
    No. 8733.
    Eisenhart v. City and County of Denver.
    
      Townsites — Probate Judge as Trastee. Under the act for the relief of the citizens of Denver (5 Stats, at L. 657) the Probate Judge was trustee for those actually occupying lots in the townsite at the date of the entry, and as to them only to the extent of such occupancy.
    The finding of the trial court being sustained by competent testimony the judgment of the Court of Appeals (27 Colo. App. 470) was affirmed.
    
      Error to the Court of Appeals.
    
    
      En banc.
    
    Messrs. Hilliard, Lilyard & Finnicum, and J. R. Allphin, for plaintiff in error.
    Mr. J. A. Marsh, Mr. G. Q. Richmond, for defendant in error.
   Opinion by

Mr. Justice Teller.

This cause is before us on error to the Court of Appeals which affirmed a judgment of the district court in favor of the defendant in an action brought by the plaintiff in error to recover possession of real estate.

The facts are fully set forth in the opinion of the Court of Appeals (27 Colo. App. 470, 150 Pac. 729).

The principal controversy is due to a difference between two surveys, the plaintiff claiming that the original conveyance by the Probate Judge, under the town-site act of 1864, was according to a survey made in 1859, while the defendant contends that it was made under a survey made in 1865. By the later suryey a large part of the land platted in the first survey as lots 8, 9 and 10 of Block 103, East Division of Denver, is placed in the bed of Cherry Creek.

We agree with the Court of Appeals that the facts of this case do not justify a presumption that it was intended that the grantee in the original deed should take title to the central line of Cherry Creek. The Probate Judge was a trustee, under the statute, for those who were actually occupying land at the date the town-site was entered, and, as to them, only to the extent of such occupancy.

The rule invoked by plaintiff has no application to such a case.

Decided January 7, A. D. 1918.

Rehearing denied March 4, A. D. 1918.

There is no direct evidence to show under which survey the conveyance was made, and we are left to determine the question by inference from the facts as stipulated.

The Court of Appeals was of the opinion that the findings of the trial court were sustained by competent evidence, and we cannot say that it was wrong in thus concluding.

The judgment is therefore affirmed, and the cause remanded to the district court.

Judgment affirmed.  