Great Northern Properties v. Extraction Oil and Gas

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

2022COA110

No. 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 2022COA110

Court 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

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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.

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¶ 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

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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

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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

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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.

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¶ 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.

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