City and County of Denver v. Glendale Water and Sanitation Dist., 19679

• Decision Date: 25 March 1963
• Docket Number: No. 19679,19679
• Citation: 152 Colo. 39,380 P.2d 553
• Parties: CITY AND COUNTY OF DENVER, a municipal corporation, Plaintiff, in Error, v. GLENDALE WATER AND SANITATION DISTRICT, a municipal corporation, Defendant in Error.
• Court: Colorado Supreme Court

Page 553

380 P.2d 553

152 Colo. 39

CITY AND COUNTY OF DENVER, a municipal corporation Plaintiff, in Error, v. GLENDALE WATER AND SANITATION DISTRICT, a municipal corporation, Defendant in Error.

No. 19679.

Supreme Court of Colorado, En Banc.

March 25, 1963.

Rehearing Denied April 22, 1963.

Donald E. Kelley, Earl T. Thrasher, Denver, for plaintiff in error.

Cranston & Arthur, Denver, Shivers, Banta & McMartin, Englewood, for defendant in error.

FRANTZ, Chief Justice.

Whatever may form the foundation of its claim for relief, in final analysis this is a suit brought by Denver against Glendale Water and Sanitation District (designated herein as the 'Sanitation District'), seeking to enjoin the latter from continuing with the construction of a sewage disposal plant, on the ground that, when it becomes operational, it will deposit sewage, filth, waste and unwholesome matter in the channel of Cherry Creek, to be carried by that stream through Denver. A judgment adverse to Denver is attacked here by writ of error.

As grounds for reversal Denver maintains (1) that the order for change of venue from the City and County of Denver to Arapahoe County was erroneously made, and (2) that the entry of a judgment in favor of the Sanitation District and against Denver was contrary to the evidence and the law applicable thereto.

Denver had instituted its suit for injunction in the district court of Denver and forthwith the Sanitation District had applied for a change of venue, relying on subsections (a) and (c), Rule 98, R.C.P. Colo., for support of its motion. The Sanitation District maintained that it was a utility within the meaning of subsection (a), and that it was a resident of Arapahoe County, where its office and property were located, and in which it would solely conduct its business, and where it was served with process, within the language of subsection (c).

It was the position of Denver that subsection (a) placed venue in the district court of Denver, pinning its argument upon the italicized language of subsection (a) following:

'All actions affecting property, franchises, or utilities shall be tried in the county in which the subject of the action, or a substantial part thereof, is situated.'

Since Cherry Creek and its bed and banks are the property alleged to be affected by Denver's suit, and the creek flows past Glendale to and through Denver, the latter contends that the action was properly commenced in the Denver district court.

We are convinced that, under both subsections, the venue of the action was appropriately changed to Arapahoe County. And Denver can find no solace in the language of Rule 98 (a) upon which it relies.

The Sanitation District is organized to serve the sewer needs of the inhabitants of the Town of Glendale. Its sewage disposal plant will be located wholly within the confines of the town. Service of process was made upon the Sanitation District in Arapahoe County.

Is the Sanitation District a utility? By virtue of the language employed in City of Englewood v. City and County of Denver, 123 Colo. 290, 229 P.2d 667, we hold that the Sanitation District is a municipal utility. Being such, it should have been sued in the county in which it was located. Rule 98(a), R.C.P.Colo.

And under Rule 98(c), the suit should have been commenced in Arapahoe County. In ascertaining the venue of an injunctive proceeding, the court should probe for the primary purpose of the suit. If the suit for injunction is not ancillary--and in this case it is not--, and if the decree sought would operate as a restraint upon the person, it is clearly an action in personam. Kirby v. Union Pac. R. R. Co., 51 Colo. 509, 119 P. 1042, Ann.Cas.1913B, 461; Sorenson v. Norell, 24 Colo.App. 470, 135 P. 119; Everett v. Board of Sup'rs of Pottawattamie County, 93 Iowa 721, 61 N.W. 1062.

There is no merit in the contention of Denver that this is an action affecting property. The nature of the suit, and of the decree demanded, remove it from the ambit of the language of the rule to which Denver resorts. Kirby v. Union Pac. R. R. Co., supra. At best, property is indirectly affected. But that is not sufficient to establish venue for a suit affecting property.

When Denver asked that the court enjoin the further construction of the sewage disposal plant, in order to prevent the contamination of the waters of Cherry Creek after the plant became operative, any decree of the court pursuant to such complaint would act upon the builder of the plant. Cessation of the construction of the plant by the builder was the objective of the suit. If the trial court ordered the builder to cease construction, such order, of course, would indirectly affect the sewage disposal plant.

Concerning Denver's contention, we merely state that the property immediately indirectly affected, in the event a decree would be entered ordering the builder to cease construction, would be the sewage disposal plant. Denver, on its own theory, would only be affected if the plant were built, which would be one step farther removed, and in this respect Denver's position becomes obviously untenable.

We conclude that the venue of the action was properly transferred from the City and County of Denver to the County of Arapahoe. A proper application for a change of venue, timely made, leaves the trial court no alternative; it should order the change.

Going to the merits of this case, we may say that an appropriate assessment of the judgment of the trial court in this case could be given in the words of this court in reviewing the denial of injunctive relief in Blunck v. Strachan, 53 Colo. 222, 124 P. 348:

'The trial court seems to have taken the position that there was not only a conflict of evidence, the preponderance of which was in favor of the defendant, but that there was, as well, a...