57 Colo. 384 | Colo. | 1914
delivered the opinion of the court:
On February 15th, 1912, E. R. Stark, defendant in error, filed an amended complaint in the district court
The city demurred to the complaint generally, and specifically for the reason that the company was a necessary party. The demurrer was overruled, and the defendant relies for a defense on the ground that the company alone is liable. At the close of plaintiff’s evidence the city moved for non-suit, because the evidence was insufficient to sustain a verdict against the defendant; for the further reason that the city did, or omitted to do, no act for which it was liable to the plaintiff; and that the evidence showed that the company alone was liable for the damage which plaintiff hád sustained. This motion was overruled and exceptions reserved. The jury returned a verdict for plaintiff for $4,000. A motion for a new trial was overruled. Judgment was entered upon the verdict, to review which the defendant brings the case here.
Counsel agree that a single question is presented for determination. Is the city liable to the defendant in error for injury to his property resulting from the construction of the subway in Pike’s Peak Avenue by the company?
Section 15 of article II of the constitution provides that “private property shall not be taken or damaged, for public or private use, without just compensation.-” All of our decisions involving a construction of this provision in the class of cases under consideration are in harmony. The difficulty arises in fixing liability in individual cases. The facts disclosed are closely analo
To support the contention that the city is not liable, counsel rely upon City of Denver v. Bayer, supra, followed in Idaho Springs v. Woodward, 10 Colo. 104, 14 Pac. 49, and Idaho Springs v. Filteau, 10 Colo. 105, 14 Pac. 48; Sorensen v. Town of Greeley, 10 Colo. 369, 15 Pac. 803; Denver & R. G. Ry. Co. v. Bourne, 11 Colo. 59, 16 Pac. 839. A careful examination of these cases discloses that, contrary to those on which this decision is based, the injuries for which recovery was sought grew out of damage to private property for private benefit. The distinction is noted and emphasized in the Bayer case in the following language:
“But the construction of an ordinary railroad is not, as we have found, an improvement of the street for the convenience and benefit of the local public; it is a private enterprise, for private profit. ’ ’
These decisions are based upon the broad and equitable principle that those who reap the benefits of improvements must bear the burden of compensating for any loss occasioned in securing them. They depend upon the proposition that where the use inures primarily to the profit and advantage of individuals, or to private or quasi public corporations, just compensation for injury thereby occasioned must be made to the abutting property owner by those so benefited. In the case at bar the improvement was in the broadest sense of a public character, which could not have been reasonably anticipated; it was primarily for the safety, benefit and convenience of the public, and the city is in the first instance, under the well settled rule in this jurisdiction, clearly and unquestionably liable for damage to private property occasioned by its construction, on the highly equitable and wholesome principal that since the benefit is general the cost incurred to obtain it should be generally distributed. This doctrine is pertinently stated in Pueblo
‘ ‘ The rule is certainly more reasonable and just which requires compensation to be made by the municipality out of the common fund, for an injury occasioned by an improvement for the public convenience, than to require the individual to suffer the entire loss.”
In Harrison v. Tramway Company, supra, the general rule of liability or non-liability of municipalities to abutting property owners for changes and improvements made in streets is succinctly and lucidly stated at page 598 in this language:
“Moreover, it is certain from our decisions that a municipality in this state may use or authorize its streets to be used for all ordinary and necessary uses to which city streets are usually subjected, and to such further local uses and means of conveyance as the law-making power may have authorized for the streets and thoroughfares of the entire city, and that incidental injuries arising from a careful exercise of those rights are damnum absque injuria, but as to extraordinary or unusual uses or unreasonable changes in the street, no such immunity exists.”
Judgment affirmed.
Mr. Justice Gabbert and Mr. Justice White concur.