24 Colo. App. 340 | Colo. Ct. App. | 1913
This action comes before us on an appeal from an 'order and judgment made by the district court of Chaffee county, Colorado, denying the right of the appellants to 'a perpetual injunction and dismissing the action. The ¡complaint alleges, among many other things, that on or about the 3rd day of March, 1908, a petition was pre||sented to the appellees, as county commissioners of the county of Chaffee, praying that a county road be laid out established along a certain course or route, therein idescribed, which ran through certain lands and premises of the appellants; and on or about the 6th day of April, the appellees, at a special meeting, entered, on said |!|petition, an order appointing road viewers, and did appoint road viewers, to view the road described in said pe- and directed said viewers to meet at 10 o’clock
We think the complaint, taken as confessed, states a cause of action, and'the chief justice of the supreme court
‘ ‘ Where the power of eminent domain has been delegated to public officers or others who are threatening to make a permanent appropriation of private property to public uses, in excess of the power granted or without complying with the conditions upon which the right to make the appropriation is given, a court of equity will prevent the threat ened wrong without regard to the question of irreparable damages or.the existence of legal remedies which may afford a money compensation.”— Lewis on Eminent Domain, 2nd vol., 2nd ed., page 1356, sec. 632; Browning v. Camden & Amboy R. R. Co., 4 N. J. Eq., 47-57; Bass v. Metropolitan Co., 82 Fed., 857, 27 C. C. A., 147, 39 L. R. A., 711.
Counsel for appellees vigorously urges that both the statutory and general remedy for damages are open to appellants, and that no great or irreparable injury will be done if the writ is denied.
In addition to taking the land, apparently without due process of law, the complaint shows that the appellants are engaged in the cattle business, and use the premises crossed by the proposed road for pasturing cattle; and have a private lane or roadway connecting said premises with the South Arkansas river as the only source of' water supply for said cattle at certain seasons of the year, and if said road should be laid out as ordered by the appellees, it would deprive the Del Monte Live Stock Company, one of said appellants, of the use and benefit of said private lane for the purpose for which it was purchased by said company, and for the purpose for which it had been continuously used by said company since the year 1885.
“It (irreparable injury) does not necessarily mean, as used in the law of injunctions, that the injury is beyond the possibility of compensation in damages, nor that it must be very great. And the fact that no actual damages can be proven, so that in an action at law the jury could award nominal damages only, often furnishes the very best reason why a court of equity should interfere in a case where the nuisance is a continuous one.”
This proposition is also supported in Newell et al. v. Sass, 142 Ill., 116, 31 N. E., 176, which further holds:
“That an injunction will lie to prevent obstruction to a private way on the ground that the party has no adequate remedy at law. ’ ’
See also McCann et al. v. Day, 57 Ill., 101.
In Lewis bn Eminent Domain, 2nd ed., 2nd vol., page 1351, sec. 631, it is stated that:
“It is said to be almost universally held that an entry upon private property under the color of the eminent domain power will be enjoined until the right to make such entry has been perfected by a full compliance with the constitution and the laws.”
Chicago & Atchison Bridge Co. v. Pacific Mutual Tel. Co., 36 Kan., 113, 12 Pac., 535; Mettler v. Easton & Amboy R. R. Co., 25 N. J. Eq., 214.
It is also contended that the supreme court has no original jurisdiction to entertain an application for an injunction in a case like this, unless presented in the same manner and upon the same facts as it was submitted to the court below.
According to the record before us, as we are to consider it, the case has been so submitted. It is well settled in our supreme court that appealed cases must be based upon matters contained in the record. It is not a trial de novo; additional averments, or evidence, or ex parte
We do not understand that the application to the supreme court for the injunction comes within the purview of section 3, article 6 of the constitution, as contended by the appellees. The record shows that an application was made in the court below for a temporary injunction, which was denied; then the court held in effect that, as the only permanent relief sought in the complaint was a ‘perpetual. injunction, or making the temporary injunction perpetual, the action should be, and was, dismissed. The appellants appealed to the supreme court, and applied to the court below for a temporary injunction pending the appeal, which was also denied; then the appellants applied to the supreme court for a temporary injunction, which was granted, and an order was issued on the appellees to show cause why the writ should not be made permanent. We gather from the record that it was the purpose of the supreme court and the parties to the action to have a final judgment rendered in the matter in that court, which is authorized under section 398, page 707, Mills’ Annotated Code, which reads as follows:
“In all cases of appeals and writs of error, the supreme court may give final judgment and issue execution, or remand the cause to the lower court, in order that execution may be there issued. ’ ’
The appellees further insist that there is no defendant in this cause against whom a writ might issue.
The suit is brought against “Thomas Eyan, J. A. Burnett and C. L. Naehtrieb, constituting and being the board of county commissioners of the county of Chaffee in the state of Colorado.” Section 778, page 746, 1st Mills’ Annotated Statutes, provides that the proper title for suits against a county is “The board of county commissioners of -the county of........” The title stated in this case is technically insufficient, and if the appellees
“A defect of parties must be raised either by-demurrer or answer, and if not so raised it is waived.”
Fitzgerald v. Burke, 14 Colo., 559-562, 23 Pac., 993; Great West Min. Co. v. Woodmas of Alston Min. Co., 12 Colo., 46, 20 Pac., 771, 13 Am. St., 204; Poundstone v. Holt, 5 Colo. App., 66-69, 37 Pac., 35; Miller v. Kinsel, 20 Colo. App., 346-349, 78 Pac., 1075; sections 50, 54 and 55, Mills’ Annotated Code.
In this,,case no defect of parties has been raised by answer or demurrer, or at all, except by suggestion in brief of counsel in the supreme court, which is wholly in
Section 5838, Revised Statutes of 1908, requires viewers to assess the damages and benefits to owners of any land over which a proposed road may pass. Section 5842, of said statutes, requires the viewers to file a report with the county clerk ten days before the next regular meeting of the board of county commissioners held after the view is completed, giving a description of the land, an assessment of the damages and benefits accruing to any person, and the sum awarded to any person in excess of the benefits, with a plat, survey and a report of the surveyor.. Section 5843 of said statutes requires the board of commissioners, at their‘next regular meeting after the return of said report, to consider the same and all objections that may be made thereto, and to determine whether or not said road shall be established and opened to travel, with permission to such board of commissioners to refer the matter of viewing to the same or other viewers with instructions to report in like manner, or specially upon some particular matter.
As private property can be taken for public use against the consent of the owner only in such cases and by such proceedings as may be specially provided by law, and these proceedings are not according, to the common law and are in derogation of private rights, and as they wholly depend upon statute regulation in this state, anyone using this extraordinary and harsh power must substantially, at least, comply with all the provisions of the statute; and we think, under the allegations in the complaint, that there has not been a substantial compliance such as we think is necessary to justify the board of county commissioners of the county of Chaffee to proceed with the opening of said road; and, therefore, it is ordered and decreed by the court that said board of county commissioners of the county of Chaffee should bo