Denver Power & Irrigation Co. v. Denver & R.G.R. Co.

• Decision Date: 07 April 1902
• Citation: 30 Colo. 204,69 P. 568
• Parties: DENVER POWER & IRRIGATION CO. v. DENVER & R. G. R. CO. et al.
• Court: Colorado Supreme Court

69 P. 568

30 Colo. 204

DENVER POWER & IRRIGATION CO. v. DENVER & R. G. R. CO. et al.

Supreme Court of Colorado

April 7, 1902

Error to district court, Douglas county.

Action by the Denver Power & Irrigation Company against the Denver &amp Rio Grande Railroad Company and others. From a judgment for defendants, plaintiff brings error. Reversed.

Plaintiff in error, as petitioner, commenced an action in the district court to condemn a piece of land for a reservoir site. To this proceeding defendants in error were made respondents. On the trial of the issues made by the pleadings, the court rendered judgment denying the right of petitioner to condemn the premises sought to be taken. From this judgment petitioner brings the case here for review on error. Since the case was brought here, the people, through the attorney general, have filed a petition in intervention, and ask to intervene, which petition certain of the respondents move to strike from the files. These same respondents also move to dismiss the writ of error. The necessary facts and statements in the pleadings for an understanding of the questions discussed and determined appear in the opinion. For convenience, when named, the petitioner will be referred to as the 'Power Company,' and the respondents the Denver & Rio Grande Railroad Company as the 'Rio Grande Company,' the Denver, Leadville & Gunnison Railway Company as the 'Leadville Company,' the Denver Cripple Creek & Southwestern Railroad Company as the 'Cripple Creek Company,' and the Colorado & Southern Railway Company as the 'Colorado Southern.' The only respondents appearing here are the Leadville, Cripple Creek and Colorado Southern Companies.

Teller & Dorsey and Norman M. Campbell, for plaintiff in error.

Dines & Whitted, for defendants in error.

GABBERT, J. (after stating the facts).

Counsel for respondents present two propositions which go directly to the authority of petitioner to condemn the lands in question, and we shall, therefore, consider these matters first. The power of the petitioner to condemn is challenged upon the ground that under the constitution of the state it cannot take lands for a reservoir site for all the purposes mentioned in its articles of incorporation, and the joinder of nonpermissible purposes with those which are permissible deprives petitioner of the right to condemn for any. Section 14, art. 2, of the constitution, provides: 'That private property shall not be taken for private use * * * except for reservoirs * * * for agricultural, mining, milling, domestic, or sanitary purposes.' The articles of incorporation of petitioner recite that its objects and purposes are 'to procure * * * reservoirs * * * for the storage and use of water for power, irrigation, mining, milling, manufacturing, and other beneficial uses and purposes.' According to the petition, petitioner seeks to condemn for the purposes mentioned in its articles of incorporation, and it is therefore urged that petitioner is seeking to utilize the proposed reservoir site for 'power,' 'manufacturing,' and 'other beneficial uses and purposes,' which, it is said, are not uses recognized by the constitution for which a reservoir site may be condemned. This view is not tenable. The constitution does provide that a reservoir site may be taken for milling purposes, and the term 'milling,' as employed in the constitution, is synonymous with 'manufacturing.' Lamborn v. Bell, 18 Colo. 346, 32 P. 989. 20 L.R.A. 241. The word 'power,' as used in the articles of incorporation and petition, clearly means a manufactured product,--the produce of a manufacturing establishment. No use is suggested which, under 'other beneficial uses and purposes,' would not directly or indirectly be associated or connected with one or more of the uses for which a reservoir site may be taken, according to the express terms of the provisions of the constitution under consideration. We conclude, therefore, that no purposes are claimed different from those embraced within the provisions of the constitution, if the purposes therein mentioned had been specified in the articles of incorporation, and nothing more.

The next point urged against the authority of petitioner to condemn is based upon the ground that the reservoir site is within the limits of a forest reserve of the United States, and it is therefore urged that, in the absence of a showing by petitioner of a compliance with the law relative to the location of reservoir sites on such reserves, it cannot take the lands in question. This proposition is not unlike the one raised in Union P. R. Co. v. Colorado Postal Tel. Cable Co., 69 P. 564, where it was urged that the telegraph company could not condemn a right of way over lands extending through incorporated towns in the absence of a showing that it had obtained leave from the municipal authorities to erect its line along the streets and alleys of such towns. It was decided that the question was one which did not concern the railroad company. The fact that petitioner may not have leave from the government to maintain a reservoir site upon a forest reserve, if such leave is necessary, or has not complied with the law in this respect, if such is the case, may affect the ability of petitioner to enjoy the lands sought to be condemned, but does not appect its power to condemn such lands as against the respondents. They cannot raise a question which does not concern them, or which rests solely between the petitioner and the government. A further ground is also urged on behalf of respondents against the authority of petitioner to exercise the right of eminent domain, which will be noticed later.

We shall now consider the propositions urged on behalf of counsel for petitioner in support of their contention that the judgment of the court below should be reversed. The trial court determined that property held for a public use could not be taken, under the exercise of the power of eminent domain, when such taking entirely prevented its use for the public purposes to which it was devoted. This conclusion, it is claimed, is erroneous, for the reason, as we understand the argument of counsel, that corporate property devoted to a public use is subject to condemnation the same as private property of individuals, and may be taken for a different public use, even though such taking would render it impossible for the party from whom taken to in any manner utilize it for the purpose to which it was devoted, provided the requisite degree of necessity for the second taking be shown to exist, or where the party from whom taken can secure other property equally available. In support of this proposition we are referred to section 8, art. 15, of the constitution, which provides: 'The right of eminent domain shall never be abridged nor so construed as to prevent the general assembly from taking the property and franchises of incorporated companies and subjecting them to public use the same as the property of individuals.' It is unnecessary to attempt an analysis of this constitutional provision,--whether or not it is self-executing, or the legislature has provided laws by which its provisions may be enforced,--further than to say that neither the constitutional provision referred to nor any statute to which our attention has been directed changes or modifies the general rule that property already devoted to a public use cannot be taken for another in such manner or to such an extent that the use to which it is devoted will be wholly defeated or superseded, unless the power to so take be granted expressly or by necessary implication (Cincinnati, S & C. R. Co. v. Village of Belle Centre, 47 Am. & Eng. R. Cas. 72; Id., 48 Ohio St. 273, 27 N.E. 464; City of Seymour v. Jeffersonville, M. & I. R. Co., 126 Ind. 466, 26 N.E. 188; Lake Erie & W. R. Co. v. Board of Commissioners [C. C.] 57 F. 945; Little Miami, C. & X. R. Co. v. City of Dayton, 23 Ohio St. 510), except it may be in cases where a public exigency requires that it be taken. If the property sought to be condemned is already devoted to railroad purposes, then the facts which we consider as established by the record, or as claimed to exist by counsel, do not authorize the petitioner to take the property of the respondents. As we understand the record, the property to be condemned is claimed as a right of way for railroad purposes by the Colorado Southern and Rio Grande Companies, or at least wholly includes lands which these companies claim for such purposes; and that it is the intention of petitioner to utilize those lands by the construction and maintenance of a dam and reservoir, which will submerge them for a distance of seven or eight miles. It is claimed that the railroad companies can build a line of railroad around the proposed reservoir site at some additional cost, which will be equally as good as one constructed over their present rights of way; that the necessity of the reservoir company to such site is absolute, because it must take the bed of the stream or abandon its enterprise. Conceding that petitioner has the right, under the laws of the state, to ordinarily exercise the right of eminent domain in acquiring property held for railroad purposes, no statute is pointed out which would authorize it to take such property to an extent which would totally deprive the railroad companies of its use. No public exigency is shown to exist of a character which demands the location of a reservoir site at the point selected by petitioner. It may be true that the site thus selected is convenient, or it may even be true that it is the only available one on the stream; but that is a matter which affects the rights of petitioner, and not the public. It is not claimed that, in order to serve the needs of any...