Evans v. District Court In and For Boulder County

• Decision Date: 18 June 1973
• Docket Number: No. 25942,25942
• Citation: 511 P.2d 471,182 Colo. 93
• Parties: Deborah Dewey EVANS et al., Petitioners, v. DISTRICT COURT IN AND FOR the COUNTY OF BOULDER, State of Colorado, et al., Respondents.
• Court: Colorado Supreme Court

Page 471

511 P.2d 471

182 Colo. 93

Deborah Dewey EVANS et al., Petitioners, v. DISTRICT COURT IN AND FOR the COUNTY OF BOULDER, State of Colorado, et al., Respondents.

No. 25942.

Supreme Court of Colorado, En Banc.

June 18, 1973.

Rehearing Denied July 2, 1973.

Woolf & Chrisman, Marvin B. Woolf, Boulder, for petitioners.

Akolt, Dick, Rovira, DeMuth & Eiberger, Lael S. DeMuth, J. Walter Hyer, III, Denver, for respondents.

DAY, Justice.

Petitioners herein commenced this action in the district court for Boulder County requesting that the Town of Eldora be declared abandoned under the provisions of C.R.S.1963, 139--19--1 et seq. Certain residents or property owners contested the matter, contending that the Town should not be declared abandoned and counterclaimed asking for an election of Town officers since all the municipal officers who could call for or conduct an election were dead.

Upon hearing on motion for summary judgment, the trial court found no genuine dispute as to the material questions of fact. Specifically, the court found that for far in excess of twenty years there had been no municipal government in Eldora. The court found that there were no outstanding unsatisfied bonds or other municipal indebtedness existent. The trial court concluded that abandonment as set forth in the statute had been shown. The court then refused to enter the decree required by the statute and ordered an election to be held by the townspeople within thirty days on the question: 'Whether or not the Town of Eldora should be declared to have been abandoned.'

The order additionally required the election to be under supervision of the court which would require appointment of some person 'who must be compensated.' A requirement that $5,000 be deposited with the court by the objectors to defray the election costs and supervision was also incorporated into the order.

From this expanded action of the court, petitioners bring this original proceeding seeking a writ of prohibition, alleging the court was without jurisdiction to compel by judicial decree an election on the question of abandonment. We issued a rule to show cause and now make the rule absolute.

The applicable statute is quite explicit as to the showing required to be made and the court decree which is to follow.

Since this is a statutory proceeding, if the trial court finds--as it did--that there has been no town government for at least twenty years and that there is no outstanding indebtedness, ...