City of Colorado Springs v. Crumb

• Decision Date: 25 September 1961
• Docket Number: No. 19417,19417
• Citation: 148 Colo. 32,364 P.2d 1053
• Parties: CITY OF COLORADO SPRINGS, Colorado, a Municipal Corporation, and Robert E. Alexander, Intervenor, Plaintiffs in Error, v. James C. CRUMB and Therese A. Crumb and Aaron Kitchen, Defendants in Error.
• Court: Colorado Supreme Court

Page 1053

364 P.2d 1053

148 Colo. 32

CITY OF COLORADO SPRINGS, Colorado, a Municipal Corporation and Robert E. Alexander, Intervenor, Plaintiffs in Error, v.James C. CRUMB and Therese A. Crumb and Aaron KitchenDefendants in Error.

No. 19417.

Supreme Court of Colorado, In Department.

Sept. 25, 1961.

F. T. Henry, Colorado Springs, for plaintiff in error, City of Colorado Springs.

Kenneth W. Geddes, Colorado Springs, for IntervenorRobert E. Alexander.

Murphy & Morris, Colorado Springs, for defendants in error.

McWILLIAMS, Justice.

The only issue to be resolved is the propriety of a certain injunctive order entered by the trial court.That order is as follows:

'It Is Therefore Ordered, Adjudged and Decreed, That OrdinanceNo. 2528 of the City Council of the City of Colorado Springs heretofore passed and approved on April 28, 1959, vacating Mount View Heights, 2nd Addition, to the City of Colorado Springs, in so far as it applies to Platte Avenue running in an Easterly direction from Circle Drive for a distance of about 3 1/2 Blocks, is therefore declared illegal, null and void, as in violation of constitutional guarantees against the taking of private property without the payment of just compensation and without due process of law.Defendant[Colorado Springs], its agents and representatives will be permanently restrained and enjoined from closing East Platte Avenue within the city limits from Circle Drive easterly for 3 1/2 blocks (all portions of East Platte Avenue as dedicated to public use in the plat of Mount View Heights, 2d Addition) that Defendant, its agents and representatives are hereby restrained and enjoined from constructing any barriers on said Platte Avenue, all until such time as plaintiffs' access rights as abutting property owners have been acquired in eminent domain proceedings.'(Emphasis supplied.)

The present controversy obviously has its origin in OrdinanceNo. 2528 of the City of Colorado Springs which purportedly vacated a platted subdivision, known as Mount View Heights Second Addition.Included within Mount View Heights Second Addition is an unimproved platted street known as Platte Avenue.Platte Avenue, as well as all of Mount View Heights Second Addition, is entirely within the boundaries of Colorado Springs.

James and Therese A. Crumb and Aaron Kitchen own property which abuts on Platte Avenue, although their property is not situate within the City of Colorado Springs.In other words, although Platte Avenue itself is entirely within the boundaries of Colorado Springs, the north edge of that roadway constitutes the City's boundary line and the Crumbs and Kitchen reside across that line in El Paso County.Platte Avenue runs east and west and although the Crumb and Kitchen properties abut on Platte Avenue, such street or roadway does not constitute their only means of access.As a matter of fact Platte Avenue is at the best only a secondary means of access to plaintiffs' properties, and the primary means of access to the Crumb and Kitchen properties is from streets running north and south, on which their property also abuts.

After this ordinance vacating Platte Avenue was duly passed by the city council, the Crumbs and Kitchen brought the present action seeking a determination that the ordinance in question is illegal and void, and injunctive relief restraining and enjoining Colorado Springs from 'constructing any barriers' on Platte Avenue or taking other meansures which would interfere with the right of the general public to use Platte Avenue.Thereafter, without objection, Robert E. Alexander was permitted to intervene as an additional partydefendant, he being the owner and developer of the Mount View Heights Second Addition.After trial the court took the matter under advisement and some eight months later entered the judgment set forth above.

The injunction by its terms enjoins Colorado Springs from closing Platte Avenue, but only 'until such time as plaintiffs' access rights as abutting property owners have been acquired in eminent domain proceedings.'Similarly, the basis for the declaration by the trial court that the ordinance is unlawful is the belief that such constitutes a 'taking of private property without the payment of just compensation.'The contention of the Crumbs and Kitchen is that Platte Avenue could not be vacated until they were first paid a sum of money for damage to their respective properties resulting from their loss of access to Platte Avenue.In support of their position they cite Section 15 of Article II of the Colorado Constitution, which provides, in part, as follows:

'Private property shall not be taken or damaged, for public or private use, without just compensation.Such compensation shall be ascertained by a board of commissioners, of not less than three freeholders, or by a jury, when required by the owner of the property, in such manner as may be prescribed by law, and until the same shall be paid to the owner, or into the court for the owner, the property shall not be needlessly disturbed, or the proprietary rights of the owner therein divested.'(Emphasis supplied.)

Colorado Springs and Alexander contend that a property owner who abuts onto a street which is in the process of being vacated, such as the Crumbs or Kitchen, has an adequate...