Boxberger v. State Highway Com'n

• Decision Date: 08 December 1952
• Docket Number: No. 16609,16609
• Parties: BOXBERGER v. STATE HIGHWAY COMMISSION.
• Court: Colorado Supreme Court

Page 920

251 P.2d 920

126 Colo. 526

BOXBERGER v. STATE HIGHWAY COMMISSION.

No. 16609.

Supreme Court of Colorado, en Banc.

Dec. 8, 1952.

Rehearing Denied Jan. 5, 1953.

Alden T. Hill, Ralph H. Coyte, Robert H. Darden, Fort Collins, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., H. Lawrence Hinkley, Deputy Atty. Gen., and Edward L. Higbee, Asst. Atty. Gen., for defendant in error.

HOLLAND, Justice.

United States Highway No. 185, more commonly known as the North Washington road from Denver to Cheyenne, intersects state Highway No. 14, running east and west from Fort Collins to Ault. At this intersection a traffic circle has been constructed by the state highway department. Plaintiff in error, to whom we will herein refer as Boxberger, in 1944, acquired a quarter section of land at the northeast corner of this intersection. His land abutted U. S. Highway No. 185 on the west and state Highway No. 14 on the south. It is alleged that on December 4, 1946, the state highway advisory board of the state highway department, to which we will refer as highway department, by resolution approved by the Governor, designated a portion of Highway No. 185 as a 'freeway.' This designation, according to common usage and statutory provisions, requires limitation of the rights of ingress to, and egress from, adjoining properties, which, under the provisions of the pertinent statute, may be acquired by purchase or condemnation.

In 1947, the state highway department, by a deed of conveyance, acquired a part of Boxberger's right of access to Highway No. 185 and also along state Highway No. 14 on the south. An action filed by Boxberger to set aside that deed for want of consideration is now pending on remand from this court. Boxberger v. State Highway Dept., Colo., 250 P.2d 1007.

On July 27, 1949, the highway department filed this action to condemn all of the remainder of Boxberger's right of egress from his land to Highway No. 185. In the complaint it is alleged that funds had been allocated for the project, which included relocation, reconstruction, alteration and improvement of a portion of said Highway No. 185; that it was necessary to deny ingress to and egress from the lands of Boxberger; that by virtue of the resolution heretofore mentioned, that a portion of the highway be designated as a 'free way' in order to reduce traffic hazards and for other purposes, and for that reason such rights of Boxberger's access be condemned; and that the compensation to be paid, if any, for the rights of access sought to be appropriated and condemned herein, could not be agreed upon between the petitioner and respondent. In this action also, it was sought to condemn certain property and access rights of one Kath, lying across said highway to the west.

Boxberger filed a demand for a separate jury trial from that of the other respondent, Kath, which motion was denied together with Boxberger's motion to dismiss. The highway department filed motion to amend its petition by excepting access by way of a twelve-foot gate located seventeen feet south of the north property line, which motion was granted and the petition so amended. Boxberger filed his affidavit in support of his motion to dismiss, attacking the validity of the act passed by the 1943 session of the Legislature under which this action was instituted, contending that the legislative act was not in accordance with the provisions of the State Constitution. His other motions were to strike the amendment from the petition and for a more definite statement.

Trial was had in December of 1949, and the verdicts of the jury, concerning which complaint is made, are as follows:

'That the damage to the residue of the land including the denial of access as hereinabove set forth is as follows: $ None.

'And that the amount and value of the benefits to the residue of said land is as follows: $ None.'

Error is specified as to the overruling of the motions, which presents the question as to whether or not such pleadings are permissible under eminent domain proceedings, or do the rules of civil procedure control.

The points relied upon by Boxberger for reversal are: That he was deprived of his property without compensation; that inadequate and wrong instructions were given on damages; that he was wrongfully compelled to have commingled trial with another respondent; that the effective statute does not authorize the taking of his right of access; and that there is no proof of any decision of the highway department or its engineer authorizing the exclusion of access through the present gate from the access rights taken and if such decision was made, that it was arbitrary and capricious.

Boxberger testified concerning opportunities to sell land adjoining the highway for commercial purposes, which were lost to him by the taking of the right of access. In addition to his testimony, four realtors from Fort Collins qualified as experts and gave testimony as to the value of the right of access being taken, to the general effect that Boxberger's farm, as a farm, suffered loss of value in the sum of $3,500 as a result of the denial of access; that the loss of right to sell commercial sites along the road was fixed at $10,000 by one realtor; another placed the value of the right of access between $15,000 and $20,000; another fixed the commercial tract sales possibilities at from $12,000 to $13,000; and still another put the value of the access rights at $10 per front foot; that taking away the right of access cut the value of the farm 25 per cent, the farm being valued at from $56,000 to $60,000. Two witnesses for the highway department testified as to values. However, one of these witnesses thought it was a disadvantage to be on a free way, but did not attempt to place the value of access rights; and neither of these witnesses gave any evidence indicating any benefit from the improvement. The case thus stood without any evidence of any special benefit to the land by the establishment of the free way as distinguished from a highway.

We find no evidence to the effect that such access rights had no value, while, on the other hand, there is ample evidence from which some value could be established, and it cannot be disputed that the verdict of the jury deprives Boxberger of such rights without any compensation. We believe the outstanding reason for this result is to be found in the manner of the giving and refusing of instructions, however, not ignoring other factors that would easily tend toward such a result.

The propriety of the filing and disposition of motions in this, a condemnation proceeding, has been raised. A consideration of the pertinent statutes and our rules of civil procedure discloses uncertainty in this regard. Counsel for the highway department suggests that it is desirable that this court clarify the law relating to the pleadings and motions in condemnation proceedings. Decisions of this court prior to the adoption in 1941 of the present rules of civil procedure seem to indicate that the pleadings in condemnation matters are limited to the petition. Denver & Rio Grande R. Co. v. Griffith, 17 Colo. 598, 31 P. 177; Knoth v. Barclay, 8 Colo. 300, 6 P. 924; People v. District Court, 78 Colo. 526, 242 P. 997. No doubt that what was said in these decisions was based largely on what is said in the Eminent Domain Act, section 12, chapter 61, '35 C.S.A., which treats of 'Intervention by third party--Cross-petition--Hearing', wherein, in speaking of the right of an interested person not made a party to the suit, it is said such person may file a cross-petition. The statute then reads, 'Except such cross-petition there shall be no written pleadings on the part of any party to the proceeding, but at the hearing, provided for in section 6 of this chapter, the court shall hear and dispose of all objections that may be raised touching the legal sufficiency of the petition or cross-petition, or the regularity of the proceedings...