Denver & R.G.R. Co. v. Griffith

• Citation: 17 Colo. 598,31 P. 171
• Court: Colorado Supreme Court
• Decision Date: 24 September 1892
• Parties: DENVER & R. G. R. CO. v. GRIFFITH.

31 P. 171

17 Colo. 598

DENVER & R. G. R. CO. v. GRIFFITH.

Supreme Court of Colorado

September 24, 1892

Error to district court, Ouray county.

Action by the Denver & Rio Grande Railroad Company against Emma V Griffith to condemn a right of way over defendant's property. From a judgment for defendant, entered upon verdict of a jury, plaintiff appeals. Reversed.

Wolcott & Vaile and Goudy &amp Sherman, for plaintiff in error.

Story & Stevens, for defendant in error.

HAYT C.J.

This proceeding was instituted by the Denver & Rio Grande Railroad Company, plaintiff in error, under the eminent domain act, to condemn a right of way over a certain placer claim near the town of Ouray, in Ouray county, Colo., the property of the defendant in error, Emma V. Griffith. The proceeding was commenced by petition presented to the judge of the district court of the seventh judicial district in vacation, upon which an ex parte order was made, giving plaintiff in error the right to take possession of said lands for the purposes indicated, upon making a deposit of $1,000 with the clerk of the district court of Ouray county. A motion to vacate this order having been interposed and denied, the cause was set down for hearing upon several different dates but in each instance the hearing was continued from time to time. Before the cause was finally reached the defendant filed an answer to the petition. Upon the coming in of the answer the plaintiff asked for, but was refused, time for filing a reply to this answer. Thereupon evidence was taken, and the cause submitted to a jury. The jury fixed the value of the land actually taken at the sum of $1,920, and the damages sustained to the residue at $1,250; the verdict being silent upon the question of benefits.

By the first error assigned, plaintiff in error complains of having been forced to trial without sufficient time for preparation. An examination of the record shows that petitioner asked for additional time solely for the purpose of filing a reply to the defendant's answer, and the action of the court denying the same can more conveniently be considered under the next assignment of error.

By the second assignment of error, plaintiff in error complains that no opportunity was given it previous to trial to demur or reply, or to in any way raise the sufficiency of the defendant's answer. In determining this objection, it is necessary for us to briefly call attention to the pleadings in condemnation cases. In order that the court to which the application is made may have jurisdiction, the statute requires that the petition shall state certain facts. It is however, with one exception, which will be hereafter noticed, entirely silent as to further pleadings. In the case of Tripp v. Overocker, 7 Colo. 72, 1 P. 695, it was held by the court that the statute furnished a complete system of procedure, differing in many essential particulars from that governing ordinary civil actions. It we look to this statute for the purpose of ascertaining the manner in which the issues are to be made up, we find that no provision is made therein for written pleadings other than the petition. It seems to be the intent and object of the act that the cause shall be heard alone upon the petition, no answer or reply being necessary. The only exception to this rule is found in section 12, which provides for the filing of a cross petition by any party interested in the property sought to be taken or damaged by the proposed work, who has not been made a party to the action. It has been held that the language of this section is broad enough to permit the defendant to file a cross...