that their interest should be one-half the lots | over the objections of the respondents, esmeasured eastward from the side line of the tablished this line and caused a fence to be street, while defendants contend that this erected on said line, paying for the matemeasurement should be from the center of rial and labor therefor. That said fence the street. The conveyances in each case be- still stands as marking the boundary between ing for "the west half" of the given lot and said tracts as established by said Smith on for the "east half" of such lot. The trial the 2d day of May, 1911, from said date; court sustained the contention of defendants said petitioners having been in possession of and fixed the dividing line midway between said strip of land. That on the 11th day of the center of the street and the east end line April, 1912, Irving B. Williams was employof the lots. ed by said respondents and established the line sixteen and one-half (162) feet west of the said Smith's survey line marked by said fence. That on the 15th day of April respondents served petitioners with a notice to the effect that, if petitioners did not willingly join with the respondents in building a fence or moving the old one to the new line established by said Williams, within three days they would proceed to do so. In consequence of said notice, petitioners proceeded to bring the action herein.” There was a further stipulation of the parties as to certain acts and conduct as follows: "That a survey of said tracts one (1) and two (2) was made by one Charles C. Smith, and a survey was made by Irving B. Williams, as stated in said petition; and that upon said survey there is a dispute as to the location of the line between the west half and the east half of said lots one (1) and two (2), the distance between said surveys being one (1) rod or sixteen and onehalf (162) feet, thereby leaving a strip of land 161⁄2 feet wide and forty (40) rods long between said surveys which the petitioners and respondents, each respectively, claim to own and be entitled to by virtue of the plat and the conveyances as aforesaid. That both of said surveys agree as to the location of the center of said Center street, as to the four (4) corners of said tracts one (1) and two (2), Smith's subdivision. That said Center street has been opened and used by the public for a long time prior to the purchase of the respective interests of these litigants, and is still used as a public highway to accommodate the owners of tracts further north than tracts one (1) and two (2) That some time prior to the purchase by the respondents of the east half of said tracts one (1) and two (2), as alleged in the petition, their grantor, one John Robb, caused a survey of said tracts one (1) and two (2) to be made by one Cawkins in the presence of Henry McDonald, one of the petitioners, and that Cawkins established the division line between the tracts of petitioners and respondents twenty (20) rods east of the center of the said Center street, and at virtually the same place as established and located in April, 1912, by Irving B. Williams, as stated in the petition. That thereafter a furrow was ploughed by said Robb and one William Bruce, said furrow or plough line endeavoring to follow the line as established by said Cawkins. That said furrow or ditch was in existence at the time respondents purchased the east half of said tracts one (1) and two (2), and that respondents exercised ⚫ownership and possession over all the land east of said ditch or plough line until about the 2d day of May, 1911, at which time petitioners secured the services of Charles C. Smith and established a new line sixteen and one-half feet east of the aforesaid ditch line, established by said Cawkins, which practically agrees with the line established by the said Williams. That the petitioners, There does not appear to be sufficient in this agreed statement of fact upon which to base an estoppel as to the claims of either party or to throw light upon the matter to be determined. The plat filed shows the boundary of the several lots to exclude the street. While the east line of the platted tract is a part of the east section line of section 34, yet there is nothing in the record to indicate that this line is upon a highway, or that any part of the east end of the lots in question is used for highway purposes, as in case of the west end and where two rods therefrom, before the sale of any of the lots by Smith, were so dedicated to the use of the public for highway purposes, being one-half of the width of Center street. What is said in this opinion is with the understanding that no part of the east half of the lots are or have been dedicated or used for highway purposes. It will be observed from the agreed statement that Center street is in general use for public purposes. [1] It has been held to be a general rule that, where land is described in a deed of conveyance according to a certain plat or map, the deed is to be construed in connection with such plat or map for the purpose of identifying the property intended to be conveyed, although this does not exclude other means of identification, not in conflict with the map. Kretschmer v. Hard, 18 Colo. 223, 32 Pac. 418. [2, 3] There is no testimony in this respect offered, other than the statement of Smith filed therewith, and above set out, and such statement is clearly not in conflict with the map, for it declares the street so platted on the map is reserved to the use of the public forever. It is, however, contended that the last sentence of this statement, "Said measurements running from the center of said street, but the above-described roadway being reserved for the said use forever," is in conflict with the map and fixes the measurement by which the lots are to be conveyed. We cannot agree to this contention, for in this sentence is found an additional and specific reservation to the public of the described and platted roadway or street. But if it be said that this statement is in conflict with the map, then, under the authority cited, the map must govern. This statement clearly shows the intent to dedicate the street to the public, and the map or plat shows the lots to be no part of the street so dedicated. It is reasonable to assume that Smith, in a sale of the lots, did not, and did not intend to, sell any part of the street, but only the lot or lots as platted. It is likewise reasonable to assume that the grantees in such cases could have no other or different understanding. We must therefore conclude that, when the plaintiffs and their grantors purchased the west half of these lots, the purchase was for such part of the lots as is described by the plat, and did not include one-half of the width of the street. tract of land laid out in lots or blocks and whether the same be within the limits of any municipal corporation or not shall be vacated, the fee of the lands included within such street or alley, or so much thereof as may be vacated, and all right, title or interest of the state or the inhabitants thereof, or of such municipal corporation, shall be deemed and taken to vest in the proprietors of the abutting lots, and parts of lots, each abutting owner taking to the center of the street or alley or to the extent that the street or alley may be vacated." Under this statute there can be no question but that, when the street so platted in this case shall be vacated, if such vacation shall ever occur, then the title to the land occupied thereby shall be vested in the abutting owners, and not in the original grantor. It does not necessarily follow that, in case of a sale of the half of a lot abutting on the street prior to the time such vacation is made or contemplated, measurement thereof should be made from the center of the street. The right of reversion is solely a contingent one, based upon the happening of the vacation of the street, and, until the fact of vacation occurs, the abutting owner can have no title to any part of the street. Until such time the use and title is in or reserved to the pub [4] Counsel for defendants in error cite many authorities in suport of the well-established principle that a grant or conveyance of land described as bounded by a highway or street will be construed to mean the middle of such highway or street, unless such construction is contradicted either expressly or by necessary implication. But they over-lic. It would be, therefore, manifestly unjust to look the fact in this case that the tracts are not so described and the further fact that such construction is at least contradicted by necessary implication. The description is for one-half of the lot, described only by num ber. say, in a case of the equal division of a lot, one end of which abuts on the street, that the one who purchased such abutting end shall be held to include, as a part of his moiety, that portion of the street which may or may not fall to him, dependent solely upon the vacation of the street; while the one purchasing that half not so abutting should have title with exclusive private use and occupancy to an amount of land greater and to the extent of one-half of that part of the street than may fall to the abutting owner The reason for the rule of law just stated is that the adjacent proprietor is prima facie owner of the soil, subject to the easement in favor of the public, and this upon the presumption that the ground was originally taken from the adjoining owners, and for the sole purpose of being used as a thorough-in case of vacation. fare. The rule is, however, qualified by the exception that, where the title to a street is in the government or municipality, a deed of land bounded by such street will carry title only to the line and not to the center of the street; and where the grantor is a corporation, holding a street for public purposes and disposing of the adjacent lots for private use, the boundary of the private property by that held for public purposes will be the dividing line between the two, the same as when one lot is bounded by another. 5 Cyc. 907. So that in this case, whether the title to the street by the dedication was in the county, or whether it was "reserved forever" for public purposes, it was clearly not conveyed by the deeds of Smith. By section 7221, Mills' Ann. Stat. 1912, it is provided: "Whenever any street or alley designated on the plat of any city or town, or any lands laid out as the site of any city, town, or village, or addition to, or subdivi This view is sustained by the very similar case of Fraser v. Ott, 95 Cal. 661, 30 Pac. 793. In the case of Burbach v. Schweinler, 56 Wis. 386, 14 N. W. 449, it is said: “By the description of the premises according to the plat, the alley which appears thereon, and which may fall within the metes and bounds of the premises described, is necessarily excluded from the grant and the covenants of the deeds, and it would make no difference whether by the law, at the time the plat was made, the alley was a mere public easement, or the fee-simple title to the land was vested in the county or any other body or person for the public. Whatever the alley was by the plat, that is excluded." In the case of Wetmore v. Story, 22 Barb. (N. Y.) 414, an injunction was asked by the owners of certain lots to enjoin the construction of railway tracks in the street upon which such lots abutted, and the right to maintain such private action was based on the claim of title to the land occupied by the [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. 88 127, 128, 130-133; Dec. Dig. § 48.*] ownership of the lots in question. Uponing, does not render it so invalid that the manthis point the court said: "In cities, the ner of submission deprived the voters of lawfulpristine or (if there be any such) the existing ly exercising their right of franchise. owners of the strata of the streets cannot exercise any acts of possession, for their individual benefit, over the devoted soil. The many uses to which it may be appropriated preclude that. They have not, therefore, any possession which can raise a presumption of title." The judgment is reversed, with instruction to the court to establish a boundary line as between the plaintiffs and defendants, midway between the east and west boundaries of lots 1 and 2, and exclusive of the street. MUSSER, C. J., and GARRIGUES, J., concurring. (56 Colo. 17) PEOPLE ex rel. MOORE v. PERKINS et al. (Supreme Court of Colorado. Nov. 3, 1913. Rehearing Denied Dec. 1, 1913.) 1. MUNICIPAL CORPORATIONS ( 46*)-CHARTERS-"AMEndment. Const. art. 20, §§ 4, 5, respectively, provide that the people of the city of Denver shall have the exclusive power of making, altering, revising, or amending their charter, and that qualified electors numbering not less than 5 per cent. may petition the council for the submission of any charter amendment or for a charter convention. Held, that as the constitutional provision did not incorporate any of the inhibitions as to the amendment of legislative bills, the term "amendment," as used therein, means an amendment in its unqualified and unlimited scope. [Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 123-125; Dec. Dig. § 46.* For other definitions, see Words and Phrases, vol. 1, pp. 368-370; vol. 8, pp. 7573, 7574.] 2. MUNICIPAL CORPORATIONS (§ 48*)-CHARTERS-WHAT CONSTITUTES-"AMENDMENT." The term "amendment" being defined as any alteration made or proposed to be made in a bill or motion by addition, change, substitution, or omission, proposals to alter the charter of Denver so as to change the government from one by mayor and legislative council to one by commissioners, and to provide for nonpartisan elections, are amendments, and do not constitute a new charter, where the old charter was left in force as to such matters as civil service, fire and police departments, fiscal management, public health, public utilities, etc., and the new provisions did not provide a complete scheme of city government, and hence such provisions may be submitted by a petition of voters, and do not need to be submitted upon the report of a charter convention, as provided by Const. art. 20, § 5. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 127, 128, 130-133; Dec. Dig. 48.*] 3. MUNICIPAL CORPORATIONS (§ 48*)-CharTERS-AMEndment. 4. MUNICIPAL CORPORATIONS (§ 46*)-CHARTER-AMENDMENTS. is not invalid because it is not self-executing An amendment to the charter of a city and is to go into effect upon a contingency. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 123–125; Dec. Dig. § 46.*] 5. MUNICIPAL CORPORATIONS (§ 46*)—CHARTER-SUBMISSION OF AMENDMENTS. Denver City Charter, § 179, provides that the official ballot shall by proper words show the nature of the instrument to be voted on, and shall give the voter the right to indicate his choice by placing a cross mark upon his ballot. Two amendments, one providing for the adoption of the commission form of government, and the other for nonpartisan elections, were submitted separately, although the provision for nonpartisan elections was contingent on the adoption of the commission form of government. Held, that, where the ballot gave the voters the right to vote on each proposition the fact that one amendment was contingent on the other did not render the submission invalid under the charter. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 123-125; Dec. Dig. § 46.*] 6. CONSTITUTIONAL LAW (§ 70*) - JUDICIAL FUNCTIONS. not a question for the courts. The wisdom of constitutional provisions is Law, Cent. Dig. 88 129-132, 137; Dec. Dig. § [Ed. Note. For other cases, see Constitutional 70.*1 7. MUNICIPAL CORPORATIONS (8 46*)-CHARTER AMENDMENTS-MODE OF SUBMISSION. Though the mode of the submission of amendments to the charter of Denver disclosed a strong partiality for the adoption of the meascaption, that fact will not render the adopure, and was, to a certain extent, unfair in its tion invalid, where over 25,000 votes were cast for or against the amendment, and there was no suggestion that any voter was misled. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 123-125; Dec. Dig. § 46.*] 8. MUNICIPAL. CORPORATIONS (8 48*)-CharTER AMENDMENTS-SUBMISSION. Amendments to the city charter of Denver, providing for the commission form of government and for nonpartisan elections, do not embrace more than one matter requiring the submission of numerous questions to the voters, even though the provisions of the first amendment necessarily abolished old offices and created new ones, and the second, as part of the scheme of nonpartisan elections, changed the election machinery and the time for holding elections; the changes all being germane to the central ideas of the amendments. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. 88 127, 128, 130-133; Dec. Dig. § 48.*] 9. MUNICIPAL CORPORATIONS (8 46*)—CharTER AMENDMENTS-PUBLICATION. The city council of Denver fixed the time Where proposed amendments, providing for for a special election for the submission of a commission form of government for the city charter amendments by ordinance. The clerk of Denver and for nonpartisan elections, were published the text of the amendments with his submitted separately, the fact that the amend- call for the election for three successive weeks; ment providing for nonpartisan elections was the first publication being on the day the ordicontingent upon the adoption of the commission nance was enacted. Held, that, even though form of government, and was not self-execut- the city charter required the publication of orFor other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes dinances before they became effective, the called, as provided for by the charter, two cerfor the election was sufficient; Const. art. 20, tain propositions in writing. Each was des§ 5, requiring the council to call such elections, not requiring it to be done by ordinance, and placing the duty of publication on the clerk, and hence the fact that the call was made by ordinance may be disregarded; it not being even required by the charter. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 123-125; Dec. Dig. § 46.*] White and Garrigues, JJ., dissenting. En Banc. Error to District Court, City and County of Denver; John H. Denison, Judge. Quo warranto by the People on relation of Marcellus F. Moore against J. M. Perkins and others. Writ denied, and relator brings error. Affirmed. C. H. Redmond and McKnight & Henry, all of Denver, for plaintiff in error. I. N. Stevens, John A. Rush, James A. Marsh, Paul Knowles, and William R. Kennedy, all of Denver, for defendants in error. HILL, J. This is an action in quo warranto in the name of the people on relation of Marcellus F. Moore. Its object is to test the title of the defendants in error to the offices of commissioners of the city and county of Denver. By this method it is sought to have declared void the enactments which purport to create the so-called commission form of government and the nonpartisan system of election for this city and county. The trial court sustained the validity of these enactments, as well as the validity of the election of the defendants in error as such commissioners under the nonpartisan system of elections provided for therein. There is no dispute concerning the facts. They disclose that a charter had been framed and was adopted by the people of the city and county of Denver in March, 1904, in conformity with the provisions of article 20 of the state Constitution. This charter provides for a board of supervisors consisting of 7 members, to be elected at large, also a board of aldermen of not less than 16 nor more than 21, to be elected by wards. It also provides for the election of a mayor and certain other executive and judicial officers, and for the appointment of certain other executive officers. In other words, it provides for a complete system of municipal government by what has heretofore been recognized as the mayor form, consisting of two legislative bodies, with a power of veto resting in the mayor, etc. The plaintiff in error, prior to the attempted change, was an alderman duly qualified and the term for which he was elected has not expired. Upon February 14, 1913, a special election was held within and for the city and county of Denver, at which were submitted separately by prior initiation of certain electors in the manner, so far as details are concern ignated therein "Amendment to the charter of the city and county of Denver." One of these propositions, by repeal of certain sections of the old charter, the amendment of others, and the adding of new sections, purports to make certain changes in the form of government from the mayor form so called, as above described, to the commission form so called, with five commissioners to take the place of the mayor and legislative council. They are also to perform certain other duties. The other purports, by the same method, to enact what is commonly known as the nonpartisan system of election. This includes what is called the preferential system of voting. The result of the election was for the adoption of each of these designated amendments, and the regular procedure provided for by the then charter appears to have been followed in declaring them adopted. Upon May 20th, following, as provided for in one of the amendments, another election was held. This was conducted under what is termed the nonpartisan system of elections, as authorized in the other amendment. At this election, the defendants in error, except James F. Markey, were, in the manner provided by this amendment, duly elected to the offices of commissioners. Mr. Markey was elected to the of fice of auditor, which had been created by one of the amendments. They all qualified and assumed to enter upon the duties of their respective offices. This resulted in the ouster of the plaintiff in error and certain other officers then holding certain offices in existence under certain sections of the old charter, which sections the latter enactments purport to amend or repeal. It is claimed that these so-called amendments are invalid for the reasons following: First, that they constitute a new or revised charter, which could only be submitted or adopted through the medium of a charter convention; second, that if they are amendments, the manner of submission to the elec tors was such as to afford no opportunity to the voters of lawfully exercising their right of franchise, and that they were consequently not legally adopted; third, that the call for the election at which they were submitted was not published, as required by the Constitution. If these enactments are amendments to the charter which was in existence at the time of their purported adoption, it becomes unnecessary to consider the question of how a new charter can be secured, for which reason we will first consider the question of whether they are amendments. [1, 2] The authority for the adoption of the charter which these enactments purport to amend, as well as the manner in which it can be amended, is to be found in article 20 of our state Constitution. This court has re peatedly held that this article is a grant of power to the inhabitants of the city and county of Denver, and that it authorizes them to do what it specifically states they can do, and such other matters as must be necessarily implied from the language used. The material parts of sections 4 and 5 necessary to be considered in this controversy read as follows: of the said city and county of Denver and shall become the organic law thereof, and supersede any existing charters and amendments thereof. "Sec. 5. The citizens of the city and county of Denver shall have the exclusive power to amend their charter or to adopt a new charter, or to adopt any measure as herein provided. It shall be competent for qualified electors in number not less than five per cent. of the next preceding gubernatorial vote in said city and county to petition the council for any measure, or charter amendment, or for a charter convention. The council shall submit the same to a vote of the qualified electors at the next general election not held within thirty days after such petition is filed; whenever such petition is signed by qualified electors in number not less than ten per cent. of the next preceding gubernatorial vote in said city and county, with a request for a special election, the council shall submit it at a special "Sec. 4. The charter and ordinances of the city of Denver as the same shall exist when this amendment takes effect, shall, for the time being only, and as far as applicable, be the charter and ordinances of the city and county of Denver; but the people of the city and county of Denver are hereby vested with and they shall always have the exclusive power in the making, altering, revising or amending their charter and, within ten days after the proclamation of the Governor announcing the adoption of this amendment the council of the city and county of Denver shall, by ordinance, call a special election, to be conducted as provided by law, of the qual-election to be held not less than thirty nor ified electors in said city and county of Denver, for the election of twenty-one taxpayers who shall have been qualified electors within the limits thereof for at least five years, who shaй constitute a charter convention to frame a charter for said city and county in harmony with this amendment. Immediately upon completion, the charter so framed, with a prefatory synopsis, shall be signed by the officers and members of the convention and delivered to the clerk of said city and county who shall publish the same in full, with his official certification, in the official newspaper of said city and county, three times, and a week apart, the first publication being with the call for a special election, at which the qualified electors of said city and county shall by vote express their approval or rejection of the said charter. If the said charter shall be approved by a majority of those voting thereon, then two copies thereof (together with the vote for and against) duly certified by the said clerk, shall, within ten days after such vote is taken, be filed with the secretary of state, and shall thereupon become and be the charter of the city and county of Denver. But if the said charter be rejected, then, within thirty days thereafter, twenty-one members of a new charter convention shall be elected at a special election to be called as above in said city and county, and they shall proceed as above to frame a charter, which shall in like manner and to the like end be published and submitted to a vote of said voters for their approval or rejection. If again rejected, the procedure herein designated shall be repeated (each special election for members of a new charter convention being within thirty days after each rejection) until a charter is finally approved by a majority of those voting thereon, and certified (together with the vote for and against) to the secretary of state as aforesaid, whereupon it shall become the charter more than sixty days from the date of filing |