Colorado § 31-23-107 - Public property dedicated.

§ 31-23-107. Public property dedicated.

All streets, parks, and other places designated or described as for public use on the map or plat of any city or town or of any addition made to such city or town are public property and the fee title thereto vested in such city or town.

Source: L. 75: Entire title R&RE, p. 1145, § 1, effective July 1.

Editor's note: This section is similar to former § 31-1-108 as it existed prior to 1975.

ANNOTATION

Law reviews. For article, "Mineral Ownership Under Highways, Streets, Alleys and Ditches", see 17 Colo. Law. 43 (1988).

Annotator's note. (1) Since § 31-23-107 is similar to former § 31-1-108 prior to the 1975 repeal and reenactment of this title, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.

(2) For additional annotations concerning the dedication of public property, see § 31-2-106.

This section requires no magic words. Buell v. Sears, Roebuck & Co., 205 F. Supp. 865 (D. Colo. 1962), modified, 321 F.2d 468 (10th Cir. 1963).

The only requirement of this section is that the streets be described as for public use. Buell v. Sears, Roebuck & Co., 205 F. Supp. 865 (D. Colo. 1962), modified, 321 F.2d 468 (10th Cir. 1963).

Legal consequences of dedication. The section declares that all streets, etc., described as for public use on the map or plat of any city, or any additions, shall be deemed to be public property and the fee thereof vested in such city or town. In thus providing, this section declares that the legal consequence of a dedication is that the streets, etc., are deemed to be public property and the fee is vested in the city. Buell v. Sears, Roebuck & Co., 205 F. Supp. 865 (D. Colo. 1962), modified, 321 F.2d 468 (10th Cir. 1963).

By dedication the original owner divests himself of the power of disposition of the property and vests the city with this legal power. Buell v. Sears, Roebuck & Co., 205 F. Supp. 865 (D. Colo. 1962), modified, 321 F.2d 468 (10th Cir. 1963).

Absent failure to comply or nonacceptance statutory dedication presumed. Where it does not appear that there was any failure to comply with the statute or that there was nonacceptance, it must be concluded that it was a statutory dedication, and the terms of a statutory dedication are governed by this section. Buell v. Sears, Roebuck & Co., 205 F. Supp. 865 (D. Colo. 1962), modified, 321 F.2d 468 (10th Cir. 1963).

Statutory provisions as to dedication may materially affect the common-law rule. Buell v. Sears, Roebuck & Co., 205 F. Supp. 865 (D. Colo. 1962), modified, 321 F.2d 468 (10th Cir. 1963).

Statutory dedication and common-law dedication distinguished. A statutory dedication operates by way of grant and ordinarily conveys the full fee title to the subject property, whereas a common-law dedication operates by way of "estoppel in pais" and ordinarily conveys only an easement. City of Greenwood Vill. v. Boyd, 624 P.2d 362 (Colo. App. 1981); State Dept. of Hwys. v. Town of Silverthorne, 707 P.2d 1017 (Colo. App. 1985).

In Colorado a dedication of land to public use may be made either according to the common law or pursuant to statute. City & County of Denver v. Publix Cab Co., 135 Colo. 132, 308 P.2d 1016 (1957).

Dedication of land to a county may be accomplished only through common law dedication because procedures under this section apply only to cities and towns. Turnbaugh v. Chapman, 68 P.3d 570 (Colo. App. 2003).

A dedication by acts and conduct of a city is a common-law dedication through an estoppel in pais and not a statutory dedication requiring a grant. City & County of Denver v. Publix Cab Co., 135 Colo. 132, 308 P.2d 1016 (1957).

Unless prohibited by statute, an offer, constructive or actual, to dedicate a street can be made by a municipal corporation as well as by private owner. City & County of Denver v. Publix Cab Co., 135 Colo. 132, 308 P.2d 1016 (1957).

Whether there has been a common-law dedication is a question of fact, and the general rule that the decision of the trial court based on substantial though conflicting evidence is binding on appeal applies. City & County of Denver v. Publix Cab Co., 135 Colo. 132, 308 P.2d 1016 (1957); State Dept. of Hwys. v. Town of Silverthorne, 707 P.2d 1017 (Colo. App. 1985).

The fee title, to the surface at least, of the dedicated street passes to the city or the municipality. Buell v. Sears, Roebuck & Co., 205 F. Supp. 865 (D. Colo. 1962), modified, 321 F.2d 468 (10th Cir. 1963).

Language of dedication created conveyance to public use of area for limited purposes. Language of dedication in developer's plats and planned unit development plan, i.e., "dedicate to the public all roadways and easements for purposes shown hereon", buttressed by the other evidence, was sufficient only to convey to the public the use of the area dedicated for the limited purposes specified plus concurrent use of the area for utility and drainage easement purposes. City of Greenwood Vill. v. Boyd, 624 P.2d 362 (Colo. App. 1981).

City not limited to mere easement. It cannot be said that merely because the grantor has granted the entire highway and continues to own the land which abuts the highway on one side, that he has a right to the whole or any part of the highway when it is vacated, as there is nothing in this section which suggests that the interest granted to the city is limited to an easement. Buell v. Sears, Roebuck & Co., 205 F. Supp. 865 (D. Colo. 1962), modified, 321 F.2d 468 (10th Cir. 1963).

The fee granted is a limited one, in trust for the abutting owners and the users of the street, but the city nevertheless has a title to the property sufficient to allow disposition of it in accordance with § 43-2-302. Buell v. Sears, Roebuck & Co., 205 F. Supp. 865 (D. Colo. 1962), modified, 321 F.2d 468 (10th Cir. 1963).

Rights of abutting owner retained. When a dedication satisfied this section and vested a fee in the city to the surface and so much thereof as was reasonably necessary for street and highway purposes, it operated to divest the dedicator of the property in it except to the extent of his rights as an abutting owner — rights extending only to the center of the street as dedicated. Buell v. Sears, Roebuck & Co., 205 F. Supp. 865 (D. Colo. 1962), modified, 321 F.2d 468 (10th Cir. 1963).

Title of vacated portions vests in adjoining owner. A dedicator, even though not immediately divested of subsurface rights, is on notice at the time of dedication that if a portion of the dedicated street should be vacated by the city and county unconditional title would vest in the adjoining owner. Buell v. Sears, Roebuck & Co., 321 F.2d 468 (10th Cir. 1963).

One dedicating highways to the public by filing plats showing highways located thereon is not unconstitutionally deprived of its property by § 43-2-302 which provides that upon vacation of the highway the title shall vest in the abutting owner. Buell v. Sears, Roebuck & Co., 205 F. Supp. 865 (D. Colo. 1962), modified, 321 F.2d 468 (10th Cir. 1963).

For the requirement that a political subdivision accept a dedication, see Bd. of County Comm'rs v. Warneke, 85 Colo. 388, 276 P. 671 (1929); Hand v. Rhodes, 125 Colo. 508, 245 P.2d 292 (1952); Litvak v. Sunderland, 143 Colo. 347, 353 P.2d 381 (1960); Thornton v. City of Colo. Springs, 173 Colo. 357, 478 P.2d 665 (1970).

Land was not statutorily dedicated as a park. Where it was undisputed that land used as a park was not designated for public use on a map or plat, it was not statutorily dedicated as a park. Save Cheyenne v. City of Colo. Springs, 2018 COA 18, 425 P.3d 1174 (decided based on 1877 statutory language similar to this section).