City of Colorado Springs v. Stark

• Decision Date: 04 May 1914
• Docket Number: 7926.
• Citation: 57 Colo. 384,140 P. 794
• Parties: CITY OF COLORADO SPRINGS v. STARK.
• Court: Colorado Supreme Court

140 P. 794

57 Colo. 384

CITY OF COLORADO SPRINGS v. STARK.

No. 7926.

Supreme Court of Colorado

May 4, 1914

Error to District Court, El Paso County; James Owen, Judge.

Action by E. R. Stark against the City of Colorado Springs. From a judgment for plaintiff, defendant brings error. Affirmed.

C. L McKesson, Henry C. Hall, City Atty., and J. L. Bennett, Asst City Atty., for plaintiff in error.

Clarence M. Hawkins and John R. Smith, for defendant in error.

BAILEY J.

On February 15th, 1912, E. R. Stark, defendant in error, filed an amended complaint in the district court of El Paso county, against the City of Colorado Springs plaintiff in error, alleging damages to his property abutting on Pike's Peak Avenue in that city, caused by the construction of a subway in such avenue, under the tracks of the Atchison, Topeka & Santa Fé Railway Company, hereinafter called the company. The facts are undisputed. Pike's Peak Avenue is one of the main thoroughfares of the City of Colorado Springs, extending from the business district east to the corporate limits, and was crossed by the tracks of the company at the time its road was constructed through the city. The crossing is near the company's passenger depot, which is situated approximately 200 feet south thereof and on the west side of the right of way. Because of increased business of the company and the nearness of its depot to the crossing, Pike's Peak Avenue, which is crossed by the railroad there at grade, was at that point closed to traffic a large part of the time. In the spring of 1909 the city passed an ordinance providing for the vacation of a portion of Pike's Peak Avenue and another street and authorizing the company to construct a subway at the crossing. The property involved consists of three contiguous lots on the north side of Pike's Peak Avenue, north of the subway, adjacent to the company's right of way and on the west side thereof. The subway, as constructed by the company under and by virtue of the ordinance, was 50 feet wide, in the center of Pike's Peak Avenue, beginning at a point 250 feet west of the west line of its right of way, passing under the tracks with a clearance of about 12 feet and having a grade of approximately eight per cent. This left portions of the street about 45 feet wide on each side of the excavation, which were graded and paved at from three to four and one-half feet higher than the established grade along the south line of the lots, that is, graded practically on a level from where the subway begins to dip to the railroad tracks. A bridge 38 feet wide was constructed over the east end fo the subway, next to the west side of and parallel with the tracks, also a cement wall 75 feet long and 6 feet high, extending north from the inner side of the bridge, along the right of way and nearly paralleling the east side of plaintiff's property, and across the sidewalk running east and west in front thereof, on Pike's Peak Avenue. Thus the lots were about four feet lower than the newly established street grade, and from two to twelve feet higher than the subway grade. Free and easy access to them from one side, by the sidewalk which had therefore extended east across the tracks, was made impossible, and ingress and egress were substantially impeded. For the damage thus occasioned plaintiff sued the city.

The city demurred to the complaint generally, and specifically for the reason that the company was a necessary party. The demurrer was overruled, and the defendant relies for a defense on the ground that the company alone is liable. At the close of plaintiff's evidence the city moved for nonsuit, because the evidence was insufficient to sustain a verdict against the defendant; for the further reason that the city did, or omitted to do, no act for which it was liable to the plaintiff; and that the evidence showed that the company alone was liable for the damage which plaintiff had sustained. This motion was overruled and exceptions reserved. The jury returned a verdict for plaintiff for $4,000. A motion for a new trial was overruled. Judgment was entered upon the verdict, to review which the defendant brings the case here.

Counsel agree that a single question is presented for determination. Is the city liable to the defendant in error for injury to his property resulting from the construction of the subway of Pike's Peak Avenue by the company?

Section 15 of article 2 of the constitution provides that 'private property shall not be taken or damaged, for public or private use, without just compensation.' All of our decisions involving a construction of this provision in the class of cases under consideration are in harmony. The difficulty arises in fixing liability in individual cases. The facts disclosed are closely analagous to those in Pueblo v. Strait, 20 Colo. 13, 36 P. 789, 24 L.R.A 392, 46 Am.St.Rep. 273. The only ground upon which counsel for plaintiff in error challenge that authority is that the question of liability of the company was not there raised. It is not apparent how that can materially...