Cofield v. McClelland

APPEAL from the Supreme Court for the Territory of Colorado; the case being thus:

The city of Denver, which is in the couty of Arapahoe, Colorado Territory, was originally laid out by a company or association of persons, on the public domain of the United States, before the same had been surveyed and became subject to entry. And the company was aided by the privileges of pre-emption, at the minimum price, being secured to settlers and occupants of lots by the general enactment of May 23d, 1844, 'for the relief of the citizens of the towns upon the lands of the United States under certain circumstances,' and by a special enactment 'for the relief of the citizens of Denver,' of the 28th of May, 1864, whereby the probate judge of the county was constituted a trustee to enter the land selected for the site of the town, when the same became subject to entry, and to pass the legal title to the settlers and occupants of lots, under rules and regulations prescribed by the legislative authority of the Territory of Colorado.

These acts being in force, the probate judge of Arapahoe County having, on the 6th of May, 1865, entered the town site under the acts referred to, on the 10th of May, 1865, and in accordance with the directions of a Territorial act of Colorado, of March 11th, 1864, advertised for four weeks thereafter in a weekly newspaper published at Denver (though whether also by posting notices in three public places in the town, which a Territorial act of Colorado required, did not appear, the judge himself being dead), the fact that he had made the said entry, and that all claimants of lots in the town should within ninety days present their claims to him.

Mrs. Louisa McClelland, then, as the evidence in the case went strongly to show, in occupation of lot No. 6, block 69, in Denver, and who had erected valuable improvements on it, and was then paying taxes upon it-all without apparent knowledge of any counter claim-accordingly presented her claim for the said lot, and there being no counter claim made to it by any one, the probate judge, on the 11th of August, 1865, conveyed the said lot to her. She being thus in possession, one Cofield, in April, 1869, filed a bill against her to compel a conveyance to him. The bill alleged an equitable title to the lot in the complainant by the occupation and possession; a prior settlement, to wit, by a certain Preston, in 1859, a conveyance by Preston to one Hall, and after several intermediate conveyances, by which the lot came to one Bates, a conveyance by Bates to the complainant in 1869.

The court below having dismissed the bill, the complainant took this appeal.

Mr. J. M. Woolworth, for the appellant; Messrs. Bartley and Casey, contra.

Mr. Justice HUNT delivered the opinion of the court.