Atkinson v. City and County of Denver

• Decision Date: 14 June 1948
• Docket Number: 15940.
• Citation: 118 Colo. 322,195 P.2d 977
• Parties: ATKINSON v. CITY AND COUNTY OF DENVER et al.
• Court: Colorado Supreme Court

195 P.2d 977

118 Colo. 322

ATKINSON v. CITY AND COUNTY OF DENVER et al.

No. 15940.

Supreme Court of Colorado, en Banc.

June 14, 1948

Error to District Court, City and County of Denver; George A Luxford, Judge.

Action by Paul L. Atkinson against the City and County of Denver Robert L. Kirschwing, as Manager of Safety and Excise, August Hanebuth, as Chief of Police, and others, for declaratory and injunctive relief and damages. To review a judgment of dismissal, plaintiff brings error.

Affirmed.

Omar E. Garwood, of Denver, for plaintiff in error.

J Glenn Donaldson and Abe L. Hoffman, both of Denver, for defendant in error City and County of Denver.

Worth Allen, of Denver, for other defendants in error.

JACKSON Justice.

Plaintiff in error, who was plaintiff in the trial court, brought suit against the City and County of Denver, and named various individual defendants. The latter are officers or employees of Denver. Plaintiff sought: 1. A declaratory judgment holding a certain ordinance, No. 54, passed by the city council of the City and County of Denver in November 1943, to be unconstitutional and void; 2. A temporary and permanent injunction restraining defendants from shooting, killing, harming or destroying plaintiff's squirrels on plaintiff's premises or elsewhere, and from threatening to destroy same, and restraining them from discharging firearms at domestic animals in the vicinity of plaintiff's residence; and 3. Damages in the sum of $1,000. The trial court held the city ordinance valid and constitutional; denied the application for injunction and claim for damages; and entered a judgment of dismissal. Plaintiff brings the cause here seeking a reversal of the judgment.

By section 1 of the ordinance that gave rise to this litigation the city council determined that squirrels had become very numerous in those portions of Denver comprising councilmanic districts 4, 5 and 6; that in those districts they destroy annually thousands of small birds, birds' eggs and nests; that they cause hundreds of dollars of damage annually to property and buildings, and injure or destroy many trees, shrubs and gardens each year; that as a result of their great number and destructive tendencies, squirrels are declared to be a nuisance in the three districts named.

Section 2 of the ordinance provides that upon complaint to the Department of Safety and Excise that squirrels are committing in those three councilmanic districts the depredations described in section 1, the department is authorized and directed to investigate such complaint and, if found to be true, to take such action as shall be deemed expedient, proper and advisable effectively to abate said nuisance or correct said condition.

The court found:

1. That plaintiff made pets of squirrels, fed them and raised some. But none of the squirrels which he claimed belonged to him, which were killed by the police officers, were confined or kept on his premises. He claimed to own some eighteen or twenty squirrels that roamed the neighborhood for blocks around without any mark of identification. They were therefore incapable of indentification except possibly by plaintiff.

2. The evidence showed that the squirrels do destroy, injure and damage trees, gardens, shrubs, awnings, bird nests, young birds, thousands of bird eggs every season, and when numerous constitute a nuisance.

3. That in November of 1943 the Council found that in aldermanic districts Nos. 4, 5 and 6 squirrels running at large were so numerous and so destructive as to be a nuisance, and that ordinance No. 54 was then enacted authorizing the defendant Manager of Safety and Excise to investigate the facts where complaint was made, and 'to take such action as shall be deemed expedient to abate said nuisance.'

4. During the times covered by the pleadings and the evidence squirrels in these districts were so numerous, and caused so much property damage and annoyance as to constitute and be a nuisance.

5. That under the Constitution and laws of Colorado, a municipality has the power to abate such nuisance; that this power was exercised by the council in enacting ordinance No. 54, and that the ordinance is valid and constitutional, and the fact that it was made to apply to only three aldermanic districts instead of the nine, which make up the entire city, is not important or relevant because ordinances that apply only to parks or parts of the city have been enacted and uniformly sustained by the courts.

6. That a squirrel is by nature a wild animal. The statutes of Colorado provide that the ownership of wild animals, such as squirrels, is in the state of Colorado. Plaintiff did not obtain permission from the state to acquire or possess the squirrels; therefore, he had no property rights in the squirrels involved in this proceeding and has no cause to complain. ' 35 C.S.A. c. 73, §§ 29, 31. People v. Williams, 61 Colo. 11, 15, 155 P. 323.

7. That under the authority of the ordinance Denver's department of safety and excise proceeded to enforce it and shot and killed a number of squirrels in the three named councilmanic districts, among which were several which plaintiff claimed belonged to him. That no squirrels were killed by the police officers on plaintiff's premises.

8. Police shot and killed squirrels that they found running at large in said districts after complaints had been made of their activities, and what police officers did was done in the performance of their duty as governmental agents for the protection of the public and property rights in general.

9. That the burden was on plaintiff to prove his ownership of the squirrels in question at the time and place they were killed; that the evidence fails to prove this, but it does show that the squirrels were killed while running at large as wild animals; that the burden was on plaintiff to prove that the said squirrels did no damage and were not a nuisance. This he failed to do, for the evidence disclosed that the squirrels did cause injury and substantial damage to property, and disturbed and annoyed people in the peaceful enjoyment of their homes; that the ordinance is a proper instrument for the regulation of such a nuisance in a just and practical way, and its enforcement abates the nuisance, stops the annoyance and disturbance, and in so doing promotes the peace and comfort and happiness of the people of Denver.

10. All of the issues are found to be in favor of the defendants and against the plaintiff.

Plaintiff's first three specifications of error relate to the three portions of the complaint, namely: (1) That the court erred in holding ordinance No. 54 valid and constitutional, and (2) in denying the application for injunction; and (3) in refusing an award of damages. The fourth specification alleges error in dismissing the cause, and the fifth that the court erred in entering judgment in favor of defendants and against plaintiff. The sixth specification is, 'The trial court erred in holding that plaintiff's squirrels were killed while running at large as wild animals,' and the seventh reads, 'The trial court erred in holding that plaintiff's squirrels caused damage and injury, when in truth and fact the evidence showed no damage or injury by plaintiff's squirrels.' These specifications give a clearer idea of plaintiff's theory.

Plaintiff, although not claiming that squirrels are by nature domestic animals (domitae naturae) and admitting that in their native state they are wild animals (ferae naturae), argues that wild animals are themselves divided into two classes: 1. Those that remain wild; and 2. Those that have become reclaimed or domesticated. It is in the latter class that he places the eighteen to twenty squirrels which the trial court, in its findings, found plaintiff claimed to have domesticated. By virtue of his 'taming' them, he claims a property right in them. He testified that he had been offered $50 for a pair of squirrels, and that on that basis the squirrels which he had domesticated and could identify and call by name were valued at $450. He admitted, however, that he had not undertaken to sell any of the squirrels which he had so domesticated because of the prohibition contained in a state law, concerning which he had been informed by the State Fish and Game Department. The law to which plaintiff referred in his testimony, but to which his counsel makes no reference in his brief, includes sections 29, 31, 89, 93, 198, chapter 73, '35 C.S.A. Sections 29 and 89 supra, read as follows:

'§ 29. All game and fish now or hereafter within this state not held by private ownership legally acquired, and which for the purposes of this law shall include all the quadrupeds, birds and fish mentioned in this law, are hereby declared to be the property of the state, and no right, title, interest or property therein can be acquired or transferred, or possession thereof had or maintained except as

...