptions

were that Court’s interpretation of the official map of the

_ original governmental ‘survey of 1876 and that Court’s

hindsight surmise, only, as to an unexpressed and non-

existing intention of the parties therefrom. The State

Court’s surmise therefrom was contrary to the Hardin v.

Jordan rule, which the trial court éxpressly held to be ap-

plicable in the absence, of ‘‘any reservation or restriction

‘of terms’’, in the patent itself, No such reservation or |

struction existed in any of the patents, Federal, State or

_ the Selection List, involved here.

ec ‘The Colorado.Supreme Court also arbitrarily and invor-

rectly assumed that the projection of the lot lines from the

_ Meander line would be perpendicular and parallel to each

other. Such unwarranted assumption disregards the rule

that the projections in each instance shall converge at the

center or thread of the stream of the lake in pie-shaped

fashion. Some other cases have ‘also held that the projection

_ wonld be limited to the sections specifically mentioned in

the patent. The pie-shaped fashion, either to the center or to

the limits of the described sections is the rule universally

applied in such cases. Such rule makes the State Court’s

assumption meaningless and bordering on the ridiculous.

_A scholarly article upon the entire subject by Mr. Bade

entitled ‘‘Titles, Points and Lines of Lakes and Streams’’.

appears in 24 Minnesota Law Review, ene on Page

305 ; see also Page 313.

The statement of the Colorado Supreme Court that the

United States and the State of Colorado granted storage ~

rights to Twin Lakes and its predecessors for the storage ©

of water upon the private property of others is not true.

The approval of the claim of a right of way was expressly

made “subject to all valid existing rights’’.

Title to the beds of the lakes was vested in the. patentee

homesteaders of the Federal Government and other patent-

ees of the State of Colorado. Those rights to the beds of

the lakes became vested when the Federal Government

granted all rights to the center or thread of the stream of

‘the lake in the patents to homesteaders and in the selections

‘made by the State of Colorado long prior to the Federal

Right of Way Act of 1891 and by reason thereof such parts

of such beds projected from -the cotenancy lots ceased to be

public domain and as such were not subject to the jurisdic-

- tion of the Department of Interior at the time of the filings

for right of way or the approval of such filings. 2

The Hardin vs. Jordan case, as well as éviantieais other

such cases specifically so hold.

(V) HARDIN V. JORDAN FOLLOWED

The rule j in Hardin vs. Jordan has been ventiieiaald aia

consistently applied by this Court, including all Federal

Courts and many, State Courts:since its announcement, and

it has been applied by.the various governmental departments

in issuing and construing — of the United States to

. its citizens.

1 Brew er-Elliott Oil and Gas Co. vs. United ‘States, 260 ©

‘U.S. 77, 67 L. Ed. 140. |

2 United States vs. Holt State Bank, 270 U.S. 40, 70 L.

Ed. 465.

P 18

"3. United States vs. State of Utah, 288 U.S. 64,75 L. Ed.

4 United States vs. State of Oregon, 295 U. S. 1, 7 9L. Ee.

1267. a secines

5 “Shively vs. ‘Bowlby, et al., 152.U. 18.1 1, 38 L. Ba. 331.

A comparatively recent or of this appears in the

following land decisions :

In re: William Erickson (1924)

> 30 Land Decisions 281.

In re: Grace E. Hiler (1956)

Plaintiff’s Exhibit BB

Opinion by then Assistant and Acting Seteetary of In- -

terior, now United States District Judge, Hatfield Chil-

son, in No. A-27370, New Mexico No. 01960.

—Overruling Hardin vs. Jordan, supra, will confuse, Jeopar-__

pen and open to question all United States Patents as well

as many state patents issued ip reliance upon the ruling in >

that case, upon lan’s abutting inland natural non-navigable

lakes. ©

‘As such it would also danatibate a violation. of the due

process of law provisions of the Fifth and Section I of the

; Fourteenth ‘Amendments of the United States Constitution.

7 (VD), SEMI-ARID WESTERN STATES

(vi) The Colorado Supreme. Court seemed to suggest

in a single sentence that the Hardin vs. Jordan rule might

not be applicable i in the arid western states, where the doc-

trine of prior appropriation of public waters in the streams

(only) has restricted and limited the original conception of

riparian rights flowing from the sic utere doctrine. Water

rights are not here involved. This case has to do with the .

title to the land constituting the bed of the lakes, and not

the water thereupon: Rights-to the use of water in our west-

_ ern states are independent of the ownership of the land upon

which the waters flow. 7

{

arundel

' The Common Law of England ‘‘so far as the same is

applicable and of a general nature’’ is by statute the com-

mon law of Colorado, the same as it is the common law of

Illinois as applied by this court.in Hardin vs. J ordan, 135-

1-1.Colorado Revised Statutes, 1963, and 1953.

awe eae eee

While the Sic Utere Rule does not apply to water in prior

appropriation states, other riparian rights such as fisheries,

etc., do, as specifically held in Hartman vs. Tresise, 36 Colo.

146, 84 Pac. 685, 4 L.R.A. N.S. 872.

(VII) RES JUDICATA

(vii) It may be, as we think it is, that the ruling of the .

State Supreme Court with reference to the beds of the lakes

is ‘not res judicata on that question here between the two

cotenants in the absence of the United States as a party.

This is certainly true of the State of Colorado who.is the ©

owner of shore line lands on the opposite shore from the co-

—tenaney—property..The Colorado Attorney General dis-__

claimed any rights to the cofenancy property.

~The fact that the Colorado Supreme “Court ruling might

-be urged as res judicata in a.later proceeding, such as con-

demnation, has persuaded this petitioner to question that

ruling here and it has, in part, induced him to urge the

. granting of certiorari now and here.

(VIII) QUESTIONS. NOT COVERED HERE

(viii) .We refrain from presenting an argument upon

| the fourth and last points designated as Paragraph 3 c (iv)

: and under the title of ‘‘Questions Presented’’ for the reason .

that it is not now involved in the question of the granting of

the Writ prayed for..That point will concern this Court only

if the Writ is issued, and then only as incidental to the other

questions. We think that, that point may be left for the

- future:

Other Opinions

9. (1)- This case was before thé Colorado Supreme

Court in its No. 20005, where respondents here as plaintiffs

in error there unsuccessfully contended that the first order

granting partition and appointing commissioners to. make

division was a final order. The Colorado Supreme Court

there remanded the case for further proceedings which, in

turn, resulted in the Final J udgment, so called, of the trial

court and the review thereof in the instant case No. 20777.

-No other reference thereto is necessary here except to state

that the record in N 0. 20005 is properly a oe of the record -

in this case.

Final Judgment of Trial Court

10. ( i) Pertinent provisions of the Final J adiment |

of the trial court were noted and quoted in 8 (g) Argument

above, and no further comment under this heading is deemed

necessary. ; |

Conclusion.

We request that a Wri $f Certiorari issue herein.

Attorneys for Petitioner

250 Equitable Building

Denver, Colorado 80202

Telephone 303-222-1731

The TWIN LAKES RESERVOIR AND CA-

NAL COMPANY, the Connecticut Mutual

Life Insurance Company and the Colorado

National Bank of ——, Plaintifts | in Er-

. for,

Raree, * Ss

Eugene A. BOND, Defendant in Error.

ae No. 20777.

Supreme Court of Colorado.

En Banc. ‘

April 5, 1965.

Rehearing Denied May 17, 1965.

Action to partition certain ggal estate.

The

H. Luby, J., rendered judgment granting

' relief, and the defendants brought \error.

The Supreme Court, Moore, J., held that “

agreement between cotenants of land ly-

ing on natural lakes whereby one parted

with substantial cash consideration for ex-

Clusivefind perpetual easement and further

- right to sell or lease all rights to govern-

ss _ment agencies up to date of epsom of

lease precluded partition.

Judgment reversed. ©

née Deeds €>112(2)

Where conveyance is made with refér-

ence to official map or plat, it becomes part

’ of grant or source of reference in ascertain-

ing intentions of parties.

2. Navigable Waters €=37(4)

Fee.owners of lots on natural lakes did

not have title to center of lakes where gov-

ernment survey meandered lakes and plat-

a ted fractional lots on all sides, designating

acreage contained to’ meander lines and

where patents from which land was derived

referred to and contained same lot numbers

as official survey and disclosed such acre-

ages for lots.

‘

. 3 Partition €=22

Agreement made by cotenants. not to

‘ partition may arise by implication, ‘and

where contract between them cannot be car-

‘District Court, Lake County, William

401 PACIFIC REPORTER, 24. SERIES

Annex 1: Pgs. 21-27 Inclusive :

' fied out in event of partition, then cotenant

has no right of partition.

_ 4 Partition @=22

Generally, partition will not be granted

at suit of one in violation of his own agree-

ment, since agreement operates. as estoppel

‘ against right to partition.

_ §.. Frauds, Statute of 1 19(2)

_ ing of partition would destroy estate sought .

Agreement within operation of rule

that violator of agreement is not entitled

to partition may be oral where it-has been

so far performed that to allow its repudia-

‘tion would be tantamount to allowing com-

mission.of fraud:

6. Partition @=22,

Agreement not:to partition may be im-

plied as well as express; and wil: readily be

_ implied and enforced. if such implication

proves necessary, to secure fulfilment of

agreement between cotenants, or if grant-

to be partitioned.

7. Partition €022

_ Agreement between cotenants of land

with shacnaiiel cash cousidacatiins for-ex-

clusive and perpetual easement and further

right to sell or lease all rights to govern-

ment agencies up to date of expiration of

lease — partition.

| Thulemeyer & Stewart, La Junta, Yegge,

Hall & Shulenburg, Peet: for plaintiffs i in

. error.

W. Davi McClain, Eugene A. en

Denver, for defendant in error.

MOORE, Justice.

We will refer t The Twin Lakes Res-

ervoir and Canal Company as Twin Lakes

~ in those instances in which the reference is

to the company as distinguished from the

other plaintiffs ‘in error. Where all plain-

tiffs in error are equally affected they will

be referred to as the defendants. The de--

_fendant in error will be referred 1 to as the

- plaintiff or as Bond.-

sac ciao aie nant acacia deeded ienhaaanaieen thane eitieaian i maeananehrnieenee s se : “re

. :

eT ee eee ee a

ja ate t

Bok ete): aenbdasie

TWIN LAKES RESERVOIR AND CANAL, OOMPANY y. BOND Colo. 587

_Cite as 401 P.2d 5868

hw: actlen wes conbiienced te ‘the: trial

court by Bond who sought to partition cer-

tain real estate .in eight sections of land.

in Lake County, Colorado. The case in-

‘volves a substantial acreage lying under

two natural lakes commonly known as Twin

Lakes. It also involves other lands not

bordering upon or in any way connected.

with the water in the lakes or the stream

which empties into and flows out of titem.

The water level of the two lakes was rdis-

ed from time to time by the erection of a:

dam at or near the outlet of the lakes. Ex-

clusive and perpetual easements for the

storage of water were acquired over a

_ period of many years by the predecessors of .

Twin Lakes, and also by Twin Lakes itself.

These easements began at the meander line

of thé shores of the two Jakes originally fix-

ed.as the “12 foot contour line.” They cov-

_ ‘ered the area from this line outward to the

23 foot contour line, then further to the 30

foot line and ultimately to a 40 foot contour

line.

‘Twin Lakes and Bond are the owners of

the property in dispute, as tenants in com-

mon, each interest being an undivided one-

half of the whole. -The title of the parties

stems, in major part, from patents from the |

United States, and to a lesser area from

- selection by the State of Colorado pursuant

to the Enabling Act and subsequent patents

from the state. All the patents, whether

- from the federal government or the state,

‘were issued with ref te an i

government survey of_T ip 11., This.

survey was admitted in evidence and shows’

both the upper and lower lakes involved in

this controversy. ‘The survey became of-

ficial by approval of the Surveyor General

on March 31, 1877. Both the upper and low-

er lakes are irregular in shape, by which we

mean that they cannot be described as being

. found, square, triangular or oval in general

characteristics. . The land abutting the lakes

was platted and surveyed to the boundary -

of the lakes, and the meander lines, of the

lakes marked the inner boundaries of the

numerous lots shown: by the plat. The-sur-

veyor used let numbers to es ‘the

_ The trial court, in ordering partition in

kind of the lands involved in the =_—

found as follows:

“Twin Lakes was originally ‘two

natural bodies of water collectively

described as Twin Lakes and sometimes

referred to as the upper and lower

lakes. The cotenancy property extends

into and upon the bed and floor of

Twin Lakes from the meander’ line.

thereof on the lots and subdivisions

abutting Twin Lakes, as the same were.

originally surveyed, mapped and desig- -

nated by and for the United States and

as approved -by the Surveyor General

under date of March 31,.1877, and of °

record in his office and in evidence in

this cause as Defendants’ Exhibit No.

6; and said property includes such

areas of the bed and floor of said Twin

Lakes from said meander line to the

. center or thread of Twin Lakes.”

As a factual basis for that finding the trial

court found:

“The original solute from the

United States and the State of Colorado

and the selection lists of said State:

contained no reservation of the rights

or title of or to the United States or of

or to the State of Golorado in or to the

area extending into Twin Lakes be-

_yond the meander line of Twin Lakes

as surveyed as aforesaid, nor did the

United States or the State of Colorado

use said meander line as a boundary

line. of the tracts conveyed in and by

said patents. It does not appear that

the United States or the State of

Colorado intended to use the original

meander line as a boundary line of

the lands patented; nor does it appear

that the public officers, in making sales,

did actually or by necessary implication

make the meander line the boundary

line in said patents. Under such cir-

cumstances, the general rule that the

ee ee Sa oe eee

‘

vamansiiietiiaseed

a. Grr -

elk ead cakes Oe oh, Got

entees obtained title from the meander |

line on the various lots and tracts abut-

ting Twin Lakes to the cerfter of Twin

Question to bé Determined :

Did the trial court err in decreeing that

the plaintiff Bond and the defendant Twin

Lakes were cotenants and joint owmers

_ of the lands to the center or thread of

_ Tein Lakes, ond im oridering 0 portition

of the property? | .

The question is answered in the affirma-

tive. We are well aware of the majority

' rule that where land is conveyed to the

shore line of or along the line of a running

stream, the grantee receives the fee title

to the’Genter thereof. It must not be. over-

looked, however, that most of those deci-

sions are from states which recogaize the

doctrine of riparian ownersitip. We are

also not unmindful of those early Colorado

cases of Hanlon v. Hobson, 24 Colo. 284, 51 -

P. 433, 42: L.R.A. 502, and Hartman v.

Tresise, 36 Colo. 146, 84 P. 685, 4 L.A,

N.S., 872, which adhered to the general

rule that when the tract of land granted is

described as bounded by a nonnavigable

stream, the middle or thread of the stream

is the true boundary, unless the conveyance

contains ‘an express or. implied reservation

of the stream, or words — the bound-

aries to the bank...

[1,2] The official map of the original

government survey shows that every tract

- . of land bordering on each of the lakes is

shown by a lot number within certain sec-

tions. Each of these lots is of an irregular

acreage of less than a full. forty acres

which is the usual surveyor’s way of iden-

tifying lands within any given section. On

each of these lots the acreage contained

therein appears on the map.

The fallacy of the trial court’s conclu

sion may be illustrated by reference to Ex-

hibits 23 and 26. Exhibit 23 is a patent

issued to one Moses Bruner. It conveys

- four separate lots, as numbered on the map,

which border on the original meander line

Of the west end of the upper Twin Labe,s

do eR ETL EI LEE EERE SL ALEC SIE LEE ENE EG

401 PAGIFIO REPORTER, 2a SERIES

snd sbith wees Meiied. te Sellen 4.

Each of the lots is described on ‘the map

as containing fractional acreages. Exhibit

26 is a certified copy of a patent issued to.

Zeriah Smith. Part of the land. therein

.conveyed is a lot which borders on the me-’

ander line.of the south shore of the upper

‘Twin Lake. As in all other instances

where lots are shown on the official map,

rthe irregular acreage is portrayed. If the

jots to the west of upper Twin Lake convey

to the middle of the lake, then the descrip-

tion of the lots coming in at right angles

from the south would be a conveyance to

the middle of the lake. It is obvious to ©

anyone who may look at the official map

that if the trial court’s conclusion is cor-

rect the grourid under water would be con-

veyed to at least two different persons.

This situation prevails all around both

lakes, and the construction placed upon the

patents by the trial court creates a hopeless

conflict of ownership arising from patents

issued to separate grantees ‘all around the

Twin Lakes.

hich an govern-

ment officials created any such havoc by

the various patents. all around the Twin

Lakes. That the government itself did not

‘so construe those patents is evident from

its action in accepting the application of

the predecessors of Twin Lakes for stotage _

rights, ahd when, in 1923, it later certified

that the rights of Twin Lakes to store wa-

ter had been earned. .

‘The admitted fact that the United States

and the State of Colorado granted storage

rights to Twin Lakes and its predecessors

for the storage of water in the upper and ©

lower lakes disproves the conclusion that

they had parted with title “to the center

of the lake” when they issued patents to

lots showing the meander line as a bound- -

ary. ‘In Smith v. Town of Fowler, 138

Colo. 359, 333 P24 1034, this court re-

affirmed the middle of the stream rule by

holding that where the words, “along,”

“to,” or “bounded by” a water course are

used to describe a grant of land, the grant

extends to the thread of the stream, unless

ee ee

bale ol LAKES RESERVOIR AND

“«

OOMPARY v. BOND Colo, a9

_ ¢Cite as 401. P24 586 .

‘s contrary, intcntioa of.the parties appears;

but that where a conveyance is made with

reference to an official map or plat, the map

ot plat becomes a part of the grant, or a

- source of reference in ascertaining the real

intention of the parties. In that case this :

court said:

“Where a conveyance is made with

reference to an official:map or plat, the

‘ map or plat becomes 4 part of the grant. —

Thus in the case of Wisconsin Realty

Co. v. Lull, 1922; 177 Wis. 53, 187_N.

W. 978, {980], the Supreme Court of

Wisconsin considered. a very similar

claimed, if the. boundary sheuld’ i

limited by the two quarter lines, or the .

173 acres if to the actual river, is in

either event so grossly excessive as to

‘ indicate, in. connection with the pur- . «

_ chase ‘price, that neither of the larger

quantities could have been within the |

intention of the parties.

“‘Eypress reference to the United

States government survey makes the:

plat as recorded in pursyance to the

' field notes, if not a substantial part of

the deed, at least an appropriate source

of reference in so ascertaining the real .

situation to'that. before us. There, as itttention.’ ” ¢ ‘Aa

- here, the government survey meandered Te the pail case the government sur-

a river and platted fractional lots in vey meandered two lakes and platted frac-

B . SRRASEMRY. WHR em Tine: TRE Go: s 11 asdl Sots on Slt siden of tiene Sans tend be

| scription in the goqveyance involved — between.the jaleie Each lot chown on the

es J ~ pA erag eid hia peeps survey. designates and discloses the acreage —

oa “ Flambeau ant. céataini contained therein. The patents to the lands

| ™& = bordering on and all the way around and

“; 65.48 acres more or less according t0 between both of the Twin Lakes refer to

the United States government Survey.’ ‘ia ti aaa covey the ‘sashe by lot num-

A subsequent survey showed the river bers according to the official, survey, and in

to he a considerable distance south of | every-case the lot as menhataiten tes deux

paid ngsan ch - that all of Bresdie i ~yey discloses the acreage of each lot. The

+/+ ners wean Sy Flam- difference between the acreage as shown on

ain Milas Ping Sones alii Ss the lots.and the:acréages claimed by Bond

on ond tothe grantee. ae resolvins are very material. The increase in acreage,

h ae it. th Wi if ownership iP carried to the center of the

the question ore. it: the Wisconsin lake or to the “threadwof the stream,” is so

- court said:

—— construction of the entire con- ee eee onme

veyance: satisfies us that the meander * From the date- of the origina patents,

lines as designated on the plat and in subsequent owners of the property described

the original field notes must be held-to. _— therein have granted easements for storage.

be the actual boundary, of the land. Of additional water to Twin Lakes,” and

coniveyed’for the following reasons: ._ invariably started or ended the description

“'The conveyance contains an ex-

press reference to this particular gov-

ernmental survey ; -.

“It contains an express reference -

to a particular lot platted and repre-

sented on such survey ;

granted at the original high water meander

line of the natural lakes. This significant

fact indicates clearly that at the time of the -

granting of those easements the grantor

did not claim” ownership of the bottom of

the lake to the center, thereof, or to the

“ ‘It contains a specific designation as “thread of the stream.”” For over sixty

* to the acreage contained. "years no grantee in any patent, nor any

+ “The difference between the desig- successor in interest, claimed ownership to

f - Mated acreage in the conveyance of ‘any portion of the land under the water

, 65.48 acres claimed and the-160 acres _ of the lakes.

ae =F.

of the land over which the easements ‘were |

- 599 ~ Cob.

The United States, after executing pat-

ents to. individual owners as above out-

lined, granted to Twin Lakes or its prede-

- essors the right to use that land for the

_ Storage of water as did also the State of

401 PAGIFIO REPORTER, 24 SERIES

agency, at.any time during the term of the

. lease, all of the Company’s interest in prop-

erty lying below the 40 foot contour level.

1971: Any meaningful construction of

Colorado by virtue of other filings made the weal: “beneath” as therein used could

' with the state engineer. If those rights of

storage were inconsistent with or contrary

to the rights of the patentees, it behooved

them to take some action to protect their

rights.

We pass now to consideration of another

important phase of this controversy. In

‘’ 1950 Bond brought an action against Twin

_ Lakes claiming damages for trespass by the

over-flowing of water on the’land area be-

tween the 23 foot contour and the 28.65

foot contour levels. Bénd also sought in-

junctive relief. Before final disposition was. ,

made by the court-in that action, it was dis-

missed (July 28, 1951) on stipulation of the

parties. The’ dismissal was with prejudice.

[3] The agreements upon which the

stipulation for dismissal of that action was

based were generally as follows: Bond con-

veyed an easement to Twin Lakes on parts .

of the land involved in that litigation for

the storage of water.. He received as con-

sideration the sum of $25,000 which osten-

sibly put an end to the dispute raised in the

pending case. In addition .to ending that

‘dispute, and as the inducing cause thereof,

' Twin Lakes and Bond entered into a series

- of transactions whereby they defined new

rights and interests’ in the entire tract of

property held by them as cotenants. They

expressly provided by separate agreement

to “compromise and settle their differences

arising out.of the joint ownership of the

_ property.” By these documents Bond not

only received the $25,000 but acquired most.

of the interest in land which Twin Lakes

owned in the Village of Twin Lakes for

the stated consideration of $100.00. Twin

Lakes gave Bond a lease on its interest in

the remainder of all the property involved

‘herein. The term of that lease was for 20

years. In that lease Bond agreed that Twin

‘ Lakes ‘could use or sell to a government

.of Mcintire.

only mean the area between the 40 foot

contour line and the meander line of the

original Twin Lakes. A partition in-kind

of the property as ordered by the trial court

would defeat entirely the right of Twin

Lakes to sell and to use that property “at

any time during the term of the lease”

executed by Bond. An agreement made by

cotenants not to partition may arise by

implication, and where a contract between _

them cannot be carried out in event of parti-

tion, then a cotenant has no ‘right of parti-

tion. °s

- In McIntire v. Midwest Theatres Categi _?

ny, 88 Colo. 559, 298 P. 959, there was a

lease on a building, owned as cotenants by.

McIntire and Midwest Theatres Company,

under which the company leased the interest

The company sought parti-

tion. In that case this court said:

“Counsel for McIntire say that the

‘company is, by its 1924 contract, es-

topped to demand partition, and that

the court was without power to enter

such a decree. On the first proposition

they cite 47 C.J. §§ 130 to 132, p. 321,

and on: the second the same volume,

section 532, p. 482, and section 932, p.

613. They further insist that partition

is, under the circumistances here dis-

closed, contrary to equity and good

conscience.

“The company stands upon the gener-

al rule that a tenant in common. is

entitled to partition, says the answer

is a plea in abatement until the ex-

. piration of the lease, and cites section ~~

5149, C.L.1921, prohibiting that plea

in a partition suit.

“The usual rule is as stated by the

company. The sole question here is

its applicability. Whatever may be

said of the authorities cited, the simple

fact is that there is nothing inalienable

TWIN LAKES RESERVOIR AND CANAL COMPANY v. BOND Colo. 581

Cite as 401 P.2d 586

about this right of partition. A tenant

in common may contract it away, and

this company has ynquestionably done

so. It agreed to pay McIntire $265 a

‘month until May 1, 1932. It secured

-those payments by a mortgage on the

leased premises. It now seeks, by the

simple expedient of partition, to release

that mortgage ‘and evade those pay-

— ‘unless McIntire purchases atthe .

- Of course it cannot thus escape

additional expenditures to protect his

contract.”

In Arnold v. Arnold, 308 Ill. 365, 139 N.E.

592, the Supreme Court of Illinois has this

to say of a similar situation: _

“It has been said in general terms

that an adult tenant in cemmon has an

‘ absolute right to partitien (citing au-

thority); but it has been in eases

where there was neither an equitable

nor legal objection to the exercise of

the right, and partition was in accord-

ance with the principles governing

courts of’ equity, Wherever any inter-

est inconsistent with partition has been |

involved, the general rule has always

been qualified by the statement that

equity will not award partition at the

suit of one in violation of his own

agreement, or in violation of a condi-

tion or restriction imposed upon the

estate by one from whom he claims,

or where partition would be contrary

to equitable principles. Partition will

not be awarded in a court of equity,

‘ where there has been an agreement

- either not to partition, or where the

agreement is such that it is necessary

to secure the fulfillment of the agree-

ment that there should not be a parti-

tion. Such an agreement may be ver-

bal, if it has been acted upon, and it

need not be expressed, but will be

readily implied, and enforced, if neces-

sary to the protection of the parties.

Martin v. Mattin, 170 Ill. 639, 48 N.E.

924, 62 Am.St.Rep. 411; Bissell v.

Peirce, 184 Ill. 60, 56 N.E. 374; Ingra-

ham v. Mariner, 194 Ill. 269, 62 N.E.

609; Seals v. Treatch, 282 Ill. 167, 118

N.E. 422; Hill v. Reno, supra [112

IH. 154].”

In Carolina Mineral Compiny v. Young,

220 N.C. 287, 17 S.E.2d 119, 151 A.L.R. 383,

the rule of estoppel by implied agreement

arising from an existing lease between the

cotenants was recognized and applied. Me-

Intire v. Midwest Theatres Company, supra,

was discussed at length and the rule there

applied was approved. This court has

repeatedly recognized the doctrine of estop-

pel in pais, even to the point of decreeing

that it may effect a waiver of statutory and

constitutional rights.

In Johnson v. Neel, 123 Colo. 377, 229 P.

2d 939, with reference to the doctrine of —

estoppel in pais, this court said:

“We are of the opinion that under

the peculiar facts-of this case the.

doctrine of estoppel in pais is applicable

and controlling. This doctrine is

founded upon principles of fair dealing

and is designed to aid the law in the

administration of justice where without

its aid injustice might result. In 19

American Jurisprudence page 640, we

find the following statement: ‘General-

ly speaking, however, equitable estoppel

‘is a rule of justice which in its proper

field prevails over all other rules.’ The

doctrine of equitable estoppel has been

invoked to cut off*rights or privileges

conferred by statute, and constitutional

rights may be effectively waived by

conduct consisting of action or failure

to act. Munsell v. People, 122 Colo.

420, 222 P.2d 615; Kalloch v. Elward,

118 Me., 46, 108 A. 256, [258], 8.

A.L.R. 750; Wilson v. Philadelphia

School District, 328 Pa. 225, 195 A. 90,

113 A.L.R. 1401. ‘A statute cannot

stand in the way of waiver or equitable

estoppel when the’ facts demand their

‘ application in the interest of justice

and right.’ Kalloch y. Elward, supra.”

See also Sanger v. Larson Construction Co.,

126 Colo. 479, 251 P.24.930; Piz v."Housing

‘ Authority, 132 Colo. 457, 289 -P.2d 905;

592 Colo.

Mabray v. Williams, 132 Colo. 523, 291 P24

677.

[4-6] In the case at bar Twin Lakes

parted with a substantia] cash consideration’

and other of its properties for an exclusive

and perpetual easement from the 30 foot

contour line,. with the assurance of Bond

that during the period of the lease it would

_ not be deprived of an easement from the 40

foot contour towards the original Twin

ther granted the right of sale or lease of

all these rights to a government agency up.

to the date of the expiration of the lease

in 1971. The full enjoyment by Twin Lakes

of these contractual rights cannot be mini- —

mized or defeated by partition. In 68:°C.J.S.

Partition § 44, we note ae re cogent

language:

.. “The general rule is well settled that

partition will not be granted at the suit

of one in violation of his own agree-

ment, since the agréement operates as

an estoppel against the right to parti-

tion. An agreement within the opera-

tion of this rule may be oral where it

has been so far performed that to allow .

its repudiation would be tantamount to —

allowing the commission of a fraud, but

not otherwise. The agreement not. to

partition may be implied as well as.

express; and will be readily implied.

and enforced if such implication proves -

necessary to secure a fulfillment of an

agreement between the cotenants, or if

the granting of partition would destroy

the estate sought to be ne

*-_ * *”

is Nagel.v. Kitchen, 381 Ill. 178, 44 N.E.

2d 853, we find the following pertinent -

language: |

“Defendants contend that s since plain-

tiff joined in the execution of the leases

covering these various properties it

401 PACIFIO REPORTER, 24 oan

amounted to an implied saveniais ta

‘to partition the lands during the périod

of the, Jeases.. An agreement not to

partition need not be expressed and may

be implied. It is settled law that if it.

appears the tenants in: common of a

tract Of. land have formulated plans

and entered into agreements in refer-

ence to th i management. of the common

property and the plans and agreements

are of such a character that to grant

partition would be to destroy the mutual

“ agreement of the parties, then an agree-

ment not to partition will be implied.

Whitaker v.-Scherrer, 313 Ill. 473, 145

N.E. 177. So 9--O*

[7] By the terms of a lease executed by

the Company and Bond as part of the July

. 7, 1951 compromise, | Bond was given full

and exclusive possession of all the lands

owned in common by the two of them for 20

_ years for a nominal consideration of $10.00,

subject only to the.easements conveyed to

the Company for reservoif purposes. That

this ‘ease to. Bond was of considerable

value is evidenced by the fact that he has

since assigned that lease to others for a

rental of $3,000.00 per annum. There was

. ample consideration for Bond’s agreement:

Partition in kind now would destroy that

‘right, and Twin Lakes would have some-

thing different to sell than that for which it

had contracted with Bond. Partition . by

sale would force Twin Lakes to purchase

back those rights in event of sale. The

condition of the title with the lease thereon

would seriously impede the procurance of

competitive bidding in the event of partition

by sale.

It follows from the foregoing that the

judgment of the trial court, decreeing a

partition of the property in dispute, was

erroneous, and it accordingly is reversed.

SCHAUER, J-, not participating.

Petition For Rehearing By Defendant In Error Bond.

(Omitting Title Page)

- Defendant in error Bond petitions the Court for a rehear-

_ -ing herein and states the points overlooked and misapplied

by this Court in its en banc — written by Mr. Justice

- Moore, as follows:

1. The titles to the beds of the Lakes are immaterial and

irrelevant here and now if the two cotenants lost or sus-

pended their rights to partition, by either sale or division in

. kind, by the lease or other transactions, as the opinion of

the Court specifically held; and such part of such opinion’

with reference to such beds was unnecessary, improvident,

advisory and obiter, and should now be withdrawn, and ~

another opinion expressly limited to the effect of the lease

for the remainder of its term substituted, although the par-

tition in kind here was made a subject to the terms

‘of said lease:

2. The opinion is a construction of Acts of Congress

‘‘in which and where is drawn in question the validity’ sad

previous constructions ‘‘of a statute of the United States’’

relating to its patents in violation of previous constructions

thereof by the Supreme Court of the United Statés (Hardin .

vs. Jordan and its numerous descendants), and not hereto-

fore questioned by the courts of the arid western states as

contrary to the riparian rights doctrine under the prior

appropriation principles adopted by those states. The ad-.

ministrative agencies of the United States have followed

the Hardin vs. Jordan doctrine since its piers in issuing -

patents. -

3. The opinion left the title to the beds of the Lites | in

nimbus and undetermined unless the Court meant to hold, —

and it did not specifically so say, that the title thereto re-

‘mains in the United States, notwithstanding the et

rulings of the courts otherwise.

4. The extensions into the Lakes from the meander lines

need not have been ond were not ruled by the trial court to

be perpendicular from said meander Jines, as the opinion

states on page 6, but could have been, and were ruled to be

extensions to ‘the center or thread of Twin Lakes,’’ (J udg-

ment, quoted on page 6 of opinion) ; in other words, in pie-.

- shaped fashion, although some other courts have held that —

such extension, even in a pie-shaped fashion, may be confined

_ to the sections or other legal subdivisions expressly desig-

nated in the patents or conveyances. The latter i is & complete .

answer to the charge of. disparity.

5.' Neither the United States, nor the State’ of Chidiiits,

ae. granted storage rights to‘Twin Lakes and its predecessors

for the storage of water in the upper and lower-lakes,’’ as

incorrectly stated in the opinion on page 7 thereof. Nor did

the letter of the Commissioner of the Land Office state that

‘‘compliance had-been made with the terms of the Federal

« Act of 1891, and that a right-of-way for reservoir purposes

' @ had been earned, by it upon the beds of Twin Lakes”’ as mis-

stated in the opening brief of our epeetiedd on page: 8. (See

Exhibit 23, Folio 1026).

6. The filing of the map in 1896 and the approval of such,

filing on May 18, 1897, as follows: ‘‘ Approved subject ‘to all

valid existing rights,’’ and the later 1923 certificate as fol-

lows: ‘‘The evidence of constructions (upon non-cotenancy

property) is considered satisfactory and the easement (on

public domain only under the 1891 Act) is earned,’’ were

both subsequent to the patents and selections, as well as the

‘Act of 1891, and as.such could not control or affect, by con-

struction or otherwise, the ‘‘valid existing rights’’ already

vested in such pa‘entees, and the State of Colorado. (Our —

_Answer Brief, pages 45 et seq.)

7. The two exceptions to. the general rule of “to the

center or thread’’ doctrine, applied in the cited Fowler case,

was expressly found by the trial court from evidence ad-

duced to be non-existent and not applicable to the facts of

this case, and as such findings of fact are binding upon this.

Court. (Opinion, page 4. J udgment, Par. 9, Fol. 232, Ap-

pendix. ) -

8. The Colorado McIntyre Theatre and the North Caro-

lina Mineral cases, cited in the opinion, are totally inappli-

cable here. Each of these cases involved a sale, and not a par-

tition in kind, as does this case. The plaintiffs in each of the

_ cited eases sought to escape by a sale the obligations of: a

mortgage in the first ease and the obligations of develop-

ment of a mine in the second. J ustice Burke properly said:

‘*It cannot thus escape its obligations.’’ Here, Bond sought

no escape, and Twin Lakes: was assured of an escape in the

event of a restricted sale or use of its particular half of the -

actual patented reservoir area upon the express terms of the

exclusion of such area so sold, or actually used from the

provisions of the lease.

9. It was specifically found here by the Commission as

well as the trial court that partition in kind could ‘‘be made

_ without manifest prejudice to the rights of any interested

party,’”’ and such finding of fact and partition in kind thus

became a finding of fact and as such binding on this Court -

here, and is not separable here and may not be disturbed by

this Court under established law except by a remand with

directions to appoint a new Commission. .

10. The partition here was expressly: subject'to all ease- _

ments including the Dexter and Bond easements and the

easements of the lease which-was ‘‘expressly limited in such

' a way as-to in nowise interfere with the maintenance and

operation of said reservoir for reservoir purposes and

the conveying and storage of transmountain diversion water,

including all * * * dams, structures,’ ete. ( Burgess _—

Exhibit 1). -

11. Water rights are not here involved. Fee title to land

is, An easement to flow or store water doés not of itself .

create a fee title to the land used for that purpose, whether

riparian or otherwise. It is still but an easement for flowage

- or storage and the land owner is entitled to compensation

for such use and easement and may not be deprived of sae

compensation therefor under the Constitution.

‘12. Damage caused by transmountain diversion, as also

here involved, to riparian and other owners is recoverable.

_ (Twin Lakes Reservoir and Canal Company vs. Sill, 104

Colo. 215; 89 P: (2d) 1012). ~

13. The judgment of the trial court did not deprive Twin

Lakes of any of its various ‘‘easement(s)”’ either above or

below the meander line, nor of its ‘‘full enjoyment * * * ‘of

its contractural rights’’ under the 1951 transactions, nor

were they ‘‘minimized or defeated by partition’’ (Opinion,

page 15); ‘‘Bond was given full, (but not necessarily), ex-

clusive possession of all lands owned in common’’ plus other

separately owned Twin Lakes lands. All were subject to all

easements and rights for ‘‘reservoir purposes, ?’ (Opinion,

page 16); ‘‘Partition in-kind now would NOT ‘‘destroy —

those rights,’? nor would Twin Lakes ‘‘have something.

different to sell than that for which it had contracted with

Bond, nor would it force Twin Lakes to purchase back (any

of) those rights in the event of sale,’’ nor would the lease

‘‘impede’’ seriously or otherwise ‘‘the procurance of com-

petitive bidding * * * by sale,’’ which was also not ordered,

(Opinion, page 17). The partition in kind was expressly

‘made subject to those detailed rights as enumerated in the

J udgment (Final) on page 48 of Twin Lakes’ —— to

its 0 opening brief.

14, The ‘principles of fair dealing’’ and “the doctrine |

of estoppel in pais’’ are equally applicable to both parties

here and the opinion announced fails te apply each of them

to Twin Lakes. It misapplied both of them against this’

petitioner to the great profits of the adjudicated trespasser

and to the grievous injury and great damage of petitioner

herein. ~

WHEREFORE, petitioner prays that the original. opinion

be withdrawn and a rehearing granted, and, perhaps, a

re-argument ordered, and that this Court grant the relief

requested by petitioner Bond in his Answer Brief, OR ex-

EN MANORS MRT TiC PN EE RS OT

ENE SON TN ae GE

i bons re)

POT

Peery

Sy gir

pressly. limit the effect of the opinion to this Court’s precise.

_ definition of the exact effect of the lease or other 1951

transactions. | é WE Obsw +

- Davip McCraw. ,.

@ J lhianwo

ue | 7 . Borp~ “<

Attorneys for Petttioner for Rehearing

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