Colorado Cent. R. Co. v. Allen

• Decision Date: 11 October 1889
• Citation: 13 Colo. 229,22 P. 605
• Parties: COLORADO CENT. R. CO. v. ALLEN.
• Court: Colorado Supreme Court

22 P. 605

13 Colo. 229

COLORADO CENT. R. CO. v. ALLEN.

Supreme Court of Colorado

October 11, 1889

Appeal from Larimer county court. On rehearing.

HAYT J., dissenting.

Syllabus by the Court

1. Proceedings under the act of eminent domain are purely statutory, and the statute must be strictly pursued.

2. A petition for the condemnation of lands in the county court should show the value of the property sought to be taken, or the amount involved in the proceeding; and, if the property belongs to a married woman, the husband must be joined as a party. Where these substantial requisites are not complied with, such proceedings, based upon service by publication are ineffectual to pass the title, or any right or interest therein.

3. By the laws of Colorado, a married woman, being emancipated from the thralldom of coverture, may do what she will with her own property, the same as any other individual. Her enfranchisement brings to her corresponding responsibilities. To the extent she is sui juris, she is subject to the law of estoppel.

4. Though, under the act of eminent domain, it is required that the husband shall be joined as a party when the wife's lands are sought to be taken without her consent, this does not preclude her from voluntarily conveying her property to any use, and at any time, the same as if she were sole. Hence, where condemnation proceedings are wholly void, they are powerless to coerce her; and if, with notice of what is sought by such proceedings, she voluntarily accepts as compensation for her property a sum of money equal to the amount of a void award, she must be regarded as acting wholly independent of such proceedings, and she cannot thereafter recover possession of the premises, nor further compensation for the taking. In such case she is bound by the taking and acceptance, but not by the proceedings.

5. Defective condemnation proceedings may be renewed, and the petition and other papers may be amended, whenever necessary to a fair trial and final determination of the controversy.

6. The petitioner is at liberty to show, by proper pleadings and proof, the state of defendant's title, claim, or interest, and that it is only a bare legal title, without any equity in defendant, and that the damages are merely nominal.

7. The fact that counsel, at the trial, advance a different theory, or assume inconsistent positions, in argument, does not justify the court in rejecting evidence offered in support of the pleading, and material to the issue. This court reviews a case upon the record, and not upon the theory of courts or counsel not in harmony with the record.

8. A petitioner cannot introduce in evidence an outstanding deed in one not a party to the proceeding, unless the same be averred in the petition in disparagement of the defendant's title or interest.

9. The burden is upon the defendant to show the value of the property or interest actually taken, as well as damages, if any, to the residue; hence he is entitled to open and close at the trial.

10. The true and actual value of the property, or interest therein, belonging to the defendant at the time of the appraisement is the measure of compensation in condemnation proceedings in this state.

Teller & Orahood, for appellant.

A. H. De France, for appellee.

ELLIOTT J.

In September, 1877, appellant filed in the county court its petition to condemn for railway purposes certain lands belonging to the defendant, Cora Allen, who was then a non-resident of the state. The petition contained no averment of the value of the lands sought to be taken, nor of the amount involved in the proceeding. An order of publication was made, notice was published, and the defendant, Cora, not appearing, was defaulted. Commissioners were thereupon appointed, who reported the compensation for her said lands to be $180. This report was filed and approved October 9, 1877, and no further proceedings against the said Cora appear of record for more than six years. In April, 1884, the petitioner filed its motion for an entry of the rule as to said lands of the defendant, Cora, alleging the payment of the $180, as aforesaid, for the ostensible purpose of becoming seised in fee of said lands according to the statute of eminent domain; but, without obtaining any ruling upon such motion, the petitioner on the same day filed its supplemental petition, referring to the original petition herein, and the proceedings had thereon, and asking that one James L. Allen, the husband of said Cora, might be summoned to show what right, title, or interest he had, or claimed to have, in said lands. The said James, being summoned, demurred to said supplemental petition. The said Cora also appeared, and moved the court to vacate and set aside all proceedings and orders, of every kind and nature whatsoever, taken or had in said cause or proceeding subsequent to the filing of the original petition, so far as the same related to her rights or property, on the ground that the court had never acquired jurisdiction over her person, and had never acquired jurisdiction of the subject-matter of said proceeding, and because the petition did not state facts sufficient to give said court jurisdiction. The demurrer does not appear to have been ruled on; but the motion was afterwards, upon argument, sustained, and thereupon the petitioner filed its amended petition. On motion of said defendants, certain portions of this amended petition were stricken out, and, petitioner having filed amendments thereto, the defendants again demurred; but this demurrer was not ruled on, and again petitioner, by leave of court, filed a second and further amended petition, which was in substance as follows: 'And now comes said plaintiff, and files its second and further amended petition herein, as to and concerning the lands herein condemned as the property of said Cora Allen, and alleges: (1) That the amount herein involved does not exceed the sum of two thousand dollars. (2) That plaintiff is, and was during the year 1877, a domestic corporation authorized by law to construct and maintain a line of railroad passing through said county, and through or contiguous to the lands hereinafter mentioned. (3) That it is, and was at said time, necessary for plaintiff to take and occupy for railroad purposes certain lots or parcels of land, [describing them as in the first petition.] (4) That defendant Cora Allen was in the year 1877 the owner of record of said lots, and still claims to be such owner; and the said defendant James L. Allen is, and then was, the husband of said Cora, and for that reason is made a party hereto. (5) That the compensation to be paid by plaintiff to said defendant for the said taking and occupancy of said lots cannot be agreed upon by the parties interested. (6) That just previous to such taking and occupancy of said lots, in 1877, an attempt was made by plaintiff to have such compensation assessed in this present action; and such proceedings were had, and such things done, that the sum of one hundred and eighty dollars was then, to-wit, on or about the 10th day of October, 1877, paid by plaintiff to said defendant Cora Allen, and by her accepted as for and on account of such compensation. (7) That subsequently, to-wit, on the 10th day of July, 1883, said defendant Cora Allen, by suit against this plaintiff by her then begun in another tribunal, claimed to be still the owner of said lots, and that previous to said 10th day of July this plaintiff had always claimed in good faith title to said lots, (since said attempted ascertainment of compensation,) and had occupied the same openly, continuously, and uninterruptedly from said 10th day of October until said 10th day of July, and during said period between said last-named dates had received no intimation nor notice of any adverse claim to or upon the same. Wherefore the plaintiff prays that the compensation to be paid the said defendant Cora Allen for and on account of said taking and occupancy of said lots this Hon. court will cause to be assessed; and that plaintiff recover from said defendant said sum of $180, with interest, and other relief,' etc. The defendant moved to strike out of this last amended petition the sixth and seventh paragraphs thereof. The motion was sustained as to paragraph 7, but denied as to paragraph 6, and thereupon the cause was tried and disposed of as an ordinary proceeding for the condemnation of lands for public use. The jury found the value of the land to be $2,000; no additional damages or benefits. The verdict being sustained by the court, the appellant brings the case here on appeal, assigning as error certain rulings of the court before, during, and after the trial.

Proceedings to condemn property for public use under the act of eminent domain are purely statutory, and the statute must be strictly pursued. The province of the court and jury are defined by the terms of the act. The court did not err in disregarding or in treating as surplusage, petitioner's prayer for judgment against defendant for the sum of $180. The only way petitioner could make the payment of that sum available under the renewed proceedings was by having it applied in substantial satisfaction, or by way of reduction, of defendant's compensation, in case it should be shown at the trial that defendant had received such sum in full, or on account, of compensation for the lands taken as alleged in the amended complaint. Gen. Laws 1877, c. 31; Mills, Em. Dom. §§ 87-90; Railroad Co. v. Jackson, 6 Colo. 340; Knoth v. Barclay, 8 Colo. 300, 6 P. 924. The original petition did not contain any statement of the value of the property sought to be taken, nor any averment of the amount involved in the proceeding. There was no personal service of process...