City of Denver v. Denver & Santa Fe Railway Co.

Mr. Justice Elliott delivered the opinion of the court.' It was about the first of January, 1882,'when the Denver Circle Railroad was first constructed and operated through what was then called Bridger street in the town-site of Fairmont. Said town-site was not then within the limits of any city or other municipal corporation; it was a small parcel of land, only forty acres, situate in Arapahoe county, Colorado ; it had no inhabitants or buildings; it was a town only on paper. The strip of land called Bridger street at that time, though formally dedicated to the public by the owners as a public highway, had never, in any manner, either express or implied, been accepted or recognized by the public authorities as a public highway, nor had it ever been used as such by the traveling public; it was simply “ wild prairie.” So far as the evidence discloses, Fairmont continued to be a paper town only, without municipal organization, without inhabitants or buildings, and said Bridger street continued to be unused and unaccepted as a highway, until after the territory composing said town-site was included in the enlarged limits of the city of Denver by act of the general assembly of February 13, 1883. In fact, it does not appear in the record of this cause when or how Bridger street, so called, first became a public street or highway, nor when its name was changed to West Third avenue.' To constitute a road a public highway at common law there must be both a dedication and an acceptance, either express or implied. Unless otherwise provided by statute, a dedication without acceptance is, in law, merely an offer to dedicate, and such offer does not impose any burden, nor confer any right, upon the public authorities, unless the road is [586] accepted by them as a highway, though if used by the public and treated by the public authorities as a highway, acceptance of the dedication maybe implied. Field v. Manchester, 32 Mich. 279; Manderschid v. Dubuque, 29 Ia. 73; Holmes v. Jersey City, 12 N. J. Eq. 297; Hayden v. Stone, 112 Mass. 351; Grube v. Nichols, 36 Ills. 92; Town of Salida v. McKinna, 16 Colo. 523; Starr v. The People, ante, p. 458; Angell on Highways, secs. 132, 157; Elliott on Roads and Streets, 87. It clearly appears that the Circle railroad company constructed and operated its road through Bridger street long before the same became a public street or. highway, either in law or in fact, and while the same was without the limits of the city of Denver. Furthermore, it is clearly established that when the road was so constructed the strip of land called Bridger street belonged to the Denver Land and Improvement Company, a private corporation, and the road-was constructed thereon by the consent of that company. Though the record of such consent seems not to have been preserved, it was nevertheless satisfactorily proved at the trial that the railroad company obtained possession of said land as a right of way by the voluntary action of the Improvement Company, and so its possession was not unlawful. Under such circumstances, the subsequent annexation to the city of the land of which the railroad company was so lawfully possessed did not render the company’s possession unlawful; neither did the subsequent acceptance of said Bridger street as a public highway, nor the changing of the name of said street, render the occupation and possession of said street by said company a nuisance subject to be abated by mere resolution of the city council. City of Denver v. Mullen, 7 Colo. 345; Omaha & N. N. Ry. Co. v. Reddick, 16 Neb. 313. It is established by the evidence that the Circle railroad company and its successors continued in the peaceable, undisputed possession of the railroad constructed through the town-site of Fairmont, and continued to operate the same from the date of its construction for a period of six and a half years before any objection to their so doing was made, [587] and before notice was given to remove the railroad therefrom. There is no claim that there has ever been any special fault or negligence in the manner of operating said railroad at said place. Under all the circumstances, it is clear that the city of Denver could not lawfully proceed, upon its own motion, to tear up and remove said railroad as it threatened to do. The injunction was therefore properly granted. The judgment of the superior court is affirmed. . Affirmed.