Denver & S.F. Ry. Co. v. Hannegan

• Citation: 43 Colo. 122,95 P. 343
• Court: Supreme Court of Colorado
• Decision Date: 06 April 1908
• Parties: DENVER & S. F. RY. CO. et al. v. HANNEGAN et al.

95 P. 343

43 Colo. 122

DENVER & S. F. RY. CO. et al. v. HANNEGAN et al.

Supreme Court of Colorado

April 6, 1908

Appeal from District Court, Arapahoe County; F. T. Johnson, Judge.

Action by Mamie Hannegan and others against the Denver & Santa Fé Railway Company and another. From a judgment for plaintiffs defendants appeal. Reversed.

In 1880 plaintiffs were the owners of two lots abutting on Clark street and Fifth avenue, in Sumner's addition to the city of Denver. In 1881 the city council adopted an ordinance granting to the Denver Circle Railroad Company a right to occupy and use Clark street for the purpose of constructing its line and operating its trains through the same. The Circle Company at once built its line, and from 1882 to 1887 operated its trains through and along said street. In the latter year appellant the Denver & Santa Fé Railway Company bought all of the property, franchises, etc., belonging to the Circle Company. At or about the same time the Denver &amp Santa Fé Company executed a 99-year lease of this property to appellant the Atchison, Topeka & Santa Fé Railroad Company. The latter company at once took possession and operated the line of railway through said street until the present suit was begun, to wit, September 22, 1888. For some reason the cause was not brought on for trial until October 22, 1903. A jury being waived, the trial was had to the court, who upon hearing the testimony entered judgment in favor of appellees who were plaintiffs below, for the sum of $500. To reverse that judgment the present appeal was taken. It was stipulated that the fee to the lots in question was in plaintiffs prior to the occupancy of Clark street by the Circle Company, and that it continued and remained in plaintiffs down to the date of trial. It also appeared in evidence that the line originally constructed by the Circle Company was narrow gauge; that subsequent to the purchase and leasing by defendants a change thereof to standard gauge by the laying of a third rail was considered; that the laying of such rail was never completed, and standard gauge trains were never operated through Clark street; and that some time after the commencement of the action the rails and ties laid by the Circle Company were removed, and the occupancy and use of Clark street were entirely abandoned. The injuries suffered by appellees consisted of annoyance and inconvenience through the occupancy and use of the street for narrow gauge railway purposes. No evidence was offered showing or tending to show broad gauge uses. Plaintiffs were, even at the date of trial minors, and no defense was pleaded or objection interposed based upon delay in commencing or prosecuting the action, or referring to statutes of limitation.

Rogers, Cuthbert & Ellis, for appellants.

W. W. Cover, for appellees.

HELM, J. (after stating the facts as above).

No proofs were offered tending to show that the fee to Clark street was in plaintiffs. The stipulation touching ownership of the lots mentioned did not reach or include title to the street. On the contrary, under the dedication the fee thereto was vested in the city in trust for the use of the public. A discussion of this subject is rendered unnecessary by the decision in Denver & S. F. R. Co. v. Domke, 11 Colo. 254, 17 P. 777, wherein the status in the regard of Clark street was considered and affirmatively declared. It follows from the foregoing fact, coupled with the authority vested by the Constitution and statutes in the city council, that the body had plenary control over the street. The city authorities could authorize the occupancy and use thereof for railway purposes, although it is a servitude not strictly within the ordinary uses of a public street. And the effect of the grant to the Denver Circle Railroad Company by the ordinance of January 28, 1881, was to render legal such occupancy and use and avoid any claim by the city for damages through the resulting inconvenience to the general public. Moreover, so long as the grantee or its successors limited such occupancy and use to proper and legitimate railway purposes, conducting the same in accordance with the provisions of the ordinance, no action could be maintained by any one upon the ground that such occupancy and use constituted a nuisance. The only relief to which plaintiffs were entitled was for injuries suffered by them as abutting lot owners. They could not recover for such annoyances or inconveniences as were common to the general public. They could claim indemnity for permanent interference with ingress or egress to and from their lots, and for loss in the value thereof otherwise. The measure of their compensation was the actual diminution in market value of their premises for uses to which they might reasonably be put, occasioned by the construction and operation of the railroad through Clark street. Upon this view of the law the complaint was evidently drawn, and the trial was manifestly conducted, although both the printed and oral arguments before us contain suggestions based upon the theory of a continuing trespass or nuisance. Under the authorities in cases of this kind the abutting lot owner sues for and recovers the total amount of his injury in a single action. This action is usually brought at or about the time of the occupancy of the street by the railway. And the right to maintain the same may be lost by delay, and barred by statutes of limitation, which statutes begin to run from the first occupancy of the street for railway purposes. The foregoing interpretation of the law and statement of principles...