62 Colo. 114 | Colo. | 1916
Opinion by
The plaintiffs in error petitioned the County Court of Gunnison County for an order disconnecting a tract of 240 acres of land from the Town of Gunnison. The court directed that the proceeding be set for hearing on February 16th, following. On the same day, there was issued out of the County Court a notice of the time set
Plaintiffs in error urge that the court was in error in sustaining the motion to quash on the ground that the proceedings were in violation of the provisions of the Constitution, art. VI, sec. 30, which requires all process to run in the name of the People.
If this was error, the petitioners cannot rely on it now, since they waived it by amending their petition, and proceeding according to the views of the court in the matter.
It is further urged that the court erred in its fifth-finding to the effect that the town had maintained a street on the boundary of the property during three years last preceding the petition; that being a condition of the city’s retaining the tract within its boundaries as against the right of the petitioners to have it disconnected. On this question there was a marked conflict of evidence, and while it does not appear that the town had done very much in maintaining the street, there was testimony that some money had been expended; one witness testified to
In Kersey v. Ewing, 59 Colo. 239, 149 Pac. 619, this court reversed a judgment in favor of the petition upon the ground that there was some evidence of labor expended upon the streets which was not contradicted, and said:
“Where, as here, facts are shown which may reasonably be said to constitute a maintenance of the utility Avithin the plain meaning of the statutory provision, the extent or degree thereof is of no consequence.”
We must conclude, then, that the amount of work done on this street, to which there is uncontradicted testimony, is sufficient to sustain the finding and judgment. The judgment is accordingly affirmed.
Judgment affirmed.