Boxberger v. State Highway Dept., 16608
| Citation | 250 P.2d 1007 |
| Decision Date | 17 November 1952 |
| Docket Number | No. 16608,16608 |
| Parties | BOXBERGER v. STATE HIGHWAY DEPARTMENT. |
| Court | Supreme Court of Colorado |
Alden T. Hill, Ralph H. Coyte, Fort Collins, for plaintiff in error.
Duke W. Dunbar, Atty. Gen., H. Lawrence Hinkley, Deputy Atty. Gen., Edward L. Higbee, Asst. Atty. Gen., for defendant in error.
Plaintiff in error, as plaintiff in the trial court, on April 26, 1950, filed his complaint alleging, in substance: That on or about June 19, 1947, he executed and delivered to the state highway department of the state of Colorado his deed to access rights to and from a portion of his farm which bordered on state highway No. 185; that said deed was duly recorded; that there was no consideration for said deed; that it was obtained by defendant, which orally made certain representations to plaintiff that the balance of his access rights to the state highway, other than that conveyed by the deed, would not be taken by defendant; that plaintiff would have the right to construct a filling station with access to and from the highway at any other adjacent point on his farm to the highway, where such right was not conveyed by said deed; that in reliance on the representations, the deed was executed; that said representations have proved false, and there has been a complete failure of consideration for the deed; that the deed was delivered through a mutual mistake and misunderstanding; that rescission and cancellation has been demanded of defendant by plaintiff; and plaintiff prays for a decree cancelling and rescinding the deed, or for declaratory judgment to the effect that the said deed is ineffective and void, and for any other proper relief.
Through the Attorney General, defendant filed a motion to dismiss the action on account of insufficient facts to support a claim; that the state highway department is a body corporate and a division of the executive department of the state of Colorado; that this suit is a suit against the state in its sovereign capacity; that the state and the department are immune from suit whether to rescind the deed or contract, or in tort or otherwise, or at all; that no means exist to realize upon any judgment against the state of Colorado or the department, except by legislative action.
The trial court determined that the motion to dismiss was decisive of the case; that no authority exists in Colorado for such a suit without consent; and finally, sustained the motion to dismiss.
Plaintiff seeks reversal on the ground that this suit is not against the state of Colorado; that immunity from suit does not apply to a matter such as is involved herein; that express or implied consent to sue has been granted; and that no other relief is available to plaintiff.
From the state of the pleadings before us, what may or may not be established upon...
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Bertrand v. Board of County Com'rs of Park County
...the doctrine of immunity were created both legislatively, see 1963 C.R.S. § 36-1-1(1)(b), and judicially, see Boxberger v. State Highway Dept., 126 Colo. 438, 250 P.2d 1007 (1952). For purposes of this brief discussion, however, it is reasonable to conclude that the general common law rule,......