City of Denver v. Kennedy

• Decision Date: 07 November 1904
• Citation: 80 P. 122,33 Colo. 80
• Parties: CITY OF DENVER et al. v. KENNEDY et al.[*]
• Court: Colorado Supreme Court

80 P. 122

33 Colo. 80

CITY OF DENVER et al. v. KENNEDY et al.^[*]

Supreme Court of Colorado

November 7, 1904

Appeal from District Court, Arapahoe County; P. L. Palmer, Judge.

Action by S. S. Kennedy and others against the city of Denver and others. From a judgment for plaintiffs, defendants appeal. Reversed.

H. M. Orahood and H. L. Ritter, for appellants.

Benedict & Phelps, Joshua Grozier, M. H. Kennedy, and Bartels & Blood for appellees.

F. A Williams, amicus curiae.

GABBERT C.J.

The ultimate question presented for determination on this appeal is the validity of assessments levied to defray the cost of constructing what is known as the 'Fourteenth Street Viaduct,' in the City of Denver. The city authorities created a viaduct district, and assessed the cost of constructing the viaduct against the realty of the district. Appellees, owners of property in the district brought an action the purpose of which was to annul these assessments. From a judgment in their favor the defendants appeal.

The questions presented by the record require a discussion and determination of the following general propositions: (1) The power of the city authorities to create the viaduct district, and is the viaduct a local improvement? (2) Was the apportionment according to benefits? (3) The constitutionality of certain charter provisions. And (4) were there such irregularities on the part of the city authorities as would render the assessment void? These several propositions will be considered in their order in connection with the particular facts bearing upon each.

1. The charter of the city of Denver provides that the board of public works may order the construction of viaducts, and, unless otherwise directed by the city authorities, the cost of construction shall be assessed against the district benefited thereby. Such district may be created by ordinance on recommendation of the board. Section 181 (section 24, art. 7) Charter. Under this provision the Fourteenth street viaduct district was created, and the cost of the viaduct in question assessed against the real property included within its boundaries. In the absence of constitutional restrictions, municipal authorities have the right, when lawfully authorized, to direct that the expense of a public improvement shall be assessed against the real estate specially benefited thereby. Palmer v. Way, 6 Colo. 106; Wolff v. City of Denver (Colo. App.) 77 P. 364; Adams v. Shelbyville, 77 Am.St.Rep. 484; 154 Ind. 467, 57 N.E. 114, 49 L.R.A. 797. The only limitation upon this authority, or, perhaps, more accurately speaking, the rule which the municipal authorities must observe, is that the property assessed is specially benefited. Special assessments for a public improvement are upheld upon the theory that the burden thereby imposed is equivalent to the special benefits inuring to the property assessed to defray the expense of such improvement. 25 Enc. Law (2d Ed.) 1168. The essential element of a local improvement is, as the term implies, that it shall benefit the property on which the cost thereof is assessed in a manner local in its nature, and which does not attach to other property of a like character. Sperry v. Flygare (Minn.) 83 N.W. 177, 49 L.R.A. 757, 81 Am.St.Rep. 261. The important question, then, is, does the record justify the conclusion that the viaduct was not a local public improvement? Counsel for appellees contend that it does, because, they say, from its very nature it could not be, for the reason that the benefits conferred upon the real property within the viaduct district by the construction of the viaduct are no different from those inuring to the other real property within the limits of the city. To determine this matter, it becomes necessary to refer briefly to the testimony and facts bearing on the question.

The viaduct extends over the Platte river, and the railroad tracks on each side. It affords a convenient and direct means of travel between the territory north of the river embraced within the limits of the viaduct district and that on the south side included within its boundaries. The part of the district on the north side of the river lies substantially north and west of the north terminal of the viaduct, and that on the south side in a line with Fourteenth street, and embraces territory on each side in an irregular shape, extending out as far as the intersection of Broadway and Colfax avenue. In a northeasterly direction from the viaduct a bridge crosses the river at Fifteenth street, a viaduct at Sixteenth street, a bridge at Nineteenth street and another viaduct at Twenty-Third street. These several structures are conveniently located with respect to the territory outside of that embraced in the Fourteenth street district; in fact, are nearer than the viaduct in question to such territory, but are not as safe or desirable, because in crossing the bridges railroad tracks must be crossed on the surface, while the bridge at Fifteenth street and the Sixteenth street viaduct are burdened with street car tracks, and the Twenty-Third street viaduct is old, and very much out of repair. There is also a bridge at Seventh street, westerly from Fourteenth street, but in crossing this bridge numerous railroad tracks must also be crossed on the surface. Generally speaking, it can be said that the most direct line of travel between the parts of the district on each side of the river is by way of the Fourteenth street viaduct, which is more conveniently located in this respect that either of the other structures mentioned, unless it should be the bridge at Seventh street. There was testimony pro and con on the subject of the benefits conferred on the property embraced within the district by the construction of the viaduct. The city extends for several miles along the river, and the other portions not embraced within the district are separated thereby. It is not charged that the action of the city authorities in creating the viaduct district was fraudulent, but contended that the viaduct is so manifestly an improvement of like benefit to practically all property within the limits of the city that the determination by the municipal authorities that it was a local improvement should be set aside. On this question there was doubtless room for discussion before the city authorities when the matter of creating the district was under consideration, but that does not by any means serve as a criterion in determining whether their action in creating the district and assessing the cost of the viaduct to the property therein may be questioned in the courts. Specific power was delegated by the Legislature to the city authorities to construct the viaduct. They were specially empowered to determine whether the expense of its construction should be assessed against the district or paid for by the city. In determining this question it was within their province to determine whether or not special benefits were conferred upon the property embraced within the boundaries of the district equal to the expense of construction. The viaduct furnishes a safe and direct means of travel between the portions of the district which it connects. None of the other structures mentioned are as desirable as a means of travel because of the necessity of crossing numerous railroad tracks, the presence of tracks over which street cars frequently pass, or the roundabout way in which persons living in the district would be compelled to travel in order to cross the river. This last observation applies particularly to the viaduct at Twenty-Third street. As the city grows, the necessity for better facilities for communication between the portions separated by the river will increase, so that from time to time in the future other viaducts must be constructed. Residents of that portion of the city west of the river and south of the north terminal of the viaduct are certainly not afforded as direct means of reaching the part of the district south of the river by way of the Fourteenth street viaduct as they would be if one should be constructed a half mile or more further up the stream. Neither would the construction of a viaduct at the point last indicated afford the residents of the district on the north side of the river as ready access to the business portion of the city as the present viaduct does. It is true this viaduct may be and is used by persons living outside of the district, and is convenient of access by them. This does not, however, necessarily establish that the viaduct does not specially benefit the real property in the district. A paved street is utilized by the public because of the improvement, but for this reason alone it cannot be held that the expense of paving should be borne by the city rather than by the abutting property. Just where the lines should be drawn in creating the district, or whether other property in the near vicinity is also specially benefited by the construction of the viaduct, are matters upon which different minds might well disagree; but they serve to illustrate the...