Great Northern Properties v. Extraction Oil and Gas ( 2022 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
September 15, 2022
2022COA110No. 21CA0700, Great Northern v. Extraction Oil & Gas — Real
Property — Quiet Title — Conveyances — Centerline
Presumption — Mineral Estates
The centerline presumption is a common law rule of
conveyance, which generally provides that “a conveyance of land
abutting a road or highway is presumed to carry title to the center
of that roadway to the extent the grantor has an interest therein,
unless a contrary intent appears on the face of the conveyance.”
Asmussen v. U.S., 2013 CO 54, ¶ 15. In this quiet title action, a
division of the court of appeals resolves an issue of first impression
in Colorado: Does the common law centerline presumption apply to
convey the mineral interests beneath a dedicated right-of-way to the
owners of abutting parcels?
Applying settled principles of property law, the division
concludes, as a matter of first impression, that when the centerline
presumption applies, it applies to convey all interests a grantor
possesses in the property underlying a right-of-way, including
mineral interests. The division also clarifies the conditions that
must be met before the centerline presumption applies.
COLORADO COURT OF APPEALS 2022COA110Court of Appeals No. 21CA0700
Weld County District Court No. 19CV30091
Honorable Shannon D. Lyons, Judge
Great Northern Properties, LLLP, a Colorado limited liability limited
partnership,
Plaintiff-Appellant,
v.
Extraction Oil and Gas, Inc., Richmark Energy Partners, LLC, and Richmark
Royalties, LLC,
Defendants-Appellees.
JUDGMENT AFFIRMED IN PART, REVERSED IN PART
AND CASE REMANDED WITH DIRECTIONS
Division IV
Opinion by JUDGE BROWN
Vogt* and Hawthorne*, JJ., concur
Announced September 15, 2022
Witwer, Oldenburg, Barry & Groom, LLP, Patrick M. Groom, Kent A. Naughton,
Greeley, Colorado, for Plaintiff-Appellant
Welborn Sullivan Meck & Tooley, P.C., Joseph C. Pierzchala, Samuel S. Bacon,
Jens Jensen, Denver, Colorado, for Defendant-Appellee
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2021.
¶1 The common law centerline presumption generally provides
that when grantors convey land abutting a right-of-way, they intend
to convey title to the center of the right-of-way, unless the
conveyance reveals a contrary intent. Asmussen v. United States,
2013 CO 54, ¶ 15. In this quiet title action, plaintiff, Great
Northern Properties, LLLP (GNP), and defendant, Extraction Oil and
Gas, Inc. (Extraction), ask us to resolve an issue of first impression
in Colorado: Does the centerline presumption apply to convey the
mineral interests beneath a dedicated right-of-way to the owners of
abutting parcels?
¶2 Applying settled principles of property law, we conclude that,
when the centerline presumption applies, it applies to all interests a
grantor possesses in the property underlying a right-of-way,
including mineral interests. We also clarify the conditions that
must be met before the centerline presumption applies.
¶3 We therefore affirm the district court’s C.R.C.P. 56(h)
determination of law and that part of its final judgment denying
GNP’s quiet title claim. But because the judgment quieted title to
mineral interests beyond those claimed by the two landowner
defendants that had participated in the proceeding, we reverse the
1
judgment and remand to the district court with directions to correct
the decree quieting title and dismiss the case as to the remaining
defendants.
I. Background
¶4 As of February 1974, a real estate developer owned in fee
simple absolute a parcel of land located in the NW ¼ of the NW ¼ of
Section 12, Township 5 North, Range 66 West of the 6th P.M., City
of Greeley, County of Weld, State of Colorado. At some point, the
developer subdivided the property into individual lots.
¶5 On February 15, 1974, the developer dedicated a right-of-way
across its land to the City of Greeley. The City accepted the
dedication on April 16, 1974. The right-of-way became known as
West 11th Street Road (11th Street).
¶6 On March 11 and March 27, 1974, the developer conveyed two
parcels of land abutting 11th Street to two different grantees. The
deeds conveying these parcels describe the property by metes and
bounds but do not reference 11th Street. The deeds do not
expressly reserve to the developer any mineral interests.
¶7 On November 12, 1975, the developer conveyed a third parcel
of land abutting 11th Street. The deed conveying this parcel
2
describes the property by metes and bounds with reference to 11th
Street. This deed does not expressly reserve to the developer any
mineral interests. Once the developer conveyed this third parcel, it
no longer owned any property adjacent to 11th Street.1
¶8 More than forty years later, on January 2, 2019, the developer
conveyed whatever interest it had in the minerals beneath 11th
Street to GNP.2 The same month, GNP brought a C.R.C.P. 105
action to quiet title to the mineral estate under the relevant section
of 11th Street. As we understand the record, Extraction has oil and
gas leases from the owners of all parcels abutting the relevant
section of 11th Street and from GNP. Extraction is therefore
entitled to drill and produce oil and gas from beneath the relevant
portion of 11th Street regardless of who owns the mineral estate,
but ownership dictates to whom Extraction must pay royalties.
¶9 In May 2019, Extraction filed a motion for determination of a
question of law pursuant to C.R.C.P. 56(h) in which it argued that,
1 These three parcels have since been further subdivided and
conveyed to new owners.
2 Neither the developer nor GNP has acquired or reacquired any
mineral interests in any of the parcels abutting the road. GNP does
not claim an interest in the mineral estate beneath those parcels.
3
applying the centerline presumption, the owners of the parcels
abutting 11th Street own the mineral rights beneath 11th Street to
the centerline of the road. After hearing oral argument, in a forty-
nine-page order (the November 2019 Order), the district court
granted the motion and ruled that the developer “conveyed the
mineral estate to the centerline of the roadway if the abutting lot
owners carry their burden of proving” the conditions it discerned
from the Colorado Supreme Court’s decision in Asmussen.
¶ 10 Despite this ruling, GNP filed a motion for summary judgment
asking the district court to enter a final judgment decreeing that it
owns the mineral interests beneath the relevant portion of 11th
Street. Relying on the legal conclusions in its November 2019
Order and the parties’ stipulations regarding the then-current
ownership of the parcels abutting 11th Street, the court denied the
motion and entered final judgment quieting title to the disputed
mineral interests in the two landowner defendants that had
participated in the proceeding.
II. Application of the Centerline Presumption to Mineral Estates
¶ 11 GNP contends that the district court erred by applying the
centerline presumption to conclude that a deed conveying a
4
grantor’s interest in property adjacent to a right-of-way also conveys
any interest the grantor may have in the mineral estate beneath
and to the center of the right-of-way. We disagree.
A. Standard of Review
¶ 12 We review an order granting a motion for a determination of a
question of law de novo, applying the same standard as the district
court. In re Estate of McCreath, 240 P.3d 413, 417 (Colo. App.
2009). “If there is no genuine issue of any material fact necessary
for the determination of the question of law, the court may enter an
order deciding the question.” C.R.C.P. 56(h).
B. When the Centerline Presumption Applies, It Applies to All
Interests a Grantor Possesses in the Property Beneath the
Right-of-Way, Including Mineral Interests
¶ 13 Considering the centerline presumption along with other well-
settled principles of property law, we conclude that, when the
centerline presumption applies (that is, when all preconditions to
its application are met, as discussed in Part II.C, below), it applies
to all interests the grantor possesses in the property underlying the
right-of-way, including mineral interests.
¶ 14 The centerline presumption, a common law rule of
conveyance, provides that “a conveyance of land abutting a road or
5
highway is presumed to carry title to the center of that roadway to
the extent the grantor has an interest therein, unless a contrary
intent appears on the face of the conveyance.” Asmussen, ¶ 3; see
also Skeritt Inv. Co. v. City of Englewood, 79 Colo. 645, 652, 248 P.
6, 9 (1926) (“[W]hen land abuts on a street or highway it is
presumed that the grantor intended by his deed thereof to convey to
the center of such street or highway.”); Overland Mach. Co. v.
Alpenfels, 30 Colo. 163, 170, 69 P. 574, 575 (1902) (“[A] conveyance
of a lot which borders upon a highway presumptively carries the
title to the center of the street, if the grantor owns the land on
which the highway is laid out . . . .”).
¶ 15 The law also presumes that a grantor intends to convey along
with the property all its appurtenant advantages and rights,
Asmussen, ¶ 19, and that a grantor conveying property by deed
intends to convey their entire interest unless a portion of that
interest is expressly excepted from the conveyance, Enerwest, Inc. v.
Dyco Petroleum Corp., 716 P.2d 1130, 1132 (Colo. App. 1986). See
also Overland, 30 Colo. at 170, 69 P. at 575 (“[O]ne is presumed to
convey the highest estate he owns in the lands granted, unless a
smaller estate is described.”); Olin v. Denver & Rio Grande R.R. Co.,
6
25 Colo. 177, 180, 53 P. 454, 455 (1898) (“When there is no
reservation in an absolute deed, the most valuable estate passes of
which the grantor is seised.”).
¶ 16 As to mineral interests specifically, “a conveyance of land by
general description, without any reservation of a mineral interest,
passes title to both the land and the underlying mineral deposits.”
O’Brien v. Vill. Land Co., 794 P.2d 246, 249 (Colo. 1990). The
reservation or exception of a mineral estate severs it from the
surface estate, creating multiple estates in the same land. See
Mitchell v. Espinosa, 125 Colo. 267, 273-74, 243 P.2d 412, 413
(1952); Calvat v. Juhan, 119 Colo. 561, 566, 206 P.2d 600, 603
(1949). The severance of a mineral estate from a surface estate
“must be by clear and distinct wording in the conveyance.” Radke
v. Union Pac. R.R. Co., 138 Colo. 189, 209, 334 P.2d 1077, 1088
(1959). Until such a severance occurs, however, “the ownership of
the surface carries with it the ownership of the underlying
minerals.” Id.¶ 17 Under these fundamental rules of property conveyance, when
a grantor conveys property abutting a right-of-way by deed without
express reservation of the mineral estate, it is presumed that (1) the
7
grantor intends to convey the highest estate owned to the centerline
of the right-of-way, and (2) the highest estate includes both the
surface and the unsevered mineral estate. Thus, the centerline
presumption can apply to mineral estates.
C. Several Conditions Must Be Satisfied before the Centerline
Presumption Applies
¶ 18 In its most recent decision discussing the centerline
presumption, the Colorado Supreme Court explained the
presumption’s purpose and articulated several historical conditions
that must be satisfied before it applies. Asmussen, ¶¶ 15-22, 27-
29. The court explained that the centerline presumption gives effect
to the presumed intent of the grantor both to convey property with
all its appurtenant advantages and rights and to convey the most
valuable estate the grantor possesses, which includes land
underlying a street platted in part for the benefit of the owners of
the adjoining lots. Id. at ¶¶ 17-19. It also recognized that many
courts view the centerline presumption as “an expression of public
policy to avoid ‘a prolific source of litigation’ arising from ‘narrow
strips of land distinct in ownership from the adjoining territory.’”
8
Id. at ¶ 16 (quoting Cuneo v. Champlin Refining Co., 62 P.2d 82, 88
(Okla. 1936)).
¶ 19 To be sure, the centerline presumption applies only when a
grantor conveys property abutting a right-of-way. Id. at ¶ 15. And
it applies only when the grantor owns the land underlying the right-
of-way at the time of the conveyance. Id. at ¶ 21. “This is not only
a logical limitation on the rule, it is a precondition to applying the
presumption.” Id. Because the purpose of the centerline
presumption is to give effect to the presumed intent of the grantor,
“[w]here the grantor does not own the fee of the land, the law will
not presume that he intended to convey that which he did not own.”
Id. (quoting Church v. Stiles, 10 A. 674, 676 (Vt. 1887)).
¶ 20 In addition, because the presumption is a rule of conveyance
intended to effectuate the grantor’s intent not to retain ownership of
narrow strips of land that are of little value to all but adjacent
landowners, Asmussen, ¶ 22, the rule should not apply if the
grantor retains ownership of any property abutting the right-of-way.
If the grantor still owns property contiguous to the right-of-way, it
cannot be said that the property beneath the right-of-way is only
useful (and equally so) to the owners of the adjacent parcels; rather,
9
the land beneath the right-of-way remains beneficial to the grantor.
Cf. Strait v. Savannah Ct. P’ship, 576 S.W. 3d 802, 812 (Tex. App.
2019) (explaining as the reason for the similar “strip-and-gore” rule
that “[w]here it appears that a grantor has conveyed all land owned
by him adjoining a narrow strip of land that has ceased to be of any
benefit or importance to him, the presumption is that the grantor
intended to include such strip in such conveyance”).
¶ 21 In the simplified illustration below, the grantor on the left
originally owned all the land beneath and adjacent to the road and
conveyed away parcel B but retained parcel A. Under such
circumstances, the centerline presumption does not apply, and the
grantor retains any interests in the land beneath the road. In
contrast, the grantor on the right originally owned all the land
beneath and adjacent to the road but conveyed away all the
property it owned abutting the road. Under such circumstances,
the centerline presumption applies to pass title to the new owners
of parcels A and B to the centerline of the road.
10
¶ 22 Importantly, the centerline presumption applies “unless a
contrary intent appears on the face of the conveyance.” Asmussen,
¶ 20. That is, the presumption can be rebutted. For example, the
grantor can state expressly in the deed that the grantee’s title does
not extend to the centerline of an adjacent right-of-way. See Olin,
25 Colo. at 180, 53 P. at 455 (“[T]he general rule [is] that, where a
grantor conveys a parcel of ground bounded by a street, his grantee
takes title to the center of such street . . . unless, by the terms of the
grant, the boundary of the granted premises is restricted to the line of
such street.”) (emphasis added). Conversely, if a grantor legally
defines a parcel in a conveyance as extending to the far side of the
right-of-way boundary (rather than the near side right-of-way
boundary), that may reflect an intent to convey all the property
beneath the right-of-way to a particular grantee, rather than
11
allowing for the presumption that the owners of property on
opposite sides take title to the center of the right-of-way. The
grantor can identify the property underlying the right-of-way as a
separate parcel from the lot being conveyed, see Overland, 30 Colo.
at 173, 69 P. at 576 (“[I]f in that deed . . . mention had been made
of [the] street as a distinct and separate lot from the lots conveyed
. . . , the grant would have been restricted to the side or edge of the
street nearest to those lots, and not extended to its center.”), and
expressly reserve any interest in the right-of-way, see id. at 170, 69
P. at 575 (“[O]ne is presumed to convey the highest estate he owns
in the lands granted, unless a smaller estate is described.”)
(emphasis added). And most relevant to this case, the grantor can
expressly reserve and thereby sever the mineral estate underlying
the right-of-way by “clear and distinct wording in the conveyance”
to that effect. See Radke, 138 Colo. at 209, 334 P.2d at 1088. We
note that these methods are not exhaustive; there may be other
ways a grantor can reflect “on the face of the conveyance” an intent
to avoid application of the centerline presumption. See Asmussen,
¶ 20.
12
¶ 23 Finally, the burden of proving ownership of real property falls
on the person claiming ownership. Id. at ¶ 29. To claim ownership
of property to the centerline of a right-of-way under the centerline
presumption, the adjacent landowner must trace title to the owner
of the fee underlying the right-of-way. Id. “This is because it is
possible that a grantor in that chain of title may have manifested an
intent to convey only the property abutting the right-of-way but not
the interest underlying it.” Id.
¶ 24 In summary, we conclude that the centerline presumption
applies only when (1) the grantor conveys ownership of a parcel of
land abutting a right-of-way; (2) at the time of conveyance, the
grantor owned the fee underlying the right-of-way; (3) the grantor
conveys away all the property they own abutting the right-of-way;
and (4) no contrary intent appears on the face of the conveyance.
Because all these conditions must be satisfied before the centerline
presumption applies, we further clarify that title to the centerline of
the right-of-way passes to the abutting property owners once the
last of these conditions is satisfied. In addition, in any action to
quiet title, the person claiming title to property under the centerline
presumption bears the burden to prove their ownership and must
13
be able to trace title back to the owner of the fee underlying the
right-of-way.
¶ 25 Based on the foregoing, we conclude that the centerline
presumption can apply to convey mineral interests beneath a right-
of-way to the owners of abutting property, so long as the conditions
articulated above have been satisfied. Thus, we affirm the district
court’s order determining this question of law pursuant to C.R.C.P.
56(h).
D. The Conditions for Application of the Centerline Presumption
Have Been Met in this Case
¶ 26 The undisputed facts demonstrate that all the conditions for
application of the centerline presumption have been met in this
case:
(1) The developer conveyed parcels of land abutting 11th
Street to three grantees. GNP contends that because the
developer’s dedication of 11th Street was not accepted by
the city until after the developer had conveyed two of the
adjoining parcels, those parcels did not abut 11th Street
when conveyed. But recall that the centerline
presumption is a rule intended to give effect to the
14
grantor’s intent. There is no question that the developer
intended to dedicate 11th Street before it conveyed any of
the parcels. The developer made the dedication on
February 15, 1974, and conveyed the first of the abutting
parcels on March 11, 1974. Even though the dedication
had not yet been accepted, the developer would have been
estopped from denying the existence of 11th Street as a
public right-of-way as to the grantees. See Overland, 30
Colo. at 171, 69 P. at 576; Near v. Calkins, 946 P.2d 537,
541 (Colo. App. 1997) (“[T]he attempted common law
dedication is not inconsistent with abutting owners
owning to the center of the street.”). Even so, by the time
the developer conveyed away the last of the property it
owned abutting 11th Street, thereby satisfying the last of
the conditions to application of the centerline
presumption, the city had accepted the road dedication.
(2) The developer owned the fee underlying 11th Street at the
time of its conveyance of the abutting parcels to the three
grantees. The parties do not dispute this fact.
15
(3) The developer conveyed away all the property it owned
abutting 11th Street. The parties do not dispute this fact.
(4) No contrary intent appears on the face of the conveyances.
Each deed contains the same language, granting “all of the
following described lot or parcel(s) of land . . . together
with . . . all the estate, right, title, interest, claim, and
demand whatsoever of [the developer].” None of the deeds
contains any express intent to avoid the centerline
presumption, to convey something less than the
developer’s highest estate, or to reserve any interest
whatsoever in the property beneath 11th Street. More
specifically, none of the deeds includes an express
reservation or exception of the mineral estate.
¶ 27 Once the developer conveyed away the third parcel abutting
11th Street, the last of the conditions was satisfied and the grantees
took title to both the mineral estate and whatever interests the
grantor retained in the surface estate, to the centerline of the road.
Because the current owners of the property abutting 11th Street
were able to trace their title back to the developer, they met their
burden to prove their ownership of the disputed mineral interests.
16
E. GNP’s Arguments Against Application of the Centerline
Presumption Are Unavailing
¶ 28 Notwithstanding the fundamental principles of property law
articulated above — which dictate that, when the centerline
presumption applies, it applies to all interests a grantor possesses
in the property underlying a right-of-way — GNP contends that the
centerline presumption should not apply to mineral estates because
(1) applying the presumption violates the axiomatic principle that
an unambiguous deed conveys only the property specifically
described; and (2) the developer made a statutory dedication of 11th
Street, which effected a severance of the mineral estate to which the
presumption does not apply.3 We reject each of these contentions.
1. The Grantor’s Intent Must Be Viewed in the Context of
Well-Established Property Law
¶ 29 GNP contends that the grantor’s intent must be determined
solely from the unambiguous text of the deed and that, in the
absence of ambiguity, there is no need to resort to “judicial
speculation” about the presumed intent of the grantor. It further
3The parties also make competing public policy arguments for and
against application of the centerline presumption, which we need
not resolve to follow settled, binding precedent.
17
contends that, because the deeds in this case unambiguously did
not convey property adjacent to and not included within the parcels
described by metes and bounds, the centerline presumption should
not apply.
¶ 30 We acknowledge the “universally accepted principle of law that
when a deed is unambiguous and unequivocal the intention of the
parties thereto must be determined from the deed itself.” Brown v.
Kirk, 127 Colo. 453, 456, 257 P.2d 1045, 1046 (1953). But the
deed must be interpreted in the context of the existing law. In that
context, a silent deed conveying property abutting a right-of-way is
not ambiguous. Such an absolute deed passes the highest estate to
the centerline of the right-of-way. See Overland, 30 Colo. at 173-
74, 69 P. at 576-77 (explaining that, had the grantor intended to
convey his interests in a street, “he would have stopped after
describing” the parcel abutting the street; instead, because the
grantor described the street separately in the deed, he intended to
sever it and pass it to the grantee as a parcel distinct from the
parcel abutting the street). Under existing law, the deeds in this
case unambiguously conveyed to the three grantees of the parcels
18
abutting 11th Street all the developer’s interest in the property,
including its mineral interests, to the centerline of the road.
¶ 31 Morrissey v. Achziger, 147 Colo. 510, 364 P.2d 187 (1961), on
which GNP relies, does not convince us otherwise. Morrissey
involved a dispute over ownership of land where a street had once
existed but had been abandoned many years earlier. Id. at 511-14,
364 P.2d at 187-89. The court noted that “there can be no dispute
that upon vacation the owners of property abutting [a dedicated
street] take and become the fee owners of that portion abutting
their property and to the center line of the vacated area.” Id. at
513, 364 P.2d at 189. Thus, when the street was vacated in 1937,
the owner of a parcel abutting the street also became the owner of
the land underlying half the vacated road contiguous to that parcel.
Id. at 513-14, 364 P.2d at 189.
¶ 32 In 1946, that owner conveyed to Morrissey the parcel of land
abutting the vacated road without expressly conveying the land
underlying the vacated road. Id. at 512, 364 P.2d at 188. A decade
later, Morrissey conveyed the parcel to the plaintiffs, again without
mention of the land where the vacated road used to be. Id. The
plaintiffs sued to quiet title in themselves to the half of the vacated
19
street contiguous to the parcel Morrissey had conveyed to them. Id.
at 511, 364 P.2d at 187.
¶ 33 The court concluded that, because the deed “drawn
subsequent to the vacation of the street” did not describe the street,
the deed did not convey the street. Id. at 514, 364 P.2d at 189. It
reasoned: “Certainly a person owning contiguous tracts of land can
convey one without conveying the other. A deed which accurately
and correctly describes a tract of land is not subject to construction
or interpretation.” Id.¶ 34 GNP contends that we should apply Morrisey’s rationale to
reject any attempt to expand the centerline presumption to mineral
estates. But Morrissey is distinguishable in several ways. In our
view, the dispositive distinction is that the conveyance in Morrissey
would not have satisfied the conditions that Asmussen clarified are
required (and have always been required) to apply the centerline
presumption. Specifically, the grantor who conveyed to Morrissey
did not convey a parcel of land abutting a right-of-way. See
Asmussen, ¶ 3 (Under the “centerline presumption” “a conveyance
of land abutting a road or highway is presumed to carry title to the
center of that roadway.”) (emphasis added). The road in Morrissey
20
had been vacated before the parcel was conveyed to Morrissey.
Morrissey’s grantor conveyed only the parcel of land, which no
longer abutted a road, and did not convey to Morrissey the land
formerly underlying the road. Under such circumstances, the
centerline presumption would not apply and the unambiguous
language of the deed conveying only the parcel adjacent to the
vacated road would not transfer title to the land that was formerly
part of the road. Morrissey did not limit the scope of the centerline
presumption when it applies.
2. Dedication Does Not Vertically Sever the Mineral Estate
¶ 35 GNP next contends that the developer made a statutory
dedication of 11th Street, which effected a severance of the mineral
estate — both horizontally from the surface estate directly
underlying 11th Street and vertically from the balance of the
surrounding parcel. It further contends that the severed mineral
estate is separate and distinct from the surface estate and is not
presumptively transferred with the abutting lots. GNP's argument
appears to be premised on a distinction that does not exist under
Colorado law between the consequences of a statutory dedication
and a common law dedication. We reject GNP’s contentions.
21
¶ 36 Dedication is “the appropriation of an interest in land by the
owner of such interest to public use.” Turnbaugh v. Chapman, 68
P.3d 570, 572 (Colo. App. 2003) (citing Hand v. Rhodes, 125 Colo.
508, 245 P.2d 292 (1952)). Dedication can occur by common law or
by statute, and “if defective under either method, it may be
operative under the other.” Fortner v. Eldorado Springs Resort Co.,
76 Colo. 106, 112, 230 P. 386, 388 (1924).
¶ 37 Common law dedication requires that (1) the property owner
unequivocally intends to dedicate the property, and (2) the
governmental authority accepts the dedication. Turnbaugh, 68 P.3d
at 572. Common law dedication grants a local government an
easement to use the land for purposes described in the plat. Id. at
573.
¶ 38 Statutory dedication under Colorado law applies only to cities
and towns. Id. at 572. Section 31-23-107, C.R.S. 2021, provides in
relevant part that “[a]ll streets . . . designated or described as for
public use on the map or plat of any city or town . . . are public
property and the fee title thereto vested in such city or town.” See
Martini v. Smith, 42 P.3d 629, 633 (Colo. 2002). The Colorado
Supreme Court has clarified that the legislature’s use of the term
22
“fee” in this statute is “not according to its technical legal meaning”;
instead, the legislature intended “by the use of the term ‘street’ to
vest in the city such estate or interest as is reasonably necessary to
enable it to utilize the surface and so much of the ground
underneath as might be required for laying gas pipes, building
sewers, and other municipal purposes.” City of Leadville v. Bohn
Min. Co., 37 Colo. 248, 253, 86 P. 1038, 1040 (1906) (interpreting
the same relevant language in the predecessor statute and likening
the “fee” to an easement).
¶ 39 Because a statutory dedication grants a fee interest — at least
in the right-of-way and so much of the ground beneath as required
for ordinary use as a street, see id. — title to the right-of-way
passes to the abutting landowners when the right-of-way is vacated.
§ 43-2-302, C.R.S. 2021. Until the right-of-way is vacated, the
owner of the property underlying the right-of-way retains a
reversionary interest in whatever rights have otherwise vested in the
city or town, which interest is capable of being transferred. Olin, 25
Colo. at 181, 53 P. at 456 (explaining that, through statutory
dedication, “the city only acquired a qualified fee in such streets for
these [public] purposes; so that there still remained in the
23
proprietor a reserved right in such streets which was capable of
being transferred by deed to the purchaser of abutting lots as rights
appurtenant thereto”).
¶ 40 Under either dedication scenario, the mineral estate beneath
the right-of-way does not pass to the government but is retained by
the dedicator. See Bohn, 37 Colo. at 252, 86 P. at 1040. Because a
common law dedication conveys only an easement, the dedicator
retains the fee interest in the unified surface and mineral estates.
See City of Denver v. Clements, 3 Colo. 472, 480-81 (1877).
Because a statutory dedication conveys a fee interest only in the
surface estate, however, the mineral estate beneath the right-of-way
is effectively horizontally severed from whatever interest passes to
the city or town and is retained by the dedicator along with a
reversionary interest in the surface estate. See Bohn, 37 Colo. at
252-53, 86 P. at 1040; Olin, 25 Colo. at 181, 53 P. at 456.
¶ 41 But GNP contends that a statutory dedication not only severs
the mineral estate horizontally from the surface estate underlying
the right-of-way, it also severs the mineral estate vertically from the
surrounding property. GNP argues that the severed mineral estate
beneath the right-of-way becomes a separate and independent
24
parcel and should not be transferred presumptively with the
abutting lots. In support of this argument, GNP relies heavily on a
divided Wyoming Supreme Court decision in Town of Moorcroft v.
Lang, 779 P.2d 1180 (Wyo. 1989).
¶ 42 Moorcroft similarly involved a dispute over the ownership of
mineral rights under land dedicated as streets and alleys to the
Town of Moorcroft and the application of what Wyoming calls the
“presumed intent rule.” Id. at 1182. Like the centerline
presumption in Colorado, the presumed intent rule in Wyoming
“holds that a conveyance by a developer of a subdivision lot
includes fee title to not only the lot described, but also to the middle
of the street upon which that lot abuts.” Id. Notably, “[t]he
conveyance includes the mineral estate beneath the lot unless it is
specifically reserved by the grantor.” Id.
¶ 43 As in Colorado, a common law dedication under Wyoming law
does not affect title to the fee but creates a surface easement for the
benefit of the public to use as a public street. Id. As applied to a
common law dedication, the presumed intent rule operates to pass
title to the middle of the adjoining street and includes the entire fee
absent a reservation of the mineral estate. Id. at 1184.
25
¶ 44 Also as in Colorado, a statutory dedication under Wyoming
law vests a public authority with a fee interest “to only the surface
estate and a limited portion below ground sufficient to
accommodate the various public utilities.” Id. at 1183. But
according to the three-justice majority in Moorcroft, a statutory
dedication under Wyoming law creates three separate interests:
(1) “an estate in fee simple determinable in the surface estate
conveyed to the public authority”; (2) the possibility of reverter in
the surface estate; and (3) a separate mineral estate beneath the
street, severed both horizontally from the surface estate and
vertically from the mineral estate of the adjoining property. Id. at
1184. (See Figure 2 below.)
¶ 45 Wyoming dictates that, if the dedicator sells the property
abutting the street, the possibility of reverter passes by operation of
law to the subsequent owners even if not described in the deed. Id.
The Wyoming Supreme Court was asked to decide whether the
severed mineral estate passes to the abutting lot owners in the
same way as the possibility of reverter in the surface estate.
Because, as a general rule, a grantee can acquire only the land
described in a deed, the majority reasoned it would “be creating a
26
special rule of conveyancing” were it to apply the presumed intent
rule to transfer the severed mineral estate. Id. at 1186.
¶ 46 The two dissenting justices acknowledged that a statutory
dedication effects a horizontal severance of the mineral estate from
the surface estate but explained that Wyoming precedent had
rejected the theory that such dedication effects a vertical severance
of the mineral estate underlying the street from the mineral estate
underlying the abutting property. Id. at 1187 (Cardine, C.J.,
dissenting). Instead, statutory dedication “results in a severance of
only the width, depth and length of the property required for the
street. The dedicator still retains the entire remaining estate,
including the complete and undivided mineral estate underlying his
property.” Id.
¶ 47 Chief Justice Cardine explained,
While the conveyance [of land abutting a
street] cannot grant the street area itself
because the fee is held by the municipality,
there is nothing in the record to indicate intent
of the grantor to reserve the mineral estate
under the streets. The intent of the parties at
the time the conveyance is made is not
subsequently altered by the discovery of
valuable minerals. I see no reason to imply a
reservation merely to provide a windfall to the
grantor. A basic principle of conveyancing is
27
that reservations and exceptions must be
expressly spelled out; in the absence of such
language, a conveyance is presumed to
transfer the entire estate owned by the
grantor.
Id. at 1188. He concluded that application of the common law
would result in title to the mineral estate under the street being in
the abutting landowners. Id.
¶ 48 We find the reasoning of the dissent in Moorcroft persuasive
and more consistent with Colorado law than the majority’s
reasoning. Although a statutory dedication conveys a fee interest in
the right-of-way to the city or town in so much of the surface as is
necessary for use of the street and thereby horizontally severs the
mineral estate from that surface interest, nothing in Colorado
statutory or common law suggests that the mineral estate is also
severed vertically from the surrounding property. Rather, upon
dedication, the dedicator retains the entire residual estate beneath
and adjacent to the right-of-way as a contiguous estate, along with
a right to reverter in the interest conveyed to the city or town. (See
Figure 1 below.) Neither a common law dedication nor a statutory
dedication creates a separate mineral estate bounded on its sides
28
by a vertical extension from the edges of the street above. See id. at
1186.
¶ 49 GNP further argues that Colorado’s road vacation statute,
§ 43-2-302, implicitly recognizes the horizontal and vertical
severance of the mineral estate beneath a right-of-way. In relevant
part, that statute provides that, whenever a roadway has been
dedicated and later vacated, “title to the lands included within such
roadway . . . shall vest” in the owners of land abutting the vacated
roadway. Id. GNP argues that, if title to the mineral estate has
already vested in the adjacent property owner under the centerline
presumption, there would be no need for the statute to direct that
title vest in such owner when the road is vacated.
29
¶ 50 But all the municipality receives when a right-of-way is
statutorily dedicated is a fee interest in the right-of-way and so
much of the ground beneath as required for ordinary use as a
street. Bohn, 37 Colo. at 252, 86 P. at 1040. The municipality does
not receive any mineral interests. Id. Logically, then, the only
interest that reverts to and “vests” in the abutting property owners
upon vacation of a dedicated right-of-way is the “qualified fee”
interest that had previously vested in the municipality. See Olin, 25
Colo. at 181, 53 P. at 456. The road vacation statute does not
restrict a grantor’s right to convey any and all remaining interests
in the property surrounding the right-of-way.
¶ 51 In sum, we see no reason to apply the centerline presumption
differently to a common law dedication than to a statutory
dedication.4 And we conclude that the district court correctly
determined that all conditions for application of the centerline
presumption were met in this case, such that title to the mineral
4The district court did not resolve whether the dedication in this
case was a common law or a statutory dedication. Given our
analysis, that fact question is irrelevant.
30
interests beneath 11th Street passed to the owners of the abutting
property.
III. Scope of Decree Quieting Title
¶ 52 GNP contends the district court erred in entering its decree
quieting title by (1) not quieting title to the mineral estate beneath
11th Street in GNP, and (2) quieting title to the entire mineral estate
in the two landowner defendants that had participated in the
proceedings. We reject the first contention but agree with the
second.
¶ 53 Because we have concluded that the district court correctly
applied the centerline presumption to hold that the mineral
interests beneath 11th Street passed to the owners of abutting
property, we likewise conclude that the court did not err by refusing
to quiet title to the mineral estate beneath 11th Street in GNP. See
Hinojos v. Lohmann, 182 P.3d 692, 697 (Colo. App. 2008) (“[T]he
plaintiff may not capitalize on the weakness of the defendant’s claim
to title, but can succeed only by establishing the strength of his or
her own claim to title.”); Morrissey, 147 Colo. at 513, 364 P.2d at
189 (same).
31
¶ 54 Although GNP named as defendants the owners of all the
parcels abutting 11th Street, several of those landowner defendants
defaulted or disclaimed any interest in the subject property. Only
Hospice and Palliative Care of Northern Colorado, Inc. (Hospice) and
Vevest LLC answered the complaint and participated in the
proceedings. The district court quieted title to the entire mineral
estate beneath the relevant section of the right-of-way in these two
entities. This was error.
¶ 55 To facilitate entry of final judgment, the parties submitted a
stipulation that identified the then-current owners of the surface
and mineral estates in each of the nine parcels that abut 11th
Street. It is undisputed that Hospice and Vevest each own just one
of the nine parcels.
¶ 56 The district court could not quiet title to the mineral interests
conveyed with the other seven parcels in either Hospice or Vevest.
But the court also could not quiet title in any non-appearing
landowner defendants. A court cannot quiet title in favor of a
defaulting or disclaiming party, even where evidence presented by
an appearing party supports the defaulting party’s title interests.
Reser v. Aspen Park Ass’n, 727 P.2d 378, 380 (Colo. App. 1986); see
32
also Osborne v. Holford, 40 Colo. App. 365, 368, 575 P.2d 866, 868
(1978) (“[I]f a plaintiff fails to establish his own title, he is in no
position to force non-defaulting defendants to adjudicate the status
of their claims.”). Instead, the court should have quieted title only
to the mineral interests owned by Hospice and Vevest and
dismissed the balance of the action, leaving the other parties in the
same position they were in before GNP commenced this action. See
Osborne, 40 Colo. App. at 368, 575 P.2d at 868. We remand the
case for the court to correct this procedural error.
IV. Disposition
¶ 57 We affirm the district court’s November 2019 Order
determining a question of law. We reverse the district court’s final
judgment and decree quieting title and remand the case with
instructions to enter a new decree quieting title only to the mineral
interests owned by Hospice and Vevest and dismissing the case as
to all other parcels and defendants.
¶ 58 JUDGE VOGT and JUDGE HAWTHORNE concur.
33