City of Denver v. Mullen
| Decision Date | 25 April 1884 |
| Citation | 7 Colo. 345,3 P. 693 |
| Parties | CITY OF DENVER v. MULLEN and others. |
| Court | Colorado Supreme Court |
A clause in a charter, giving a city power 'to declare what shall be a nuisance, and to prevent and remove the same,' does not mean that a city council may, by mere resolution or motion, declare any particular thing a nuisance which has not theretofore been pronounced to be such by law, or so adjudged by judicial determination.
Only nuisances per se may be removed or abated summarily by the acts of individuals or by the public.
A civil action will lie to abate or prevent a public nuisance on behalf of the public by its proper officers, or the remedy may be by indictment.
An injunction will lie restraining a city from interference with the use of property which has not been lawfully ascertained and declared to be a nuisance.
The existence and the validity of the acts of a de facto corporation, whose user is established, cannot be attacked collaterally upon the ground of an irregularity or omission in its certificate of incorporation, and the certificate containing the irregularity is admissible in evidence.
When a city has acquired the fee and control of its streets, in trust for the public, subject to the previous grant and dedication of a right of way for an irrigating and milling ditch, it must repair and render them passable, as the public necessity and convenience require, without interfering with the rightful and accustomed use of the ditch.
The title to public land accrues to a person at the time of making entry, and does not relate back to the time when the act giving the right of entry was passed; this rule applies to a city as well as to an individual.
The authority conferred by the act of 1861, incorporating the city of Denver, in respect to the control of the streets by the city, cannot be extended to invalidate the acquisition thereafter by the proprietors of a milling ditch of a right of way through lands, then a part of the public domain, and prior to the acquisition of title thereto by the city although streets had been previously laid out thereon and traveled.
Error to the district court of Arapahoe county.
John C. Stallcup, City Atty., for plaintiff in error.
Markham, Patterson & Thomas, for defendants in error.
The defendants in error, J. K. Mullen, Dennis Mullen, and Charles R. Davis, who were the plaintiffs below, applied to the judge of the district court for relief by way of injunction against the city of Denver, the mayor and the street commissioner thereof, to restrain the said parties from interfering with the flow of water in a certain irrigating and mill ditch known as the Platte and Denver ditch, which conveys water to the flouring-mills of said complainants, situate in that portion of the city known as West Denver. The bill of complaint averred that the ditch was constructed in 1865 by a corporation incorporated in 1864 under the general incorporation law of the then territory of Colorado; that the complainants were lessees of the said ditch company, possessing as such lessees the right to the use of the said water in operating the two flouring-mills owned by the said Mullens and Davis respectively; that the grinding capacity of said Mullen mill is 1,150 bushels of wheat, and that of the Davis mill about 600 bushels each 24 hours; that said mills are run chiefly by water-power from said ditch; that complainants had a right to the flow and use of said water for the purpose aforesaid without interference by the defendants; that defendants had, with force and violence, torn out a certain flume in the said ditch and diverted the water therefrom, and were threatening to continue such diversion of the water, to the great and irremediable damage of complainants; and said complainants therefore prayed a writ of injunction to restrain the said acts of defendants, and for all proper relief in the premises.
The answer of defendants below denied severally the allegations of plaintiffs' bill, and set up ownership in fee by the city of the streets and alleys therein; denied the right of plaintiffs to obstruct the same by the ditch wherever it crossed the same; and averred that the interference with the ditch was attempted and asserted only upon refusal of plaintiffs to bridge the streets at the ditch crossings, so as to permit the free and convenient use of said streets by the public. The defense further set out, by way of cross-complaint for affirmative relief, that the ditch in question runs through and across the following-named streets in Hunt's addition to the city, to-wit, Carson, Martin, Bear, Buffalo, Moose, Deer, Olive, Capitol, South Tenth, South Ninth, South Eighth, and half of Colfax avenue, together with the intervening alleys; and also the following-named streets within that portion of the original limits of the city known as the congressional grant, to-wit, Champa, Curtis, Lawrence, Larimer, Holladay, Wazee, Wynkoop, Eighth, Ninth, and a portion of Colfax avenue, together with the intervening alleys; that the said ditch, and the conveyance of water therein, is an obstruction to the public and necessary use of the streets; that the crossings of the said ditch in the streets, where the same are not bridged, are inconvenient and dangerous to the public; that the city rightfully owns and controls said streets, with authority to control and regulate the use of the same; and prays that the said ditch be abated, the water turned off, and the ditch filled up, so as to prevent the further obstruction to the public use of the streets, and for full relief, etc.
To this answer a replication was filed denying the right of the city to interfere with the said ditch so as to prevent the flow of water to the mills of the plaintiffs, and averring that the grantors of plaintiffs had a right to said ditch, and the use of the water therein, prior in time and superior in law to any claim of the city in respect to the streets and alleys where the same cross said ditch; that they have been in the undisturbed exercise of such right for nearly 18 years; that the owners of the land through which the ditch runs, as well as the said city of Denver, have authorized and licensed the plaintiffs and their grantors to use the said ditch and convey the water through the same for the purpose of operating said flouring-mills, and that, therefore, the plaintiffs are not bound to bridge the ditch where the streets cross the same; that the ditch is used to irrigate a large extent of farming country along its line above the mills.
In reply to the matter of the cross-complaint of the defendants the plaintiffs admit that the ditch, together with the waste water below the mills, runs through or across the streets mentioned in defendants' answer, but aver that as to all the streets and alleys in Hunt's addition the ditch company acquired its right of way long prior to the time when said lands became a part of the city; that the ditch was constructed and used for more then ten years prior to said lands becoming an addition to the city; that said lands became a part of the city, and were accepted by the city as such addition with full knowledge of all the existing prior rights of said ditch company therein, and therefore that plaintiffs were not bound to bridge said ditch where streets crossed the same in said addition; that in respect to the streets and alleys crossing said ditch within that part of the city included in the congressional grant, plaintiffs reply that they had a vested right to said ditch and to the flow of the water therein long prior to the time when the city acquired or had any right to or authority over the said streets and alleys, or any title to the lands embraced in the said congressional grant, and have exercised such prior rights unmolested by the city, and with the leave and license of said city, for the period of more than 17 years, and hence are not bound to bridge the streets within the limits aforesaid.
A preliminary injunction was issued in accordance with the prayer in the complaint, and afterwards, in support of the respective allegations in the pleadings, proofs were taken before a referee, and, the cause coming on to be heard upon the said pleadings and proofs, the court decreed that as to the defendants the mayor of the city and the street commissioner they were not necessary parties to the action, and the same was therefore dismissed as to them. The court further decreed as follows, to-wit:
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