Denver Union Terminal Ry. Co. v. Glodt

Citation67 Colo. 115,186 P. 904
Decision Date03 November 1919
Docket Number9311.
PartiesDENVER UNION TERMINAL RY. CO. v. GLODT et al.
CourtSupreme Court of Colorado

Rehearing Denied Jan. 5, 1920.

Department 3.

Error to District Court, City and County of Denver; John A. Perry Judge.

Action by John J. Glodt and another against the Denver Union Terminal Railway Company. Judgment for plaintiffs, and defendant brings error.

Affirmed.

Hughes & Dorsey, John Q. Dier, E. N. Clark, and J. G. McMurry, all of Denver, for plaintiff in error.

John A Rush and Thomas & Thomas, all of Denver, for defendants in error.

ALLEN J.

This is an action brought by John J. Glodt and Albert Glodt hereinafter refered to as the plaintiffs, against the Denver Union Terminal Railway Company, as defendant, to recover damages for the depreciation of the rental and market value of plaintiffs' property, caused by the closing and vacation of parts of certain streets in the city and county of Denver, and the building of a viaduct approach.

The property of the plaintiffs, alleged to have been damaged, is described as lots 13 and 14 in block 5 of Hoyt & Robertson addition to the city of Denver. This block lies between, and is bounded on the easterly and westerly sides, respectively by, Division street and Nineteenth street. Division street, as it runs in a southerly direction, terminates at the southeast corner of the block in question, and just before so ending intersects or crosses Twentieth street diagonally. The block is bounded on its southerly side by Delgany street. The plaintiffs' lots are located practically in the southeast corner of the block; they are each 125 feet deep and 25 feet wide, having a frontage of 50 feet on Delgany street. There is no alley in the rear of the lots, and prior to the time of the injury complained of the plaintiffs' property had two approaches and exits with reference to the business section of the city--one west on Delgany street, to Nineteenth street, and the other east on Delgany street to Twentieth street. The business section of the city lies south of the plaintiffs' property and of Delgany street.

The location of the plaintiffs' property with reference to the streets herein mentioned, and, in general, the facts hereinafter noted, will more clearly appear by reference to the following plat:

(Image Omitted) It is alleged in the second amended complaint that----

'The premises of the plaintiffs have been pocketed and cut off from all practicable or reasonable means of ingress and egress with any part of the city, and have been wholly pocketed and cut off from all means of ingress and egress to and from the business part of the city.'

This situation is alleged to be the result of the construction and maintenance, by the defendant, of a permanent approach or viaduct along plaintiffs' premises, and the closing and vacation of a certain portion of Nineteenth street and a part of Twentieth street.

Various defenses were interposed to the complaint. The cause was tried to a jury, and the trial resulted in a verdict for the plaintiffs. Subsequently a motion for a new trial was overruled, and judgment for plaintiffs entered on the verdict. The defendant brings the cause here for review.

The main contention of the defendant is that----

'Any depreciation in the value of the plaintiffs' lots, resulting from the vacation and closing of Nineteenth street, is damnum absque injuria.'

Numerous cases are cited and discussed in reliance upon what is presented by the defendant as a general rule that----

'only property abutting upon the portion of the street closed is specially damaged by the vacation, and that only such abutter can recover damages or compensation for the taking of his property.'

The rule above mentioned is invoked by the defendant on account of the fact that the plaintiffs' lots do not abut upon the vacated portion of Nineteenth street, nor upon Nineteenth street at all. The part of that street that was closed and vacated, and of the vacation of which the plaintiffs complain, lies between Delgany street and Wynkoop street; all such vacated portion of Nineteenth street lying south of the intersection of Nineteenth and Delgany streets.

The cases in this and in other jurisdictions, which denied a recovery to one whose property was located on another street, or on a different part of the street vacated or obstructed, were generally cases where such plaintiff or complainant was not deprived of the only reasonable means of access to his property. 13 R.C.L. 74, § 65. There are authorities holding that one whose property does not abut upon the street or part of the street which is vacated is entitled to compensation where all access to his property to the system of streets in one direction is cut off. 28 Cyc. 1083.

We cannot, either upon principle or authority, announce or follow, as a rule of law, the proposition stated by defendant's counsel that----

'A plaintiff cannot recover for the vacation or obstruction of a public street unless the portion vacated or obstructed is in front of his property.'

The correct rule, applicable in the instant case, is that the owner of property which does not abut on the part of the street closed is entitled to compensation, provided he is able to prove special and peculiar damage. As said in 15 Cyc. 666:

'Even a nonabutting owner has a right to compensation, if his right of access is entirely cut off, or is impaired to a substantial degree.'

The point to be determined, therefore, in connection with the defendant's contention that the depreciation in the value of plaintiffs' lots resulting from the vacation of Nineteenth street is damnum absque injuria, is whether or not the plaintiffs suffered any damage differing in kind from that sustained by the general public, by reason of the vacation of a part of Nineteenth street. If the plaintiffs did suffer such damage, they are entitled to recovery. Pueblo v. Strait, 20 Colo. 13, 36 P. 789, 24 L.R.A. 392, 46 Am.St.Rep. 273.

The damage, for which recovery may be had, 'must be to the property, or its appurtenances, or it must affect some right or interest which the owner enjoys in connection with the property, and which is not shared with or enjoyed by the public generally.' Gilbert v. Greeley, etc., Ry. Co., 13 Colo. 501, 22 P. 814.

The private right or interest, for the invasion of which the plaintiffs seek compensation, is the easement of access which is appurtenant to their lots. The destruction or infringement of such easement or right is a loss or damage different in kind from that suffered by the rest of the community, and for such damage compensation may be recovered under section 15, article 2, of the Constitution, which provides 'that private property shall not be taken or damaged, for public or private use, without just compensation.' Pueblo v. Strait, supra; Longmont v. Parker, 14 Colo. 386, 23 P. 443, 20 Am.St.Rep. 277.

The closing of Nineteenth street south of Delgany street entirely cut off the plaintiffs' principal way of egress to the business part of the city. The plaintiffs could not, either before or after the vacation complained of, proceed further westerly on Delgany street after reaching Nineteenth street, at the end of their block, because Delgany street, as an open thoroughfare, terminates at Nineteenth street. They would find no means of egress to the business section of the city by going a reasonable distance northerly along Nineteenth street, for there are no traveled cross- streets in that direction, and the territory for some distance on both sides of the street is occupied chiefly by railroad tracks and yards. All access, therefore, from plaintiffs' property to the system of streets in one direction was cut off. Futhermore, it was the one direction they had been accustomed to use, and the most convenient way of reaching the business section of the city. As one of the plaintiffs testified:

'The main way was along Delgany street to Nineteenth street, and along Nineteenth street; * * * the other way [via Twentieth street] was hardly ever used.'

Prior to the closing of Nineteenth street, the plaintiffs could also reach the business section of the city by taking Twentieth street to Wewatta street, one block south, and thence along Wewatta street westerly to Nineteenth street and along Nineteenth street southerly to the city. This way was obstructed and closed by reason of the vacation of portions of Twentieth street and of Wewatta street, by the same ordinance which vacated the part of Nineteenth street theretofore used by plaintiffs. Prior to the trial of this action, however, the defendant provided a driveway between Nineteenth and Twentieth streets, along Wewatta street, whereby Twentieth street could be used to about the same extent as before it was vacated. In this connection it should be noted that Twentieth street for a long distance both north and south of Delgany street, is traversed by the Twentieth street viaduct, and plaintiffs' egress by way of Twentieth street is and was under the viaduct. Various circumstances make the driveway provided by defendant, and Twentieth street beneath the viaduct, inadequate as a reasonable means of access to and from the plaintiffs' lots. Such road is narrow. Furthermore, it is crossed by numerous railroad tracks, frequently used by railroad trains, and for this reason is dangerous. The viaduct, above this roadway, is supported by steel columns, with steel girders connecting some of the columns. It is impossible to travel along Twentieth street directly under the viaduct, because of the cross-girders. Traffic must therefore go along the easterly side of the street. That Twentieth street, under the viaduct, is unsuitable as a public highway, seems to be indicated...

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