City of Englewood v. City & County of Denver, 16316

• Decision Date: 19 February 1951
• Docket Number: No. 16316,16316
• Citation: 123 Colo. 290,229 P.2d 667
• Parties: CITY OF ENGLEWOOD v. CITY & COUNTY OF DENVER et al.
• Court: Colorado Supreme Court

Page 667

229 P.2d 667

123 Colo. 290

CITY OF ENGLEWOOD v. CITY & COUNTY OF DENVER et al.

No. 16316.

Supreme Court of Colorado, en Banc.

Feb. 19, 1951.

M. O. Shivers, Jr., Englewood, Worth Allen and Frederic L. Kirgis, Denver, for plaintiff in error.

J. Glenn Donaldson, Glenn G. Saunders, and Holme, Roberts, More, Owen & Keegan, and Harold D. Roberts, Milton J. Keegan, all of Denver, for defendant in error.

William A. Grelle, Boulder, John C. Banks, Grand Junction, Frank L. Moorhead, Boulder, Clifford Mills, Denver, Conrad L. Ball, Loveland, F. J. Reinhard, Jr., Golden, J. W. Preston, Pueblo, F. T. Henry, Colorado Springs, John W. Metzger, Atty. Gen., Allen Moore, Deputy Atty. Gen., and Paul Hupp, Asst. Atty. Gen., amici curiae.

HOLLAND, Justice.

Englewood, a municipal corporation adjoining Denver, relying on either, or both of two causes of action, sought injunctive relief against Denver and its board of water commissioners from collecting increased water rates from domestic water consumers in Englewood and from requiring the installation of meters until authority for such has been obtained from the Public Utilities Commission of Colorado. The complaint was filed in the district court of Arapahoe county May 25, 1948; venue was changed to the district court of the City and County of Denver, where, upon the issues presented, a declaratory judgment was entered July 30, 1948, dismissing the complaint and each cause of action therein. Thirteen points are specified as grounds for reversal here.

Succinctly stated, Englewood contends that Denver, in the sale of its surplus water to consumers outside its city limits, is operating as a public utility and subject to the jurisdiction of the Public Utilities Commission of Colorado; and further, that Denver is contractually bound under an Englewood ordinance of 1909, to furnish water to such outside Englewood consumers at the prevailing scheduled rates in the city of Denver. Denver vigorously opposes this contention and is supported by the arguments presented by the Colorado Municipal League and a number of its municipal members, appearing by permission of this court as amici curiae. Permission also was granted to the Attorney General, his deputy and assistant, to appear as amici curiae on behalf of the Colorado Public Utilities Commission.

In 1909, and prior thereto, the water needs of Denver were supplied by the Denver Union Water Company, a private domestic corporation, which had acquired water rights and facilities for such service. In 1909, the water company, seeking a right-of-way to convey from outside sources the water which it had acquired for its principal use in supplying Denver, negotiated an agreement with the city council of Englewood, which contractual agreement merged into an ordinance duly passed by the Englewood City Council, known as ordinance No. 109, a copy of which is marked 'Exhibit A,' attached to and made a part of the complaint, and is as follows:

'Exhibit 'A'

'Ordinance 109

'An ordinance granting to the Denver Union Water Co. the right to lay and maintain a water main or conduit in and along South Broadway and in and along West Oxford Avenue, Oxford Avenue and South Clarkson St.

'Be it Ordained by the City Council of the City of Englewood:

'Section 1. The right and privilege is hereby granted to the Denver Union Water Co., its successors and assigns, to lay and maintain a wood stave conduit or water main forty-eight (48) inches in diameter in and along the following streets and avenues in the City of Englewood, to-wit:

'Beginning at the intersection of West Oxford Avenue and South Topeka Court, and thence east along West Oxford Avenue and Oxford Avenue to the eastern boundary line or limits of said city at South Clarkson St. and thence north along South Clarkson St. to the northern boundary line or limits of said City; also the right to lay and maintain a twenty (20) inch conduit or water main beginning at the intersection of South Broadway and Hampton Avenue, and thence running South on South Broadway to the South boundary line or limit of the City of Englewood.

'Section 2. The said The Denver Union Water Co. shall lay said water main and conduits beneath the surface of said streets and refill the excavations and leave said streets and avenues in good condition, and the said Company shall be liable to the City of Englewood and the inhabitants thereof for all damages which may occur by reason of excavating for and laying of said water mains.

'Section 3. This right of way is granted upon the further condition that permission shall be granted to the inhabitants of the City of Englewood to make connections with said water mains for domestic supply of water under the Rules and Regulations of the said The Denver Union Water Company, its successors and assigns, which water shall be paid for at the prevailing scheule rates in the City of Denver.

'Passed and approved on the First (1st) day of November, A. D. 1909.'

After the passage of this Englewood ordinance, the water company laid its conduits in the streets designated, and until November 1918, permitted residents of Englewood upon 'tap applications,' to tap the conduits for their private water service, paying the same rates for such water as was being paid by Denver residents.

In 1916, Denver, a home-rule city, organized under Article XX of the Constitution of the state of Colorado, entered into an option with The Denver Union Water Company for the purchase of the latter's water facilities and properties. Following the procedure prescribed by its charter, the matter of authority to purchase the properties of the water company, and the issuance of bonds therefor, was approved by the electorate of the City and County of Denver, and thereafter, by proper conveyances, on November 1, 1918, Denver acquired certain properties of the water company, including the pipe lines and easements located in the city of Englewood. Following the description of the Englewood or Broadway conduit involved in this case, the deed of conveyance contained the following, 'Subject to the provisions contained in a certain ordinance, the same being Ordinance No. 109 of the Series of 1909, of the City of Englewood.' Englewood alleges and contends that Denver thus acquired title to the rights granted The Denver Union Water Company by the ordinance subject to the obligations contained in the ordinance, supra, and is bound thereby. The City of Denver denies that the system so acquired was subject to any obligation of the water company, and it affirmatively alleges that Denver did not and could not acquire or obligate itself to perform any obligations of The Denver Union Water Company.

It is stipulated and shown that The Denver Union Water Company, and later Denver, upon 'tap' applications, with agreed limitations on the service, permitted residents of Englewood to make the connections for domestic supply of water as provided in the ordinance, supra. It is further shown that for two brief periods, about 1945, during a shortgage of water supply, Denver denied additional connections by Englewood residents. It is to be borne in mind that all service connections and facilities for the use and convenience of the consumer were made at the expense of the consumer. In 1948, Denver, through its Board of Water Commissioners, notified the Englewood consumers that an increase of thirty per cent in the flat rate for water was being invoked and would prevail until such time as the consumer would install meters. Within reasonable time thereafter, this action was instituted to enjoin the enforcement of the collection of the increased water rates, and further, to require Denver to submit to the supervision and control of the Public Utilities Commission of the State of Colorado. Upon full hearing, the trial court, in thorough and painstaking findings, determined the questions adversely to Englewood, the plaintiff, and entered its judgment accordingly.

In view of the facts stipulated for purposes of the hearing, it is unnecessary to further detail the evidence because the issues present only two questions for our determination, namely: (1) In permitting Englewood residents to tap the water mains as provided in the ordinance and supply them with so-called 'surplus' water, is Denver a public utility within the meaning of the definition of a public utility contained in the Public Utility Act of the State of Colorado, chapter 137, '35 C.S.A., and subject to the control of the Public Utilities Commission created thereunder? (2) Is Denver contractually bound relative to the providing of water service and the rates therefor by the ordinance, supra, and if in violation of such contractual relation, if any, is Englewood entitled to injunctive relief?

While interrelated, each question, standing as an alleged cause of action, requires our determination. Under the facts peculiar to the instant case, and the constitutional provisions and statutes involved, we have no parallel case for precedent or guidance as an expression of this court. Cases from other jurisdictions closely similar are persuasive, although involving different situations in some respects. It is contended by counsel for Englewood that the case of City of Lamar v. Town of Wiley, 80 Colo. 18, 248 P. 1009, is here controlling in all respects. With this contention we cannot agree, because in that case the city of Lamar had involked the jurisdiction or control of the Public Utilities Commission and the question of whether Lamar was a public utility in furnishing electricity beyond its border was not an issue, while in the present case, Denver has consistently held itself free from submission to supervision and control of its utilities operations, including the supplying of water to consumers beyond its territorial limits. Further, the Lamar case involved the furnishing of electric current to the neighboring town of Wiley. While we do not pause to explore the field of...