Board of County Com'rs of Weld County v. Slovek, 84SC414

• Citation: 723 P.2d 1309
• Decision Date: 25 August 1986
• Docket Number: No. 84SC414,84SC414
• Parties: The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF WELD, State of Colorado, Petitioner-Defendant, v. John P. SLOVEK, Sr., John P. Slovek, Jr., Gary W. Slovek and Michael S. Slovek, Respondents-Plaintiffs.
• Court: Supreme Court of Colorado

Page 1309

723 P.2d 1309

The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF WELD State of Colorado, Petitioner-Defendant, v. John P. SLOVEK, Sr., John P. Slovek, Jr., Gary W. Slovek and Michael S. Slovek, Respondents-Plaintiffs.

No. 84SC414.

Supreme Court of Colorado En Banc.

Aug. 25, 1986.

Thomas O. David, Weld Co. Atty., Lee D. Morrison, Bruce T. Barker, Asst. Co. Attys., Greeley, for petitioner-defendant.

Anderson, Calder & Sandman, P.C., Gary L. Calder, Aurora, for respondents-plaintiffs.

LOHR, Justice.

We granted certiorari to review the measure of damages utilized by the Colorado Court of Appeals for negligent injury to real property in Slovek v. Board of County Commissioners, 697 P.2d 781 (Colo.App.1984), and to determine whether the award of costs against the defendant Board of County Commissioners of Weld County (county) in that case was permissible. After a trial to the court, the Weld County District Court awarded judgment for $15,550 in damages, plus costs, in favor of the plaintiff property owners, the Sloveks, and against the county based upon the county's negligence in allowing river water to enter a gravel pit on its property, overflow from that pit, and inundate much of the Sloveks' property. The trial court assessed damages based upon the difference between the market values of the Sloveks' property before and after the flooding. The Sloveks appealed, asserting, among other things, that the damages should have been measured by the cost of restoring their property to the condition existing before the flooding plus additional amounts for their loss of use and enjoyment of the property and for their annoyance and discomfort. The court of appeals agreed and remanded the case to the district court for a redetermination of damages. On cross-appeal, the court of appeals also rejected the county's challenge to the award of costs. We modify and affirm the court of appeals' judgment concerning damages, affirm the award of costs, and remand this case for further proceedings.

I.

A trial to the court took place in July 1982. The following statement of the facts comes from the oral findings made by the district court and, where necessary to supplement those findings, from the evidence presented at trial.

Plaintiffs John P. Slovek, Sr., and his sons, John P. Slovek, Jr., Gary W. Slovek and Michael S. Slovek, jointly own approximately twenty-two acres of land in Weld County. The St. Vrain River runs from west to east through the northerly part of their property. The great majority of the Sloveks' land lies south of the river, and John P. Slovek, Sr., resides on that part of the property. The county owns land south of the river and immediately to the west of and upstream from the Sloveks' property. On its land, the county operates a gravel pit. A narrow dike separates a pond in the gravel pit from a pond located on the Sloveks' property and used by them for fishing and other recreational purposes.

Sometime in 1978 or 1979, the county cut an opening in the river bank on its property to allow water to drain into the river from the pond that had formed in the gravel pit area. On May 1, 1980, high water in the St. Vrain caused a reversal of the flow through the breach so that water poured into the county's pond from the river. Eventually, the county's pond overflowed, and water poured over the dike separating the county's pond from the Sloveks' property. The water overflowed the Sloveks' pond and washed away a fence, a number of trees and some fish that had been stocked in the Sloveks' pond. In addition, the flood waters deposited silt and debris over a large portion of the Sloveks' land and in the Sloveks' pond, eroded a portion of the banks of the pond, and damaged the dike separating the properties, the dike containing the Sloveks' pond and a third dike on the Sloveks' land. The trial court concluded that the county was negligent in the manner in which it maintained the breach in the river bank and that this negligence resulted in the flood of water that damaged the plaintiffs' property. ¹

Concerning the damages to be awarded, John P. Slovek, Jr., testified as to the value of fish, trees and fencing lost, and an engineer appearing on behalf of the Sloveks testified that it would cost between $68,900 and $119,300, depending on the extent of the sedimentation in the Sloveks' pond, to repair all of the damage to the land caused by the high water. The engineer also testified that an additional $93,000 would be required for riprap to protect against future erosion of the Sloveks' river banks (see footnote 1). The district court determined that the value of the fence, fish and trees lost was $1,550. The court's award for these losses is not at issue here. However, the court rejected the Sloveks' argument that the proper measure of damages to the rest of the property--to the land itself--was the cost of restoring the property to the condition existing prior to the flood. Instead, the trial court concluded that the proper measure of damages was the reduction in the market value of the Sloveks' property caused by the flood.

The county had presented no evidence concerning the cost to repair the land; the county's evidence on damages related only to the reduction in market value. An appraiser appearing on behalf of the county testified that the value of the Sloveks' property immediately before the flood was $56,000. For reasons that are unknown, the appraiser was not asked to state an opinion as to the value of the property after the flood. The trial court found that the appraiser's valuation actually was "a valuation of the property after the incident," apparently being persuaded of this fact by the closing argument of the Sloveks' counsel. ² In determining the value of the property prior to the flood, the trial court first noted that the purchase price of the property in 1978 was $64,500 and that Gary W. Slovek had testified that in his opinion the value of the property prior to the flood was $130,000 to $150,000. ³ The court then took "judicial notice that that was a period of rising real estate prices, but perhaps not rising as rapidly as the plaintiff who testified felt, and I find that the value of the property before the incident was $70,000." The trial court awarded the plaintiffs the difference in market value before and after the flood, or $14,000. In entering judgment, the court also awarded costs to the plaintiffs.

The court of appeals reversed the district court's award of damages, for the following reason:

We agree with plaintiffs' contention that where, as here, the property is a private residence and the plaintiffs' interest is in having the property restored, plaintiffs are entitled to those "cost of repair" damages proximately caused by defendant's negligence. The award of such repair costs will more effectively return plaintiffs to the position they were in prior to the injury.

697 P.2d at 783. The court of appeals also concluded that the plaintiffs might be entitled to damages for the loss of the use and enjoyment of the property and that John P. Slovek, Sr., as owner and occupant, might be entitled to damages for annoyance and discomfort. The court of appeals concluded, however, that it was unclear from the record "whether the court considered the availability of these damages to plaintiffs." Id. Accordingly, the court of appeals remanded the matter so that the district court could "award damages for those repair costs proximately caused by defendant's negligence, and, if the court determines that damages for loss of use and enjoyment and for annoyance and discomfort to John Slovek, Sr., have been adequately proved, the court should award such damages also." Id.

The court of appeals affirmed the district court's award of costs to the plaintiffs. Id. at 782. The county had argued that there was no legal authority for the imposition of costs in this instance. The court of appeals disagreed, concluding that "[w]here a public entity waives its sovereign immunity from suit, it may be subject to costs in the same manner as a private litigant." Id.

The county then filed a petition for certiorari, arguing that the court of appeals erred in reversing the award of damages and in affirming the award of costs. We begin with an examination of the issue of costs. ⁴

II.

C.R.C.P. 54(d) provides that "costs against the state of Colorado, its officers or agencies, shall be imposed only to the extent permitted by law." Counties are political subdivisions of the state, Beaver Meadows v. Board of County Commissioners, 709 P.2d 928, 932 (Colo.1985), so the rule applies when a county or its board of county commissioners is a litigant.

The county argues that there is no law that authorizes the imposition of court costs against the county in this case. In particular, the county notes that while the Colorado Governmental Immunity Act, §§ 24-10-101 to -118, 10 C.R.S. (1982 & 1985 Supp.), expressly permits a person to recover damages in tort from the state under certain circumstances, the act does not provide for the imposition of costs against the state. This means, the argument proceeds, that an award of costs cannot accompany an award of damages in an action such as the one before us.

Recently, in Lee v. Colorado Dept. of Health, 718 P.2d 221, 228-29 (Colo.1986), we examined the propriety of imposing costs on the state when it loses a negligence action brought under the Governmental Immunity Act. We concluded that "a public entity which has been sued pursuant to the Act may be taxed costs in connection with the judgment entered against it." Id. at 229. Our opinion in Lee is dispositive of this issue.

We affirm the award of costs. We consider next the issue of the appropriate measure of damages.

III.

A.

In Zwick v. Simpson, 193 Colo. 36, 572 P.2d 133 (1977), a trespass action, we were confronted with an issue concerning the appropriate measure of damages for injury to real property, and we...