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Complaint to Quiet Title to Real Property, C.R.C.P. 105

examiner.com | October 26, 2015

PUBLIC NOTICE

Chaffee County District Court
142 Crestone St., Salida, CO 81201
Plaintiff: ROBERT L. SPENCER, JR.

v.

Defendants: PUBLIC TRUSTEE AND TREASURER OF CHAFFEE COUNTY, John-Keith C. Parks and Darla J. Parks, the John-Keith Carter Parks Living Trust and the Darla Joy Parks Living Trust, James Irving Schaufelberger, Heaven’s HideAway, LLC, a Colorado Limited Liability Company, Amy Criswell and Josh Criswell, Michael D. Swantek and Jane A. Swantek, Robert E. Mishmash and Marianne Mishmash, Robert D. Murrah and Pamela K. Murrah, William Henry Sustrich and Frances Belle Sustrich Revocable Living Trust, Bentley Young Brooks and Elizabeth Jane Cadenhead, Cinda L. Riley and ESTATE OF Gregory A. Riley, James Foster and John Foster, and ALL UNKNOWN PERSONS WHO MAY CLAIM ANY INTEREST IN THE SUBJECT MATTER OF THIS ACTION.

Randall S. Herrick-Stare Atty. Reg. #: 7221
Marquez & Herrick-Stare, LLC
Counsel for Plaintiff
102 N. I St., P.O. Box 1203
Salida, CO 81201
Phone Number: 719-539-7663
E-mail: rhs@mhslaw.us
FAX Number: 719-539-3326

Case Number: 15CV30023
Div.: B Crtrrm.:

COMPLAINT TO QUIET TITLE TO REAL PROPERTY, C.R.C.P. 105

COMES NOW the Plaintiff, Robert L. Spencer, Jr. (hereinafter “Mr. Spencer”), by and through his counsel, Randall S. Herrick-Stare of Marquez & Herrick-Stare, LLC and states as follows:

INTRODUCTION

1. Mr. Spencer is the owner in fee simple, and is in possession of, the following described real property, located in Maysville in the County of Chaffee, State of Colorado, to-wit:

A TRACT OF LAND LOCATED WITHIN THE SOUTHWEST QUARTER OF SECTION 34, TOWNSHIP 50 NORTH, RANGE 7 EAST, NEW MEXICO PRINCIPAL MERIDIAN AND THE NORTHWEST QUARTER OF SECTION 3, TOWNSHIP 49 NORTH, RANGE 7 EAST, NEW MEXICO PRINCIPAL MERIDIAN, ALSO BEING WITHIN BLOCKS 64, 65, 66 & 67, AND PORTIONS OF VACATED 5th STREET, 6th STREET, 7th STREET, 8th STREET AND RIVER AVENUE, TOWNSITE OF MAYSVILLE, CHAFFEE COUNTY, COLORADO, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:

BEGINNING AT THE NORTHEAST CORNER OF BLOCK 7 OF SAID TOWNSITE OF MAYSVILLE, BEING ON THE SOUTHWESTERLY RIGHT-OF-WAY OF CHAFFEE COUNTY ROAD NO. 220 AND BEING MARKED BY A 1 1/2" ALUMINUM CAP STAMPED "NE BLK 7, LS 1776", FROM WHENCE THE SOUTHWEST CORNER OF SAID BLOCK 64, BEING MARKED BY A 1 1/2" ALUMINUM CAP STAMPED "SW 64, LS 1776" BEARS SOUTH 60°28'37" WEST, A DISTANCE OF 555.75 FEET;

THENCE SOUTH 34°14'50" WEST ALONG THE SOUTHEASTERLY SIDE OF SAID BLOCK 7, A DISTANCE OF 249.27 FEET TO THE CENTERLINE OF VACATED RIVER AVENUE;

THENCE NORTH 56°46'58" WEST ALONG SAID CENTERLINE OF RIVER AVENUE, A DISTANCE OF 274.06 FEET TO THE CENTERLINE OF VACATED 8th STREET;

THENCE SOUTH 33°46'30" WEST ALONG SAID CENERLINE OF 8th STREET, A DISTANCE OF 244.57 FEET TO THE SOUTHWESTERLY BOUNDARY OF SAID BLOCK 64 EXTENDED;

THENCE SOUTH 56°16'20" EAST ALONG THE SOUTHWESTERLY BOUNDARY OF SAID BLOCKS 64, 65, 66 & 67, A DISTANCE OF 1022.53 FEET TO THE SOUTHEASTERLY CORNER OF LOT 14, SAID BLOCK 67, BEING MAKED (sic) BY A 1 1/2' (sic) ALUMINUM CAP STAMPED "LS 1776";

THENCE NORTH 34°08'36" EAST ALONG THE SOUTHEASTERLY LINE OF SAID LOT 14 AND LOT 7, BLOCK 67, A DISTANCE OF 244.52 FEET TO THE CENTERLINE OF SAID RIVER AVENUE, BEING MARKED BY A 1 1/4" PLASTIC CAP STAMPED "LS 16117";

THENCE NORTH 56°04'52" WEST ALONG SAID CENTERLINE OF RIVER AVENUE, A DISTANCE OF 725.05 FEET TO THE CENTERLINE OF VACATED 7th STREET, BEING MARKED BY A 1 1/2" ALUMINUM CAP STAMPED "LS 37937";

THENCE NORTH 34°14'59" EAST ALONG SAID CENERLINE OF 7th STREET, A DISTANCE OF 249.16 FEET TO THE SOUTHWESTERLY RIGHT-OF-WAY OF CHAFFEE COUNTY ROAD NO. 220, BEING MARKED BY A 1 1/2" ALUMINUM CAP STAMPED "LS 37937";

THENCE NORTH 55°48'31" WEST ALONG SAID RIGHT-OF-WAY, A DISTANCE OF 25.01 FEET TO THE POINT OF BEGINNING.

CONTAINING 5.92 ACRES, MORE OR LESS.

TOGETHER WITH A ROADWAY EASEMENT WITHIN THE TOWNSITE OF MAYSVILLE, CHAFFEE COUNTY, COLORADO, DESCRIBED AS FOLLOWS:

BEGINNING AT THE NORTHWESTERLY CORNER OF LOT 6, BLOCK 4 OF SAID OF SAID (sic) TOWNSITE OF MAYSVILLE, BEING ON THE SOUTHWESTERLY RIGHT-OF-WAY OF CHAFFEE COUNTY ROAD NO. 220 AND BEING MARKED BY A 1 1/2" ALUMINUM CAP STAMPED "LS 16117", FROM WHENCE THE NORTHEAST CORNER OF BLOCK 7 OF SAID TOWNSITE OF MAYSVILLE BEARS NORTH 55°48'31" WEST, A DISTANCE OF 725.21 FEET;

THENCE SOUTH 34°17'20" EAST ALONG THE NORTHWESTERLY LINE OF LOTS 6 AND 15 OF BLOCK 4 AND LOT 6 OF BLOCK 67, A DISTANCE OF 320.0 FEET;

THENCE SOUTH 55°42'40" EAST, A DISTANCE OF 20.0 FEET;

THENCE NORTH 34°17'20" EAST, A DISTANCE OF 320.0 FEET TO SAID SOUTHWESTERLY RIGHT-OF-WAY OF CHAFFEE COUNTY ROAD NO. 220;

THENCE NORTH 55°48'31" WEST ALONG SAID RIGHT-OF-WAY, A DISTANCE OF 20.0 FEET TO THE POINT OF BEGINNING.

For convenience, this parcel is hereinafter referred to as the Spencer Parcel.

There are three subparcels within the Spencer Parcel which, having different histories, are discussed separately in this complaint. They are referred to as a) the Main Subparcel, b) the Eighth Street Subparcel, c) and the Seventh Street Subparcel.

2. In addition, Mr. Spencer owns an ingress and egress easement across property owned by the Parks, providing access to the east end of the Main parcel. It also in displayed on the above diagram and referred to hereinafter as the Easement.

PARTIES

3. A number of persons, trusts and companies own property abutting the Spencer Parcel and or underlay the Easement. They may claim an interest in the Spencer Parcel as specifically described in 1 above, or in the land subject to the Easement. Working from the east end of the Spencer Parcel in a counter-clockwise direction, the owners of abutting or underlying property are identified below.

4. By virtue of a May 27, 2010 warranty deed (Chaffee County Reception No: 387995), John-Keith C. Parks and Darla J. Parks (collectively the “Parks”) owned the property on the easterly end of the Spencer Parcel. Specifically, a portion of what the Parks own, Maysville Block 4, Lots 6 and 14, and Maysville Block 67, Lots 6 and 15, and the portion of vacated River Avenue defined by the extension of the above-referenced lot lines, abuts the Spencer Parcel, the east end of the Main Subparcel. Most of this abutting land is subject to an ingress and egress roadway easement described more specifically above, i.e. the Easement.

5. By virtue of a September 30, 2010 warranty deed (Chaffee County Reception No: ***), the Parks conveyed a portion of their jointly held property on the easterly end of the northly edge of Spencer Parcel, and west of the Easement, to the John-Keith Carter Parks Living Trust, and the Darla Joy Parks Living Trust (collectively the “Parks Trusts”), specifically lots in Maysville Block 4 together with the northerly half of River Avenue.

6. By virtue of a March 15, 2014 special warranty deed (Chaffee County Reception No: 413536, James Irving Schaufelberger owns land abutting the northerly edge of the Spencer Parcel, of the Main Subparcel, specifically he owns lots in Maysville Blocks 5 and 6 and vacated streets between them.

7. Pursuant to an October 31, 2002 quit claim deed (Chaffee County Reception No: 334356), Heaven’s Hideaway, LLC owns land abutting the northerly edge of the Spencer Parcel, of the Main Subparcel, specifically, lots in Maysville Block 6 together with abandoned alleys and the northerly half of River Avenue.

8. Pursuant to a April 3, 2008 quit claim deed (Chaffee County Reception No: 373518), Amy Criswell and Josh Criswell (collectively the “Criswells”) own land along the northerly edge of the Spencer Parcel, of the Main Subparcel, specifically Lots 8 through 13 in Maysville Block 6 together with the area between the lot edge and the centerline of River Avenue and 7th Street. Their land abuts the eastern edge of the Seventh Street Subparcel. Improvements on the western edge of the Criswells’ property encroach upon the Seventh Street Subparcel by several feet.

9. Pursuant to a November 29, 2004 quit claim deed (Chaffee County Reception No: 347669), Michael D. Swantek and Jane A. Swantek (collectively the “Swanteks”), own property abutting the both the northerly edge of the Spencer Parcel, of the Main Subparcel, and the western edge of the Seventh Street Subparcel, specifically the Swanteks own Maysville Block 7, Lots 1 through 5 and 16 through 20, together with the alleyway between those lots and the adjacent northerly half of River Avenue.

10. Pursuant to an August 18, 1965 deed (Chaffee County Reception No: 117015), Robert E. Mishmash and Marianne Mishmash (collectively the “Mishmashes”), own property along the westerly end of the northerly edge of the Spencer Parcel, of the Main Subparcel, specifically Maysville Block 7, Lots 9 through 14, together with the adjacent northerly half of River Avenue.

11. Pursuant to a July 6, 2007 warranty deed (Chaffee County Reception No: 367975), Robert D. Murrah and Pamela K. Murrah (collectively the “Murrahs”) own land adjacent to the west of the Spencer Parcel, of the Main Subparcel, specifically portions of Maysville Block 63.

12. Pursuant to a September 3, 1996 quit claim deed (Chaffee County Reception Nos: 286824 and 286825), the William Henry Sustrich and Frances Belle Sustrich Revocable Living Trust (hereinafter “Sustrich Trust”), owns to the west of, but not abutting the Spencer Parcel, the Main Subparcel, specifically it owns land up to the easterly edge of Maysville Block 63, to the westerly edge of 8th Street.

13. Pursuant to the November 3, 1972 will of Edwin M. Brooks, Bentley Young Brooks and Elizabeth Jane Cadenhead acquired title to a wedge of land on the south side of No Name Street between 7th and 8th Streets in Maysville (Chaffee County Reception No: 199722).

14. Pursuant to a July 10, 2002 warranty deed, (Chaffee County Reception No: 327429) Cinda L. Riley and Gregory A. Riley (collectively the “Rileys”) own land on the south side of No Name Street. (Note: Gregory A. Riley died January 25, 2014. Per order of July 9, 2015, under C.R.C.P. 25, the Estate of Gregory A. Riley has been substituted for Gregory A. Riley.)

15. Pursuant to a May 15, 1992 bargain and sale deed (Chaffee County Reception No: 262729) James Foster and John Foster own land to the south and east of the Spencer Parcel.

SPENCER PARCEL, TRANSACTIONS

16. On August 3, 1970, this court in a quiet title action, encaptioned: Hall et al v. Town of Maysville et al, Civil Action No: 6392 (recorded at Chaffee County records Book 379, Page 310 to 312, Receipt NO: 146592), entered a decree quieting title to most of the Spencer Parcel, including the Main Subparcel, the Eighth Street Subparcel (but not the Seventh Street Subparcel), and the Easement, in Lloyd and Nadine Hall (as joint tenants) and in Francis and Kathryn Doran (as joint tenants). The legal description of the parcel in the decree is as follows:

Beginning at the point of intersection of the centerline of 8th Street with the centerline of River Avenue in said Town of Maysville, said point being 282.5 feet southwesterly from the intersection of the centerline of Colorado Avenue and said 8th Street which latter intersection is marked by a 5/8 inch steel reinforcing bar 2 feet long driven in the ground and having a one-and-one-half inch (1½”) aluminum cap stamped “1776”; thence southwesterly along the centerline of said 8th Street 245.0 feet; thence at right angles southeasterly along the southwesterly side of Blocks 64, 65, and 67 a distance of 1025.0 feet to the southerly corner of lot 14, Block 67; thence at right angles and parallel with 8th Street northeasterly along the southeasterly lot line of said lot 14 and lot 7 of said Block 67 a distance of 245.0 feet to the centerline of said River Avenue; thence at right angles northwesterly along said centerline of River Avenue 1025.0feet to the point of beginning.

Together with the right of ingress and egress over a roadway easement within the Town of Maysville, Chaffee County, Colorado, described as follows:

Beginning at the northerly corner of lot 6, Block 4 of said Town of Maysville, being a point on the southwesterly boundary of the County Road which is also Colorado Avenue, thence southwesterly along the northwesterly line of of lots 6 and15 of Block 4 and of lot 6 of Block 67 a distance of 120.0 feet; thence at right angles southeasterly 20.0 feet; thence northeasterly parallel with the northwesterly line of said lots 6 and 15 of Block 4 and lot 6 of Block 67 a distance of 320.0 feet to the southwesterly line of said County Road which is also Colorado Avenue; thence along said line 20.0 feet to the point of beginning. (Emphasis added.)

17. On the 4th of August 1972, Owners Lloyd and Nadine Hall (as joint tenants) and Francis and Kathryn Doran (as joint tenants) conveyed the parcel and easement with were the subject of the 1970 decree (¶ 16 above) to Leone Fox. The Hall-Doran/Fox warranty deed is found at Chaffee County records Book 379, pages 378 to 379, Reception No: 146645.

18. On the 2nd of June 1980, Leone Fox conveyed the parcel subject of the 1970 decree, which did not include the Seventh Street Subparcel, to Marion Reynolds. This Fox/Reynolds warranty deed is found at Chaffee County records Book 433, Pages 304 to 305, Reception No: 200443.

19. Also on the 2nd of June 1980, Leone Fox conveyed other real property, including the Seventh Street Subparcel, to Marion Reynolds. The part of the conveyance of Seventh Street, which included the Seventh Street Subparcel, is described as follows:

A tract of ground described as follows: Commencing at the northwest corner of Lot 10 in Block 6, running westerly along the southerly side of Colorado Avenue 50 feet more or less to the northeast corner of Lot 1 in block 7, running thence southerly along the easterly sideline of Lots 1 and 20 to the southeasterly corner of Lot 20 in Block 7; running thence easterly 50 feet to the southwesterly corner of Lot 11 in Block 6; thence northerly along the westerly sidelines of Lots 11 and 10 in Block 6 to the place of beginning, all in the Townsite of Maysville, Chaffee County, Colorado.

The warranty deed memorializing the transfer of the Seventh Street Subparcel is recorded in Chaffee County records Book 433, Pages 306 to 307, Reception No: 200444.

20. On October 29, 1980, Marion Reynolds conveyed property including, all of Seventh Street between Blocks 6 and 7 to Fred and Gladys Parke. See Chaffee County records Book 436, Pages 984 to 985, Reception No: 203776. The legal description in the warranty deed is as follows:

Together with a part of Seventh Street lying between Blocks No 6 and 7 of said Townsite, the northerly one-half of River Avenue lying between the westerly side line extension of Seventh Street and the easterly side line extension of lot 12 in Block 6….

This describes the Seventh Street Subparcel, which is the western half of Seventh Street southerly to the centerline of River Street.

21. On February 24, 1981, the Parkes conveyed back to Reynolds the westerly half of Seventh Street to the centerline of River Avenue, i.e. conveyed what is being referred to here as the Seventh Street Subparcel. The legal description in the Parkes/Reynolds warranty deed (Chaffee County records Book 442, Pages 928 to 929, Reception No: 209041) provides the following legal description:

The strip of ground, 25 feet in width, being the westerly one-half of that vacated portion of Seventh Street and the northerly on-half of vacated River Avenue, lying between the southerly boundary of Colorado Avenue and the centerline of River Avenue, in the Townsite of Maysville (abandoned), Chaffee County, Colorado, described as follows: Beginning at the intersection of the southerly boundary of Colorado Avenue and the westerly boundary of said Seventh Street; thence southwesterly, along the westerly boundary of the Seventh Street extended, to the centerline of River Avenue; thence southeasterly, along said centerline, 25 feet, thence northeasterly, parallel with the westerly boundary of Seventh Street, to the southerly boundary of Colorado Avenue; thence northwesterly, along said southerly boundary of Colorado Avenue, 25 feet to the point of beginning. (Emphasis added.)

22. On March 5, 1985, Marion Reynolds executed a deed of trust to secure a promissory note. The deed of trust is found at Chaffee County records Book 470, page 531 et seq., Reception No: 233067. It provided:

All of blocks 64, 65, and 66; Lots 7, 8, 9, 10,, 11, 12, 13, and 14, Block 67; Part of vacated 5th, 6th and 7th Streets; Part of vacated River Avenue; and Part of vacated alleys. Subject property containing approximately 5.77 acres, more or less, in Maysville, Chaffee County, Colorado.

23. Reynolds defaulted on the promissory note, and the deed of trust was foreclosed upon.

24. The October 6, 1989, Public Trustee’s Deed to Thatcher Bank, Federal Savings Bank (Chaffee County records Book 506, pages 774 to 776, Reception 253419) merely duplicated the legal description in the Reynold’s deed of trust.

25. On March 1, 1990, Reynolds conveyed the Easement to Thatcher Bank by quit claim deed (Chaffee County records Book 523, Page 744, Reception No: 262087).

26. On July 16, 1991, Thatcher Bank conveyed by special warranty deed to the Plaintiff Robert Spencer (Chaffee County records Book 523, Page 744, Reception No: 262087), the following:

All of Blocks 64, 65, and 66; Lots 7, 8, 9, 10, 11, 12, 13, and 14, Block 67; Part of vacated 5th 6th, and 7th Streets; part of vacated River Avenue; and Part of vacated alleys, Maysville, Chaffee County, Colorado.

Together with the right of ingress and egress over a roadway easement within the Town of Maysville, Chaffee County, Colorado, described as follows: (legal description of the Easement follows).

27. There may be persons interested in the subject matter of this action whose names cannot be inserted herein because said names are unknown to the Plaintiff, although diligent efforts have been made to ascertain the names of said persons. Said persons have been made Defendants and designated as “all unknown persons who may claim any interest in the subject matter of this action”; insofar as Plaintiff’s knowledge extends, the interest, if any, of the unknown parties is derived through one or more of the named Defendants.

28. The Defendants may claim some right, title or interest in and to the above-described real property adverse to the Plaintiff; the claims of said Defendants are without foundation or right.

WHEREFORE, the Plaintiff prays for complete adjudication of the rights of all parties to this action with respect to the real property hereinabove described in Paragraph 1; for a Decree requiring the Defendants to set forth the nature of their claims, determining that the Defendants, and each of them, have no interest, estate or claim of any kind whatsoever in or to the above-described real property, forever barring and enjoining the Defendants from ever asserting any claim or title thereto, quieting the title of the Plaintiff in and to the above-described real properties, and adjudging that the Plaintiff is the owner in fee simple and is entitled to possession of the real property; and for such other and further relief as the Court may deem just and proper.

Respectfully submitted this __________ day of _____________________, 2015.

MARQUEZ & HERRICK-STARE, LLC

By:_______________________

Randall S. Herrick-Stare #7221

ADDRESS OF PLAINTIFF:
Robert L. Spencer, Jr.
1444 K Street
Salida, CO 81201

 

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