Opposition Brief — Bond v. Twin Lakes Reservoir & Canal Co.

; Office-Supreme Court, U.S. |

mayer e FILED

Rbisee Lf a. .

SUYRREME COURT. UL. & | SEP 15 1965.

a

a

JOHN F. DAVIS, CLERK

SUPREME COURT |

_ OF THE UNITED STATES

Ocroser Term, 1965

No...:. 1 Sen ex

EUGENE A. BOND,

Petitioner,

, v. |

_—THE TWIN LAKES RESERVOIR. AND CANAL

- COMPANY, THE CONNECTICUT MUTUAL LIFE

INSURANCE. COMPANY, AND THE COLORADO

iG NATIONAL B BANK OF DENVER

‘ ‘Respondents. . a

_ On Petition for Writ of Certiorari

' to the Supreme Court of Colorado

BRIEF IN OPPOSITION. TO PETITION FOR

WRIT OF CERTIORARI

Evcexe S. Hames |

. 1140’ Denver Club Building

' Denver, Colorado 80202

. and

Raymon J. Con NELL.

oF YEGcE, HAL, TREECE anp Evans

1340 Denver Club Building

Denver, Colorado 80202 :

222-2855 |

Attorneys for Respondents

ee EASTWOOD PRINTING CO. bd 205 LARIMER STREET © DENVER. COLORACO

~ (1893) 152 U.S. 1, 38 L.Ed. 331, °

I BN cicierieitsisdcaseipinccteaencertenges sasengene Rh acee

INDEX

————— PAGE

'- L OPINION BELOW ~................... 2.

II. QUESTIONS PRESENTED ...... 2

A to C, inclusive .....cccccccscccccscsseeeee 2.

Il. ARGUMENT ......................... 3

A. SURESDICTION ..00...ccccccsecostee 3

B. CONSTITUTIONAL QUESTIONS

Se ly | cca 5”

G. PARTITION |... 6

IV. CONCLUSION .......... FE: 6

- CITATIONS |

1. Twin Lakes R. & C. Co. vs. Bond, |

' 401 Pac.2nd 586, 155. Colo. ................

“Not reported 2-1 2

2. Hardin: vs. Jordan | | |

(1891) 140 U.S. 371, 35 L.Ed. 423, eee

I I ia gpecihieiterncicrceries 2,3 °

3. Kaukauna Co. v. Green Bay & c. Canal —

(1891) 142 U.S. 254, 35. L.Ed. 1004,

12 S.Ct. 173 opesceeeececassceceesccesseseceoeess 3

4, Shively v. Bowlby

. INDEX (coytivzp)

PAGE

. Eldridge v. Trezevant

"~~ (1895) 160 U.S. 452, 40 L.Ed. 490,

16 8.Ct. 345 | oiitelinnside 3

4 Smith v. Town of Fowler )

138 Colo. 359, 333 P.2d 1084 occa 4

. Producers Oil Co. v. Hanzen _9

(1915) 238 U.S. 325, 59 L.Ed. 1330,

i ef |

. United States v. Elliot i.

(10th Cir. 1921) «131 F.2d 720 ooo ececcccccssssseesceeee awe (8

—

3

w

a t |

SUPREME COURT

_ OF THE UNITED ST ATES

| OcrToBER Tzeo, 1965

EUGENE A. BOND,

Petitioner,

; Vv. ;

THE TWIN LAKES RESERVOIR AND CANAL .

COMPANY, THE CONNECTICUT MUTUAL LIFE

INSURANCE COMPANY, AND THE COLORADO .

NATIONAL BANK OF ee

Respondents.

On Petition for Writ of Certiorari

to the Supreme Court of Colorado

BRIEF IN OPPOSITION TO PETITION FOR

se OF CERTIORARI

The Twin ide Reservoir and Canal Coaipiia: The

Connecticut Mutual Life Insurance Company, and The

Colorado National Bank of Denver, as respondents herein,

respectfully submit the following brief in opposition to

the Petitioner’s Petition for Writ of Certiorari directed

to the Supreme Court of the State of Colorado:

2

2

L ‘OPINION BELOW

' The official report of the opinion delivered by the

Supreme Court of the State of Colorado in this matter

_ has been copied verbatim in the petitioner’s brief and is

reported in 155 Colo. ................ , Colorado Advance Sheets

for April 5, 1965, Vol. 17, No. ‘12, Pg. 210; 401 P.2d 586.

*

IL QUESTIONS PRESENTED

ma The ‘ostlieiee in his brief. ain that the Su-

preme Court of the United States has jurisdiction in this

matter by virtue of the fact that the Supreme: Court of

the State of Colorado failed to follow the decision of the

case of Hardin v. Jordan (1891) 140 US. 371, 35 ‘L.Ed.

423, 11 S.Ct. 808

B. The second argument presented by the petitioner

is that this case involves the due process of law provisions

of the Fifth Amendment to the Constitution of the United

States and Section 1 of the Fourteenth Amendment tothe

Constitution of the United States.

C. .The third argument submitted: by the petitionsr

herein is that the State of Colorado does not have the

power to grant or deny partition between equal co-tenants

on property within the territorial limits of the State of

Colorade. :

pe Nimes Sod nie ee a ~ 2. : eee > scadphigiiest yaw

— SS +

3.

II. ARGUMENT

- JURISDICTION

* It is the contention of the respondents herein that

none of the issues as stated by the petitioner set forth an

issue which would invoke: the jurisdiction of the: United

States Supreme Court.

The main contention of the petitioner herein i in his

argument is that the Supreme Court of the State of Colo-

rado failed to follow the decision of Hardin v. Jordan

(1891) 140 U.S. 371, 33 L.Ed. 423, 11 S.Ct. 808. In that

case the Supreme Court of the United States -held:

‘3. Grants of the government for lands bounded

on streams and other waters, without any reservation

or restriction of ‘terms, are to be construed as to their

effect according to the law of the State in which the

. lands lie.’’ : "

Following the decision in Hardin -v. Jordan, it has been

well settled by this Court that questions relating to con-

struction of grants for lands bounded by streams or other

_ waters are to be determined by the law of: the state in

which the land is located. Kaukauna Co. v. Green Bay &

‘¢.Canal (1891) 142 U.S. 254, 35 L.Ed. 1004, 12 S.Ct. 173;

Shively v. Bowlby (1893) 152 U.S. 1, 38 L.Ed. 331, 14

S.Ct. 548; Eldridge v. T rezevant,. oo 160 US. siete |

40 L.Ed. 490, 16 S.Ct. 345.

It is the contention of the respondents herein that the

Supreme Court of the State of Colorado did exactly what

the decision in Hardin v. Jordun depicted ;. that this is a

matter which the State should determine and they did 80

- 4

determine. in accordance with Colorado law by their deci-

sion in the instant case. Justice Moore of the Colorado

‘Supreme Court in his decision determined that under the

evidence inthis particular case that for.a period of over

‘ sixty years the predecessors in title to the petitioner

herein had construed and utilized the meander line, as °

indicated by the official government survey as the bound-

ary line. This conclusion of the Colorado Supreme Court

was premised on established Colorado law as set forth in

Smith v. Town of Fowler, 138 Colo. 359, 333 P.2d 1034,

“a supported hy evidence depicting the following:

1)\ “The government survey meandered two lakes

and fractional lots on all sides of those lakes

and in between the lakes.’’

2) ‘Each lot. shown on the survey deaiipniiten

- and discloses the acreage contained therein.’’

3) ‘‘The patents to the lands bordering on and

all the way around and between both of the Twin

Lakes refér to the land and convey. the same by lot

numbers according to the official survey, and in every

case the lot as numbered on the survey discloses the

acreage of each lot.’’

4) ‘*The difference between the acr eage as shawn

on the lots and the acr eages claimed by. Bond are very

material.’’ - : . :

5d) ‘*The ‘increase in acreage, if ownership is

carried to the center of the lake or to the ‘thread of

the stream,’ is so great as to negate the claim.’’ |

6) ‘*For over sixty years no grantee in any

patent or any successor in interest claimed interest

or ownership in any: portion of the land under. the

water of Twin Lakes.’’

2 aan ip cane on i AES Teo PE Sa gpa Liew

OO A OG RG CO RN i a ee ee

ARM: iesias Brats sie ETOP AL RMT NOR A PORE FSA EPR RPE PG 1

i tegmental ts ata a ane Hi

ia is

Petitioner, in his argument, does not really dispute |

that the Colorado Supreme Court failed to follow State

law. He merely wishes that. the Supreme Court would

have come to a different decision than it did.

‘The Supreme Court of the. United ‘States and -the ©

federal circuit courts have long ‘acknow ledged “the rule that

under a given factual situation the meander line is in fact

- the boundary line. Producers Oil Co. v. Hanzen (1915) 238

US. 325, 59 L.Ed. 1330, 35 S.Ct. 755; United States wy

Eliot, (10th Cir. 1921) 131 F.2d 720. Coe

It would . difficut ‘iteid if not impossible, to re-

concile the petitioner’s argument that the Colorado Su-

preme Court would - jeopardize and confuse all of the

- United States patents heretofore issued in consideration

of the cases cited. The absurdity of: this argument is in

itself sufficient answer by the eee

}5. CONSTITU TIONAL QUESTIONS INVOLVED

om

“The wetness claims that this case ucaives the due _

process of law provisions of the Fifth Amendment, to the

Constitution of the United States and Section 1 of the

Fourteenth Amendment to the Constitution of the United.

States relating to’ the deprivation and taking the private

propérty without due process of law. He neglects to make

any argument in connection therewith or to cite any au--

thorities to support his particular position. It is hard to’

conceive. why. the ‘petitioner, who is also an attorney, and

who felt he had not been allowed due process of law,

would not state forth the specifie objections and support

them by competent evidence and argument. Both are lack- .

_ ing in this. particular petition. We, therefore, submit that |

this particular contention is completely ‘withent merit ii

_ certainly does not involve a situation that would justify

the Supreme Court of the- United . States granting

certiorari.

C. PARTITION ,

The third point the petitioner claims is significant to

cause this Court to granf his Writ of Certiorari is the

"failure of the Supreme Court of Colorado to grant parti- .

tion in this particular case. We can think of no situation

that would be further’ from a federal issue than the ques-

tion between equal co-tenants as to whether or not parti-

tion will lie under the facts of a particular instance, ‘and

particularly where there is a statute controlling that par-

ticular conduct. In the instant case the petitioner herein

filed suit against the Twin Lakes Reservoir and Canal

Company as co-tenant, seeking partition of certain prop-

~ erties located in Lake County, Colorado. The action was

commenced pursuant to State statute governing the’ same.

and the decision of. the Supreme Court of Colorado is in

relation thereto and in conformance with the decisions

of that Supreme Court in other matters concerning parti-

tion that have pr eviously neve before. it.

IV. CONCLUSION

The ‘respondents herewith, respectfully submit that in

accordance with the Rules of the Supreme Court of the -

‘United States, review of a Writ of- Certiorari is not a

- matter of right but a matter of sound judicial discretion —

of this Court and should be granted only when there are

special or important reasons therefor. It\is ‘submitted - by

the respondents that the decision of the Supreme Court

RLY FREI - SREB OTe TI OPES PEIN PNT EEE FORE PRT LEY &

ae ae os yee re = —— ~

Om

of the State of Colorado in no way has decided a federal oe

question of substance not heretofore determined nor has .

decided it in-a way contrary with the applicable decisions — :

of the State, nor does it deprive the petitioner herein of

any ‘of the protections or rights guaranteed’ to him by

the Constitution’ of the. United States; the laws of the ,

United States, or the decisions of the Supreme Court of. te

the United States. For these reasons and the reasons and

authorities cited herein, the respondents request that the

Petition for Writ of Certiorari be denied. ©

Respectfully submitted, °

te Evcene S. Hames |

1140 Denver Club Building

Denver, Colorado 80202 —

i : kes | and

Raymonp J. CONNELL

or Yecce, Hatt, Treece anp Evans |

1340 Denver Club Building

Denver, Colorado 80202 @

_ 222-2855 - |

‘Attorneys for: Respondents *

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IN THE . “

"Supreme Court of the Anited States

Evcene A. Bonp |,

Petitioner

vs.

¥

THE i Lakes Ruenweniia AND CaNaL Cosunsary; Tue

ce Mvrvat Lire Insurance Company, aNp -

. THe Cotonano NationaL Bank oF Denver,

——— . Gg

ON PETITION FOR WRIT OF CERTIORARI‘

_ TO THE SUPREME COURT OF COLORADO

REPLY TO BRIEF IN OPPOSITION TO

RaEEF ION FOR WRIT, OF CERTIORARI -

>W. Davm McCrain

Epwin A. WiitiaMs

Evcene A. Bonn

Attorneys for Petitioner

250 Equitable Building

Denver, Colorado 80202 :

303-222-1731 CB Aisle eS Ne Sees

INDEX

oo is cae eds soe Page

i | QUESTIONS PRESENTED .0.600,esycle00 J

II. HARDIN vs. JORDAN ./........ suisse ae

I. FIFTH AND FOURTEENTH ae

AMENDMENTS stbwesseawes ny Peters re

i BOI oo. ci eyed

V. RESPONDENTS’ CITAPIONS .......:...0003 5

VL CONCLUSION, ae als Mew Riciicic: &

CITATIONS ~ e |

1. Hardin vs. Jordon, (1891) |

' © 140 US. 871, 35 L.Ed. 493, 0 te

11S. Ct. 808. ...... eaeees sound vekwers 1,345

2. &K Kankauna Water. tie 7 |

= Co. vs. Green Bay Company,

~ . (1891) 142 U.S. 254, 35 L. Hd. fa

et ee nein eee oe Vivkek ee

3. Smith ‘vs: Town of Fowler,

(1959) 138 Colo. 359, 333

P, (2d) 208A. . 2... seeps ee. earned: 6

_ as Ratan oll Oebedts ve, ia *

~ + 120 Til. 509, 9‘ West Rep. ae ecedececcccces, &

oe Soper g er re :

es

(Se AN” THE

-_ Supreme Court bf ~ Bute States

Wig ass ° No. 451

Sota s 4 Evcensz A. Bonn

Sy. te. ue ) Petitioner’

| vs.

Tue Twin Lakes REsERVIOR AND CanaL Cisieaity, Tae

_ Connecticut Murvau Lire INSURANCE Company, AND

Tue Cororapo Nationa Bank oF DENVER;

aries

_ ON PETITION FOR WRIT OF CERTIORARI’ _

| TO THE SUPREME COURT OF COLORADO %

—— 4

REPLY TO ‘BRIEF IN OPPOSITION. TO

PETITION FOR WRIT OF CERTIORARI

Engene A. Bond, petitioner, respectfally submits this Re-

. ply to the Brief in a to his i for Writ of

Certiorari. : |

uel iL i

Questions. Presented”

ing: subjects : A

“i's 1 Hardie, va: Jordan.

“Respondents have limited their argument ‘ the — e :

fF

"9 he Fifth and Fourteenth Amendments

to the. Constitution. :

3. ‘Partition

They have nine all other questions. No refarenie was

° “made to our third item, designated 3. (c) (iii) on page 3 of

eur Petition. Among such other questions and included in

the mentioned item (i) is:

| Does the Colorado. Supreme Court opinion become

res judicata, as between the co-tenants on the ques-

tion of ownership of the beds ‘of the lakes -in the ab-

sence of the United States as a party, and the like

absence of the State of Colorado at the time the beds

of the lake aed was first presented? -|

We think not,

If ssiltlais did not lie at the time of the commencement

of the suit and does not lie until the expiration of the lease, —

as the opinion expressly held, then, it was unnecessary, and ~

presumptious for that Court. to concern itself with the .

‘ownership of the beds of the lakes in that opinion. That

Court should have either dismissed the partition suit, or

reversed the judgment of the lower court for that reason,

alone, instead of going on an unnecessary excursion and

expedition to the bottom of the lakes. We think this court ©

should NOW declare that part of that opinion NOT to be

: : Tes judicata, as well as reverse that particular part of the.

Colorado — on the beds of the lakes. -

The petitioner, being ‘unclear and in serious doubt shout

_the effect of such opinion, deemed it necessary to present

this matter to this Court in this proceeding for fear re-

- spondents would later urge; in an imminent condemnation

: . suit by the United States, that the ownership of the beds!

the lakes is res judicata as. between the two co-tenants ~

‘reason of the opinion at the Colorado ee Court in ©

et 3

a

pe ei

fa?

7

De

So 3 aay . . 3

| ae

this case, For that reason, our Petition for Certiorari be-

2 came more — ; eles

ii

‘Hardin vs. Jordan : 7 ye. 6

We think that the above case was fully covered in the

Petition and. that the respondents’ brief added sieittiadl 7

thereto. >

»

, Kt must be temembered that ties vs. J ontale had. been

recognized.as law in Colorado in several Colorado Supreme

Court cases and,j#s such was the law of this.state at the

_ time the paten¢fand grants were issued. Title to these lake

- beds was vested by these patents and grants under ‘Acts of

Congress. The later right of way, claimed by Twin Lakes

Company, was: expressly made ‘‘subject to all valid exist-

ing .rights’’, meaning the patents here involved. The high-

-est court of this state may not change the facts or the law

with reference to vested rights. under the guise ofa self-

made and non-existent exception to the Hardin-Jordan

-Rule and in the face of and against the express findings of

_ the trial court made upon evidence before it. The trial court .

in this case made findings on: the only exceptions to the -

Hardin-Jordan Rule recognized by this court. Those ex-.

ceptions are (1) a resérvation of rights or title. in the

»

United States or-the State of. Colorado in the patent it- —

self, or in the deed of the grantor, and/or (2) an intention .

to use the original meander line as a boundary line ex-

pressed or implied in the patent or grant. See Final Judg- gh

- ment quoted as Item 9 at the top,of page 11 of our Petition: »

. The findings apply to all later conveyances of the co-tenancy ©

property. See quoted items of the same Final Lio ‘s

in our Petition.

The so-called exceptions relied “upon — the Colorado

Supreme Court did not exist'as a matter of fact, until they

were created by the. strong arm and multitude ‘of judges

in the mentioned opinion. The law of Colorado was and is

the common law of — as ad to lake beds sis

He soe Oe: :

ars we OO «