Dunham v. City of Golden, 72--099

• Decision Date: 14 November 1972
• Docket Number: No. 72--099,72--099
• Parties: Robert G. DUNHAM and Mary Dunham, his wife, Plaintiffs-Appellants, v. The CITY OF GOLDEN, a municipal corporation, et al., Defendants-Appellees. . I
• Court: Colorado Court of Appeals

Page 360

504 P.2d 360

31 Colo.App. 433

Robert G. DUNHAM and Mary Dunham, his wife, Plaintiffs-Appellants, v. The CITY OF GOLDEN, a municipal corporation, et al Defendants-Appellees.

No. 72--099.

Colorado Court of Appeals, Div. I.

Nov. 14, 1972.

Rehearing Denied Nov. 28, 1972.

Robert Gordon, Golden, for plaintiffs-appellants.

Fleming, Pattridge, Hacking & Gardner, Conrad E. Gardner, Golden, for defendant-appellee Mayford Peery.

Lyle E. Miller, Golden, for defendants-appellees City of Golden, a municipal corporation, and Jon Andren, mayor of City of Golden.

DWYER, Judge.

Robert G. Dunham and Mary Dunham, plaintiffs-appellants, brought this action to prevent the City of Golden from condemning a portion of their land. The court dismissed the action upon the grounds that the complaint failed to state a claim upon which relief could be granted. We affirm the judgment.

Plaintiffs are the owners of a tract of land located in the City of Golden. A north-south street known as Garden Street is adjacent to the east boundary of plaintiffs' land. Garden Street extends to the south boundary of a tract of land owned by Mayford Peery. The Peery land lies north of and adjacent to plaintiffs' land.

On October 14, 1971, pursuant to a request by Mayford Peery and others, the Council of the City of Golden adopted a resolution authorizing the institution of condemnation proceedings to acquire from plaintiffs land necessary to widen Garden Street. Plaintiffs then filed a complaint against the City, its Mayor, and Mayford Peery in which they alleged that the purpose of the condemnation proceedings authorized by the City Council was to provide access to the private lands of Mayford Peery and that the City of Golden was without right or power to condemn plaintiffs' private property for a strictly private use. Plaintiffs prayed for a 'Writ of Quo Warranto or other appropriate injunction against the City of Golden and its Mayor Jon Andren or for such alternative or additional relief so as to protect the plaintiffs from the unlawful taking of their lands . . ..'

The question on appeal is: if a complaint by a landowner alleges that a proposed condemnation proceeding will result in private land being condemned for a strictly private use, does that complaint state a claim upon which relief may be granted? This question is answered in the negative.

Colorado follows the rule that an injunction action will not lie to prevent suits in eminent domain. Ambrosio v. Baker Metropolitan Water and Sanitation District, 139 Colo. 437, 340 P.2d 872; Glendale v. Denver, 137 Colo. 188, 322 P.2d 1053; Scanland v. Board of County Commissioners, 97 Colo. 37, 46 P.2d 894; Colorado Central Power Co. v. City of Englewood, 10 Cir., 89 F.2d 233.

In Glendale v. Denver, Supra, our supreme court quoted with approval the following statement in 2 J. Lewis, Eminent Domain § 646 (2d ed.):

"A bill in equity will not lie to enjoin proceedings for condemnation, for the reason that the mere taking of such proceedings does no injury to property, and for the further reason that the grounds relied upon for an injunction may be urged in defense of the proceedings."

Plaintiffs argue that the court should determine in the present action the merits of their contention that the proposed taking by the City is for a private use and not for a public purpose because the statute under which the City is proceeding prohibits the court from considering this objection in the condemnation proceedings. We do not agree with plaintiffs' construction of the statute. C.R.S.1963, 50--6--5, provides:

'Any defendant shall have the right to appear in said proceeding and file an answer, in writing, with the clerk of said court, at any time prior to the date fixed for the hearing of said petition, but not thereafter,...