MADALINE M. WELCH v. CITY AND COUNTY OF DENVER, ET AL.
No. 19,007.
Supreme Court of Colorado
February 16, 1960
Rehearing denied February 29, 1960
349 P. [2d] 352
Under the uncontradicted material facts in evidence a clear case of liability against Koehler was shown. There is no evidence in this record to support a finding that Hurd was an independent contractor.
The distinction in law between a servant or agent of a principal and an independent contractor is clearly set forth in Farmers Reservoir and Irrigation Co. v. Fulton Investment Co., 81 Colo. 69, 255 Pac. 449. The relationship between Hurd and Koehler with reference to the subject matter of this action was clearly that of principal and agent.
The judgment is reversed with directions to enter judgment in favor of Waldens against Koehler for $376.00 plus interest and costs.
No. 19,007.
MADALINE M. WELCH v. CITY AND COUNTY OF DENVER, ET AL.
(349 P. [2d] 352)
Decided February 16, 1960. Rehearing denied February 29, 1960.
Mr. DUKE W. DUNBAR, Attorney General, Mr. JOHN P. HOLLOWAY, Assistant, Mr. JOSEPH M. MONTANO, Assistant, for defendants in error Mark U. Watrous and State Highway Commission.
Mr. DONALD E. KELLEY, Mr. EARL T. THRASHER, Mr. HANS W. JOHNSON, for defendant in error City and County of Denver.
En Banc.
MR. JUSTICE MOORE delivered the opinion of the Court.
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PLAINTIFF in error will be referred to as Welch. Defendants in error will be mentioned as defendants, except where the reference is to less than all of them, in which event they will be referred to as The City,
Welch filed the action in the district court of the City and County of Denver for the purpose of securing a declaratory judgment determining the rights of the parties as affected by two Ordinances adopted by the Council of the City of Denver (302 and 316, Series 1958). The ordinances provide in pertinent part, “That the Council of the City and County of Denver hereby gives and grants unto the Department of Highways of the State of Colorado the right and privilege to construct and maintain a street and highway in, upon, over, along and across the following described real property situate, lying and being in the City and County of Denver, State of Colorado, to wit:” (Here follows a detailed description of a narrow strip of land abutting on Colorado Boulevard and extending along the eastern boundary of City Park.) After this description the ordinances contain the following pertinent language:
“* * * in connection with and as a part of the improvement or project for improving a portion of State Highways No. 153 and No. 2 which pass through the City and County of Denver, or what is known as Colorado Boulevard, the said improvement or project being known and designated as D.U. 029-1 (5).”
Welch, a resident and taxpayer of the City, alleged in her complaint that the proposed grant of the park land to the Department of Highways was void for the following reasons:
That the ordinances violated
Under well established principles we are not concerned in this action with the allegations last mentioned, and consider them no further other than to say that in the absence of a showing of bad faith on the part of the agency acquiring property for highway purposes, the determination of the administrative body as to the necessity for the particular acquisition will not be disturbed by the courts. 18 Am. Jur. 733, Sec. 106, et seq.
The issues were those of law since there was no dispute in any material facts.
The trial court upheld the ordinances and entered judgment accordingly. Welch seeks review by Writ of Error.
The pertinent provision of the Charter of the City as adopted by the electorate May 17, 1955, is:
“No portion of any park land now belonging to or hereafter acquired by the City and County of Denver shall be sold or leased at any time * * *.”
Counsel for Welch argues:
(1) That the City Council “was powerless to change the status of dedicated park land without a vote of the eligible voters” of the City; and
(2) That “the common law” of the State of Colorado requires that dedicated park land shall be used exclusively for park purposes and is held by the City in trust for those purposes.
Counsel for Defendants concede that the City is precluded by applicable charter provision from the voluntary sale or lease of public park lands, and further concede that said lands “may be subject to a municipal common law trust for the use of the people of the City.” It is contended, however, that neither the charter provisions nor an alleged municipal common law trust can impose restrictions upon the State seeking to acquire the same for the public purpose of highway construction.
Where a municipality holds title to land that has been dedicated to long continued use for park purposes and the Charter of the City provides that park land owned by the City shall not be leased or sold at any time; does such Charter provision prevent the State of Colorado, under its power to condemn lands for highway purposes without restriction, from acquiring such land for that purpose?
The question is answered in the negative.
The State has power to acquire, by condemnation or otherwise, lands of a municipal corporation already devoted to public uses. This power by
“INCLUSION OF STREETS IN HIGHWAYS. For all of the purposes of this article, and, with respect to state highways, for all of the purposes of sections 120-6-1 to 120-6-10, state highways or county highways may be designated, established and constructed in, into or through cities and counties, cities or towns, when such highways form necessary or convenient connecting links for carrying state highways or county highways into or through such cities and counties, cities or towns, and for such purposes the department of highways and the boards of county commissioners of the several counties may condemn or otherwise acquire rights of way and access rights * * *.”
“DIVISION OF AUTHORITY OVER STREETS. The jurisdiction, control and duty of the state, cities, cities and counties, and incorporated towns with respect to streets which are a part of the state highway system shall be as follows:
* * *
“(11) The department of highways is authorized to acquire rights of way by purchase, gift or condemnation
for any such streets, highways, and bridges. Any such condemnation proceeding shall be exercised in the manner provided by law for condemnation proceedings to acquire lands required for state highways * * *”
These statutory provisions grant express authority to the Department of Highways to condemn lands required for Highway purposes.
In Town of Greenwood Village v. District Court, 138 Colo. 283, 332 P. (2d) 210, the Department of Highways sought to condemn lands partially owned by the municipality and devoted to public use for highway purposes. It was there held, inter alia, that valid statutory authority exists under which the Department of Highways can lawfully condemn public or private property within a municipality for the purpose of continuing state highways into or through cities or towns. Although park lands were not there involved, the principle is identical as far as acquisition by the state is concerned.
In Burns v. Metropolitan District — Mass. — 92 N.E. (2d) 381, it was proposed to erect a public way which was to be located in part upon lands belonging to the City of Boston, which were dedicated park lands. Pertinent statutes prohibited the disposition of park lands except with the consent of the City expressed by a vote of the electorate. Residents of Boston alleged that it was unlawful for park lands to be used for a public way in the absence of such vote, and sought injunctive relief. The court said, inter alia:
“A decision for plaintiffs involves acceptance of the proposition that by (applicable statutes) the Commonwealth has subjected its power of eminent domain to the consent of the city, to be expressed, in certain circumstances by the vote of inhabitants. This proposition cannot be maintained * * *”
From the Colorado statutes above quoted, and the cases cited, it is clear that there are no limitations on the type of property that can be acquired by the State,
In the instant case, the State, through its Department of Highways, being vested with the power of eminent domain, acquired the lands in question from a governmental subdivision following negotiation, and confirmed by the City ordinances under attack.
It should be further pointed out that as a condition precedent to the institution of eminent domain proceedings, the law requires that an attempt be made by negotiation to agree upon the compensation to be paid for the lands sought to be acquired.
Where agreement was reached between the state and the city, why should the state be compelled to institute condemnation proceedings? By enacting the ordinances authorizing the use of park lands for highway purposes, all was accomplished by agreement that would otherwise have had to be accomplished by condemnation proceedings. The acts of the Council were in harmony with the well established rule of law announced by this Court in Chitwood v. City and County of Denver, et al., 119 Colo. 165, 201 P. (2d) 605, wherein ordinances relating to an exchange of property were alleged to be invalid. The complaining taxpayers argued that the City should not have purchased exchange property and inferred that the City should have resorted to condemna-
“We know of no rule that prevents parties who may become antagonists in a condemnation suit from making a settlement in advance of, as well as after, the bringing of an action. Delay, uncertainty and expense are thus avoided. Nor are we aware of any decision that holds that litigation must be undertaken at all costs or in any event * * * The general rule, that the avoidance of litigation, where possible, is to be commended, is applicable here.”
There is no merit to the argument advanced by counsel for Welch that the park land in question was held by the City under a common law trust and that by reason thereof the State of Colorado could not acquire the same in the manner shown by this record.
The judgment is affirmed.
MR. CHIEF JUSTICE SUTTON dissents.
MR. JUSTICE HALL did not participate.
MR. CHIEF JUSTICE SUTTON dissenting:
I respectfully dissent.
The parties to this action have stipulated that the land in question was held by Denver as trustee for park purposes only. Neither
Trust property is held, whether by an individual, pri-
This plaintiff‘s rights have been guaranteed by
As I read it,
It might be that had proper proceedings been conducted in court it would have been determined that the taking was not necessary, or that it could have been done cheaper by widening the highway on both sides, or on the east side instead of the west side only, as was done. In all of these matters the plaintiff had the right to be heard in court, and that right has been denied to her.
The City and County of Denver should have been the first to recognize its responsibility to refrain from sitting as both judge and jury on its own trusteeship. While this writ of error was pending it should not have risked the possibility that it would have to take back what it had disposed of, or restore at the taxpayers’ expense the many trees destroyed by its action.