Denver & R.G.R. Co. v. Costes

• Decision Date: 08 February 1892
• Citation: 1 Colo.App. 336,28 P. 1129
• Parties: DENVER & R.G.R. Co. v. COSTES.
• Court: Colorado Court of Appeals

28 P. 1129

1 Colo.App. 336

DENVER & R.G.R. Co. v. COSTES.

Court of Appeals of Colorado

February 8, 1892

Error to district court, Arapahoe county; DAVID B. GRAHAM, Judge.

Action by Hannah Costes against the Denver & Rio Grande Railroad Company for injury to property. Judgment for plaintiff. Defendant appeals. Reversed.

Wolcott & Vaile and H.F. May, for plaintiff in error.

Browne Putnam & Preston, for defendant in error.

REED J.

It is alleged in the complaint of defendant in error, who was plaintiff below, that she, for eight years or more previous to bringing the suit, had been the owner of a lot in the west division of the city of Denver, on which had been built one frame building of three rooms, and two brick dwellings of four rooms, each. Prior to August, 1889, the plaintiff in error had constructed and had been operating its railroad in the street in front of the premises for some years; that there was one side track and one double or three rail track laid upon an embankment alleged to have been three feet high in front of the property; that in August, 1889, plaintiff in error widened the embankment on the side towards the property, and put in a stone retaining wall; that such additional embankment and wall were two feet high, upon which an additional track was laid and used. The increased width of the embankment by such addition is not given, but is alleged to extend within 10 feet of the line of the lot. The action was brought to recover damages to the property by reason of such further use and appropriation of the street and operating the additional track. The allegations of damage are as follows: "That the entire street in front of plaintiff's said lot and premises except ten feet of the sidewalk, is now occupied by defendant's said railroad; the ingress to and egress from said lot and premises by Sixth street is wholly cut off. That the said last-named track is a permanent structure, intended to be perpetually used by the defendant, and is in constant use by the defendant for running of trains of cars, propelled by steam. That thereby the plaintiff's property is endangered by sparks of fire from defendant's engines the walls of her said house cracked; the plastering torn off; the rate of insurance increased annually in the sum of twenty-five dollars; the rental value thereof decreased in one hundred dollars per month; and large quantities of dust, cinders, and live sparks cast in and upon her said house and the personal property contained therein,--to her damage in the sum of five thousand dollars." The corporation answered, denying severally every allegation of the complaint; pleaded specially its corporate existence, its grant of right of way in the street by an ordinance of the city of Denver; admits the construction of a side track in front of the premises, closing with the following: "But which in no wise injures or interferes with the plaintiff's alleged property, or does any damage or injury to the plaintiff whatever." The case was tried to a jury, resulting in a verdict of $2,500 in favor of defendant in error, and a judgment upon the verdict.

If the plaintiff below could recover at all she could only do so for the new and increased servitude of her property, and for the damages sustained by the increased burden by reason of the extension and widening of the grade in August, 1889, and operating a track upon it. It is conceded that the surface of the railroad embankment was at the established grade of the street; hence the sidewalk and property were below the grade a distance equal to the height of the wall and embankment. Analogous questions and questions identical have several times been before the supreme court of this state, as well as in other states having the same constitutional provision. The conclusion in all has been that a recovery could be had in all cases where private property was substantially damaged by the construction and...