Opinion
No. 75-483
Decided December 9, 1976.
In action to quiet title to portions of mining claim lying within city limits, trial court entered judgment for plaintiff, and defendants appealed.
Affirmed
1. QUIETING TITLE — Town Lots — Within Mining Claim — Claim Patented Before City — Mining Claim Title Holder — Prevails — Holder of Quitclaim Deed. In action to quiet title to portions of mining claim overlapping parts of certain platted lots within city limits, since the mining claim was patented in 1869 and had retained its status thereas to the present time and since the patent for the city was granted in 1875 and expressly granted no title to land subject to a valid mining claim, any conveyance of those parts of the town lots over which the claim lies could convey no right, title, or interest in the land within the boundaries of the claim; thus, plaintiff who held title to the mining claim by a treasurer's deed must prevail over defendant who held title to the platted lots by quitclaim deeds and who, prior to his appearance in the quiet title action, had never claimed title to the land within the mining claim.
2. Title of Plaintiff — Cannot Be Questioned — Unless Defendant Shows — — Title in Himself. The defendant in a suit to quiet title cannot question the right of the plaintiff unless he can show title in himself; thus, in an action to quiet title to certain portions of a mining claim, since the defendant had no record interest in the claim and plaintiff's deed was valid on its face and established his ownership of the property as against the defendant, the deficiencies in plaintiff's title asserted by the defendant need not be determined.
Appeal from the District Court of the County of Clear Creek, Honorable Ronald J. Hardesty, Judge.
Jerald J. Devitt, for plaintiff-appellee.
Richard E. Young, Frederick J. Lockhart, Jr., for defendants-appellants.
Defendants, Robert E. Eckels and Richard Eckels, appeal from a judgment quieting title in plaintiff, Orion C. Shockley, to that part of the Burrell Lode Mining Claim, U.S. Survey No. 43, lying within the city limits of Georgetown, Colorado. We affirm.
The property involved is that part of the mining claim which overlaps part of certain platted lots and streets in the Town of Georgetown. Robert Eckels holds title to the platted lots by quitclaim deeds. Plaintiff, Shockley, holds title to the mining claim by a treasurer's deed. Although other defendants and issues were involved in the trial court, the sole issue in this appeal is the determination of plaintiff's claim for a quiet title decree and Eckels' counterclaim for a similar decree.
Only Robert E. Eckels has any record title in the lots, and the two appellants are herein referred to as "Eckels," since Richard Eckels apparently has a beneficial interest in the lots.
The issue was submitted on stipulated facts consisting of 15 documents, which disclose that:
The Burrell Lode Mining Claim was patented in 1869. The patent for the Town of Georgetown was issued in 1875, and stated, "No title shall be hereby acquired . . . to any valid mining claim or possession held under existing laws of Congress."
Prior to 1938, title to the Burrell Lode and to the platted lots, together with other parcels, was in Grant McFerson, State Bank Commissioner. In that year McFerson conveyed the lots and the mining claim to one Connor who, in the same year, conveyed the properties to Ben Grimes. In both of these deeds the town lots and the mining claim were separately described. This was necessary because the mining claim overlaps only part of each lot and also overlaps parts of the platted streets.
By quitclaim deeds dated May 16, 1961, and August 7, 1961, Eckels acquired title to the platted lots. Shockley obtained title to the Burrell Lode Mining Claim by two treasurer's deeds dated July 28, and October 26, 1961. The earlier treasurer's deed conveyed the part within, and the latter the part outside, the city limits of Georgetown.
The pertinent (July) treasurer's deed was issued pursuant to a tax sale for unpaid taxes on the Burrell Lode for the years 1938-1944, during which time the land was assessed to Grant McFerson, even though the deeds conveying title ultimately to Ben Grimes were both recorded in 1938. Although both parties alleged in their pleadings that they were in possession of the land, no evidence relative to possession was introduced at trial.
Eckels asserts that the treasurer's deed was void, and that Shockley has no valid claim because the boundaries of the mining claim can no longer be located, due to the disappearance of the boundary markers, particularly the stone which was the starting point for the survey. Shockley asserts that, since the present action was brought in 1971, Eckels is barred by the statute of limitations from attacking the validity of his treasurer's deed. However, before reaching these issues, we must first determine whether Eckels has any interest in the mining claim. If he does not, he cannot question plaintiff's title. Harrison v. Everett, 135 Colo. 55, 308 P.2d 216.
It is evident from the record that, at least from 1938 to the present, the Burrell Lode and the town lots were separately assessed, just as the two conveyances from McFerson to Ben Grimes listed the lots and the mining claim as separate parcels. Since there were no tax sales on the town lots, it may be assumed that the taxes thereon were paid from 1938 to 1961. The record discloses that Eckels has paid the taxes on the lots from that year to the present, and that Shockley has paid the taxes levied against the Burrell Lode from 1961 to the time of trial.
[1] In view of the fact that the Georgetown patent granted no title to the land subject to a valid mining claim, which would include the Burrell Lode Mining Claim, any conveyance of those parts of the town lots over which the claim lies could convey no right, title, or interest in the land within the boundaries of the claim. The Grimes heirs conveyed title to Eckels only to the town lots, and this conveyance thus included only those parts of the lots not contained within the boundaries of the mining claim.
Further it is apparent from the record that, prior to his appearance in the present suit, Eckels did not claim title to the Burrell Lode. This is evident from two of the stipulated documents. The first is a title insurance policy issued to Eckels on January 27, 1965, which insures title to the town lots (and other land) "EXCEPT that portion thereof lying within the Burrel [sic] Lode Mining Claim, U.S. Survey No. 43." The second document is a decree, entered the same date, in a quiet title action brought by Eckels, in which Shockley was not a party — nor named as a defendant — and which quieted title to Eckels in the town lots, but which also contained the above exception to the land described in the decree.
However, Eckels now bases his claim to the land within the Burrell Lode on the proposition that when title to the platted lots and to the mining claim were held by the same person, the mining claim lost its separate identity. He relies on Reagan v. Dick, 88 Colo. 122, 293 P. 333; however, we find Reagan not controlling here.
There, a part of the mining claim (a mill site) lay within the boundaries of a town at the time of its incorporation. At that time title to the land was not in dispute, and the then owner of the mill site subdivided that portion within the town limits into platted lots. The Supreme Court held that the property lost its classification as a mill site and was thereafter to be taxed as town lots. In the present action the Burrell Lode has never been subdivided by an owner and has retained its status as a mining claim. This right was protected in the Georgetown Patent. Thus Regan is inapposite.
[2] Since Eckels has no record interest in the Burrell Lode Mining Claim, the deficiencies in Shockley's title asserted by Eckels need not be determined. "The defendant in a suit to quiet title cannot question the right of the plaintiff unless he can show title in himself." Harrison v. Everett, supra. The treasurer's deed under which Shockley claims title is valid on its face, established his ownership of the property as against Eckels.
Judgment affirmed.
JUDGE VAN CISE and JUDGE KELLY concur.