57 Colo. 473 | Colo. | 1914
delivered the opinion of the court:
Defendant in error instituted proceedings under the provisions of article 4, chapter 147, Revised Statutes, • 1908, against plaintiffs in error and others, to acquire property for the purpose of opening, widening, and extending West Alameda. Avenue west. This avenue is intersected by numerous railroad tracks, and the purpose of the proceedings was to provide for the construction of an open cut subway underneath these tracks, to be used in connection with the avenue as extended, whereby grade crossings would be avoided. The title to part of the property involved, embraced in the west part of proposed extension, was held in trust for the use and benefit of the Water Company by the other plaintiffs in error, through which the company had constructed water mains and other appurtenances in connection with its waterworks system. Connected with these 'appurtenances it had placed a twenty-four inch pipe line in that part of the avenue adjacent to and intersected by the railroad tracks, and also in what is known-as County Road No. 44, which runs west from the west end of the avenue, as it existed when the proceedings were commenced, to the lands held in trust for the Water Company. It had also constructed in these several highways, and in County Road No. 48, which runs in a northwesterly direction from the end of Road No. 44, abutting the lands of the Water Company on the east, a twelve inch pipe line, which extended to South Jason street on the north.
The Commissioners appointed filed a report fixing the damages which the company would sustain in removing and reconstructing its twenty-four inch pipe line at the sum of $8.92 per foot, for so much thereof as it would be necessary to remove and reconstruct as a result of the change of grade and excavation for the subway. To this part of the report the city filed objections, in so far as it awarded compensation for condemning the twenty-four inch pipe line and right of way or easement therein in
The issues thus made were tried to the court. It appears from the testimony that the use of West Alameda avenue by the company for the construction and maintenance of its water works system was authorized by a franchise from the City of Denver and a contract with the city, and that the company had an easement or right of way in perpetuity by deed in County Road No. 44, from the owner of the abutting property for its twenty-four inch pipe line. These roads were established in 1881, and the deed was obtained subsequent to that date. Prior to obtaining this deed, the territory embracing the portions of these roads involved was annexed to the city, and the deed in question was obtained after that was done. By the terms of the franchise and contract the city did not thereby expressly covenant that the pipes when laid in the streets should not be removed or disturbed, in the event a change of grade in such streets was ordered, or othei public improvement therein made. In other words, the franchise and contract were silent on this subject. The city admitted that it would be necessary for the company to reconstruct its twenty-four inch pipe line from a point substantially at the east end of the subway to a point in the premises held in trust for the company abutting the end of County Road No. 44, adjoining County Road No. 48. The city offered to obtain and furnish the company with a new right of way for the reconstruction of this line, and in view of that proposal the Water Company agreed to limit its claim for damages in this connection to the cost of reconstruction. It is also admitted that the
On the part of plaintiffs in error it is claimed that the trial court erred in refusing to allow the Water Company damages for taking and depriving it of its right of way through that portion of West Alameda Avenue as it existed at the time the proceedings in condemnation were instituted. In support of this claim it is urged that the right which the company acquired by its franchise and contract with the city to place and maintain pipe lines connected with its water works system in this part of the avenue, is a property right of which it cannot be deprived without just compensation, and that its damage in this respect is the expense incurred in removing and reconstructing this part of its pipe lines over a new route.
The prime purpose of a street is to provide a way for the use of the people at large for travel on foot and in ordinary vehicles. The power to grade streets and construct subways for the safety and convenience of the
If the proper officials of a municipality could not exercise their authority or discharge their duty to make such reasonable changes in the grade of a street or an improvement therein, as in their judgment the convenience and safety of the public require, except by first making compensation to any utility corporation which had previously acquired an easement in the street, their authority and duty would be seriously interfered with.
By an ordinance duly passed provision was made for widening, extending and establishing West Alameda Avenue west. Pursuant to this ordinance, the condemnation proceedings were commenced by the city. Subsequently, by virtue of an ordinance a contract was entered into between the city, The Denver Tramway Company and the railroad companies owning and operating the tracks intersecting the avenue, whereby it was agreed that each should bear one third of the expense of constructing the subway, which should include the costs and damages awarded by virtue of the condemnation proceedings then pending in the name of the city. It further provided that
We do not regard this contention as tenable. The city had the right to condemn for the purposes of constructing a subway and extending and widening the avenue. So far as advised from the record or briefs of counsel, the city had' the right after the subway was constructed to grant the Tramway Company the use of a part thereof for street car purposes. It does not appear, nor is it claimed, that had the city constructed the subway at its own expense, the grade and dimensions would have been any different from the grade and dimensions provided in the contract. So that the contract with the tramway and railroad companies, the right granted the former by its terms, and the construction of the subway in accordance with its provisions, have not resulted in imposing upon the Water Company any greater burden than would have been imposed had the contract by which the
The civil engineers who testified, both for the city and the Water Company, agreed that from an engineering and also a railroad standpoint, a better location for the subway would have been along West Byers Place, a street north of West Alameda Avenue. It is claimed that if the subway had been constructed in the street mentioned the damages to the Water Company would have been much less.
There appears to be some basis for this claim, and it is therefore urged that there has been unwarranted interference with the rights of the Water Company in West Alameda Avenue. We are not advised from the record what the expense of constructing a subway in West Byers Place would have been as compared with the expense of constructing it over the route selected. All that is said on the subject by the engineers is to the effect that West Byers Place was a more feasible route for the construction of the subway. What is meant by this is left to mere conjecture. The city authorities were vested with sound discretion in locating the subway, and the exercise of this discretion and judgment is conclusive, unless it clearly appears that their action was fraudulent or unreasonable. City of Denver v. Kennedy, 33 Colo. 80, 80 Pac. 122, 467.
It is next urged .that the court erred in refusing to allow the company damages for the expense of removing and reconstructing its pipe lines through the portion of County Boad No. 44, now a part of the avenue as extended, for the reason that the company had acquired an easement from the abutting property owner to lay
Through a portion of the land owned by the Water Company taken for the street as extended, lying west of the part in which the pipe line was in part reconstructed and in part lowered, the company had a twenty-four inch pipe line which was not disturbed. It is claimed, however, that damages should have been allowed or assessed for the easement remaining, because at some future time the city may require the company to shift its pipe line or remove it, and therefore the assessment should have'embraced this contingency. In support of this, Denver City I. & W. Co., v. Middaugh, 12 Colo. 434, 21 Pac. 565, 13 Am. St. 243 is relied upon. The'case is not in point. True, in assessing damages in condemnation proceedings, all damages present and prospective, that are the natural, necessary or reasonable incident of the improvement for
By the decree of the trial court it was provided that petitioner pay the costs up to the time of, and including the filing of the report of the Commissioners, and that plaintiffs in error pay the costs incurred by them subsequent to the filing of such report. With respect to costs the statute, section 6598, Rev. Stat., 1908, provides: “The costs of the proceedings up to and including the filing the report of the Commissioners shall be paid by the city, and as to any costs caused by subsequent litigation the costs shall be paid by the losing party.” Counsel for plaintiffs in error contend that this provision is unconstitutional, for the reason that requiring a respondent in condemnation proceedings to pay any part of the costs is an infringement of his constitutional right to full and just compensation for taking and damaging his land. As applicable to this case we think not. If either party is dissatisfied with the award of the Commissioners, objections therto may be filed. If this course is pursued a new issue, so to speak, is presented, namely, whether the award should stand, and there can be no valid objection to taxing the costs in such proceedings to the losing party, although he be the respondent. He takes the chances when objections are interposed to the report if he contests them, of having them sustained, wholly or in part, and when he does so and is rightfully defeated, he ought to pay the reasonable costs entailed by such proceedings. This is a different proposition from taxing him with any part of the costs down to the time the Commissioners make their report, as that would reduce the amount of
„ Delores Canal Co. v. Hartman, 17 Colo. 138, 29 Pac. 378, and the D. L. W. & P. Co. v. Howe, 49 Colo. 256, 112 Pac. 779, are not in point. Those cases involved the question of costs under.the general eminent domain act.
The judgment of the District Court is affirmed.
Judgment affirmed.
Decision en banc.
Mr. Justice Hill not participating.