delivered the opinion of the court.
Plaintiff in error brings the cause here to review a judgment of the District Court of Moffat County whereby certain of his land was awarded the town of Craig in condemnation proceedings, as an outlet for its sewage into the Yampa or Bеar river. It was and is the purpose of the town to empty its raw and unpurified sewage into that stream, at a point bounded on both sides by lands of the plaintiff, and to carry it for a distance of about a mile through his property, which he uses mainly for dairy busi ness. Numerous errors have been assigned, but for the purposes of this idecision it will be necessary to consider only such as go, first, to the question of the authority’of the town to condemn and take land beyond its corporate limits, and, second, as to its right to pollute a public stream by emptying raw sewage therein.
The town relies upon section 6525, R. S. 1908, in which, the right is given to towns and incorporated cities to keep in repair sewers, culverts, drains and the like, and also power of eminent domain. There appears to be nothing, however, either in that section or in section 5359, R. S. 1908, which empowers cities and towns to assess the costs of such improvements to its. inhabitants, or in section 5361, which specifies what class of improvements can be made, that either directly or by fair intendment authorizes such municipalities to exercise the power of eminent domain beyond their corpоrate limits. It is well settled that the power to construct such improvements does not carry with it the right to condemn private property to that end.
In Lewis on Eminent Domain, section 371 (3rd Ed.), it is said: “The authority to condemn must be expressly
Upon the proposition that a municipality has no power to condemn property outside its corporate limits, unless authority so to do is specifically given, as stated above, 28 Cyc., at page 605, has this to say: “As a rule a municipal corporation has no power to purchase and hold land for a park, highway, or other muniсipal purpose beyond its territorial limits, unless the power has been specially conferred upon it by the legislature; and such power is not conferred by a general grant of power to purchase, hold, and convey such property, real and personal, as may be necessary for its public uses and purposes. The legislature, however, may confer such power, either in express terms or by necessary implication; and thеre are cases in which, without any special grant of such power, it has been implied as necessary in order to carry out powers granted.”
So far as we are able to ascertain this general rule has been followed and approved with practical unanimity. In Warner v. Gunnison, 2 Colo. App., that court expressed its view of the rule at page 432,
Thus from our own decisions it appears clear that, unless expressly empowered by statuté ,the town of Craig has no authority to condemn land outside its corporate limits for sewer purposes. The bare right of the town to construct and maintain sewers can not be held to include the right to condemn property beyond its corporate limits in connection therewith. 15 Cyc. 569; Riley v. Rochester,
It is not disputed that the statute confers no direct or specific power upon municipalities to go beyond their corporate limits to condemn property for sewer purposes, but it is earnestly cоntended, however, that such power is given-by necessary implication. A careful reading of the sections relied upon discloses no evidence of any such legislative intent. Since, under the authorities it is evident that the giving of thе right to construct sewers does not also
In consideration of the question as to whether municipalities have a right to pollute state public streams it is to be noted that section 1817, R. S. 1908, еxpressly makes the pollution of such public waters by discharging sewage or any other obnoxious substance therein a criminal offense. There is nothing inherent in a municipality which gives it any greater rig-ht so to do than that which a natural person has.
Section 65 of Lewis on Eminent Domain declares that: “No case appears to have arisen in which the pollution of a stream has been accomplished for a public purpose and in the еxercise of the eminent domain power.” In Mining Co. v. Mining Co.,
And in Humphreys Co. v. Frank,
In Winchell v. City of Waukesha,
That court in the above case also announced the rulе that legislative authority to merely construct a sewer carried
Plainly the town of Craig by its acts is not only injuring a valuable property right of defendant, but is guilty of an invasion of the sovereign rights of the state, and is, under pretense of necessity, doing that which, if done by an individual, he would be punished criminally. Citiеs and towns, in the absence of direct legislative permission to that end, have no right to befoul and contaminate our public streams by discharging raw and unpurified sewage therein. Indeed, it is highly questionable, whether, in view of Article XVI of sеction 5 of our Constitution, any such legislative permission could be lawfully given.
It is the law of this jurisdiction that neither the public waters, nor the beds or channels of public streams, can be condemned and taken under eminent domain. Healy v. Delta, supra. It is cоntended that no such attempt is here being made. However, it is to be noted that the authorities hold that a pollution of a public stream is in effect such taking. 15 Cyc. 660, and Lewis on Eminent Domain, section 84. It is manifest that no one should be рermitted thus to indirectly accomplish that which can not be legally done by virtue of eminent domain proceedings. The situation is one pre-eminently for legislative consideration.
The judgment of the trial court is reversed, and the cause remanded, with directions to dismiss it.
Decision en Banc.
Mr. Chief Justice Garrigues dissents.