Healy v. City of Delta, No. 7358

No. 7358 | Colo. | Jan 15, 1915

Opinion by

Mr. Justice Teller.

In this cause the City of Delta, by proceedings under the Eminent Domain act, obtained a judgment giving it a strip of land belonging to the plaintiff in error, and constituting a part of the bed of the Uncompahgre River, with the right to use said river for the conveyance of the city’s sewage.

It is assigned as error that the court was without jurisdiction to enter the judgment which in effect condemns the waters of the river, and makes it a part of the sewer system. This is the only question necessary to be considered. Municipal corporations can exercise the right of eminent domain only to the extent to which the power has been conferred upon them by statute.

“Not only must the authority to municipal corporations, or other legislative agents, to take private property, be expressly conferred, and the use for which it is taken specified, but the power, with all constitutional and statutory limitations and directions for its exercise, must be strictly pursued." Dillon Mun. Corps. 5th Ed. sec. 1040. See also, Lewis on Eminent Domain, sec. 240. Allen v. Jones, 47 Ind. 488.

The statutes of the state grant to municipal corporations authority to condemn land for streets, and for other purposes, including the right of way for sewers, but we find no statute which provides for their condemning a public stream for the purpose of making it a part of a sewer system.

There being no statutory authority for the proceeding the judgment is invalid.

Judgment is reversed, with directions to dismiss the cause.