Fishel v. City and County of Denver

• Decision Date: 12 November 1940
• Docket Number: 14679.
• Citation: 108 P.2d 236,106 Colo. 576
• Parties: FISHEL v. CITY AND COUNTY OF DENVER.
• Court: Colorado Supreme Court

108 P.2d 236

106 Colo. 576

FISHEL v. CITY AND COUNTY OF DENVER.

No. 14679.

Supreme Court of Colorado, En Banc.

November 12, 1940

Rehearing Denied Dec. 16, 1940.

Error to District Court, Arapahoe County; Charles E. Herrick Judge.

Proceeding in eminent domain by the City and County of Denver against Gilbert B. Fishel to condemn certain lands. To review a judgment, defendant brings error.

Affirmed in part, and remanded in part, with directions.

Howard Roepnack, of Arvada, for plaintiff in error.

Malcolm Lindsey, E. L. Fundingsland, and Wayne D. Williams, all of Denver, for defendant in error.

KNOUS Justice.

In the court below defendant in error, to which reference is herein made as the city, instituted this proceeding in eminent domain to condemn certain lands of plaintiff in error, whom we shall designate as Fishel, situate in Arapahoe county. On the trial the jury returned a verdict describing the property taken and fixing the value of the land and improvements at $7,000. Judgment was entered on the verdict, to review which Fishel prosecutes a writ of error. So far as generally pertinent to this review the petition alleges that August 26 1937, 50 Stat. 862, § 2, there became effective an act of Congress authorizing the establishment in or near Denver of a branch of the Air Corps Technical School, and acceptance on behalf of the United States of title to lands within and without the city for use as a site thereof, as well as a tract of land suitable for use as an aerial and gunnery bombing range, for the acquisition of all of which lands the people of Denver previously had voted bonds in the sum of $750,000; that thereafter by ordinance, the Denver city council declared the establishment of such school would accomplish a public, local municipal purpose, and authorized the proper officers of the city to proceed forthwith to do all things expedient, and to bring all actions necessary, in and about the furnishing by the city of the lands and building sites contemplated by the ordinance; that the Secretary of War of the United States had selected Fishel's property as a part of the site for the bombing field and requested the city to obtain title thereto; that the suit was brought in the exercise of the power of eminent domain conferred upon the petitioner under and by virtue of the State Constitution and statutes and the charter of the city, and that said property was 'needed by the petitioner for a public purpose of the petitioner.'

In McNichols v. Denver, 101 Colo. 316, 74 P.2d 99, we determined that the expenditure by the City and County of Denver of funds to be derived from the issuance and sale of the above-mentioned municipal bonds for the acquisition of lands for the use of this Air Corps Technical School and bombing field, was for a local municipal purpose and declared that such bond issue was valid.

The principal question presented for our consideration in the instant proceeding is whether the city is authorized to exercise the power of eminent domain. In this connection Fishel contends: First, that the state of Colorado is without the power to condemn private property within its jurisdiction for the public use of the United States and, hence, because of such status of destitution, could not possibly delegate such authority to the city; second, that if the state actually possesses such power of eminent domain, it has not delegated the same to the city for the particular purpose herein involved.

In the first instance, these questions were raised by demurrer which generally has been regarded as permissible (2 Lewis on Eminent Domain, 3d Ed., § 590; 18 Am.Jur. p. 970, § 326) although in this jurisdiction the practice seems to have been to raise such issues by answer.

After the termination of the trial Fishel objected to the entry of judgment on the same grounds. The latter objection was untenable, as questions of this nature must be raised in advance, and be determined by the court in limine. Pine Martin Mining Co. v. Empire Zinc Co., 90 Colo. 529, 11 P.2d 221; Wassenich v. Denver, 67 Colo. 456, 186 P. 533. Where, as here, respondent elects to challenge the right of petitioner to condemn by demurrer, the well-pleaded allegations of the petition must, for the purposes of the demurrer, be assumed to be true, as in ordinary cases, and a respondent may not ground a legal theory on extrinsic facts which are neither pleaded nor proved. If reliance is to be placed on such, they should be introduced by plea or answer. See, 2 Lewis on Eminent Domain, 3d Ed., § 591; 18 Am.Jur. p. 970, § 326. We make the above observations at this point to demonstrate, as we conceive, the deficiency in the factual premise upon which Fishel's legal argument, as to his first contention, must depend. The two cases upon which he relies as being decisive of the question are People ex rel. Trombley v. Humphrey, 23 Mich. 471, 9 Am.Rep. 94, and Darlington v. United States, 82 Pa. 382, 22 Am.Rep. 766. In the Trombley case, decided in 1871, it was held that an act of the Michigan Legislature, which undertook to authorize the Governor to condemn private lands within the state for the purpose of turning the same over to the United States for the erection and maintenance of lighthouses thereon, was unconstitutional upon the basis that inherently a state may not authorize the taking of property within its jurisdiction for the use of the United States in carrying out the public and governmental functions assigned exclusively to it by the Federal Constitution. The Darlington decision seems to rest upon several other points of statutory construction and is pertinent to the question under consideration only to the extent that it quotes from the opinion in the Trombley case and approves that decision. 'The decision in People ex rel. Trombley v. Humphrey, undoubtedly is based upon the view that the purpose for which the land was condemned was for a federal use only and had no relation to the needs of the state.' Via v. State Commission, D. C., 9 F.Supp. 556, 561. Almost without exception other courts considering the Trombley decision have made analogous expressions concerning its scope. See State ex rel. v. Milwaukee, 156 Wis. 549, 146 N.W. 775; Rockaway Pacific Corporation v. Stotesbury, D. C., 255 F. 345; Orr v. Quimby, 54 N.H. 590; Kohl v. United States, 91 U.S. 367, 23 L.Ed. 449. In order, therefore, to make applicable the doctrine announced in the Trombley case to the proceeding Before us, counsel for Fishel argues that the project is for exclusive federal use, as is illustratively disclosed by the statements in his brief, that, 'The Air Corps Technical School and the bombing range are institutions established for the purpose of the United States. Exercise of this power is solely in aid of the sovereignty of the United States'; and, 'The case at bar involves a use for the United States to the exclusion of the use by the inhabitants of Denver.' The allegations of the petition, which, as we have observed, must be taken as true, do not support the premise adopted. On the contrary, the petition sets forth that the bonds voted by the people were to provide a fund to be used for purchasing sites for the school 'in cooperation with the federal government,' and alleged that the establishment of the school and bombing field would be of local use and benefit to the city and its people.

The further lack of pertinency of the Trombley case to the situation disclosed by the record here is shown by the following recital from the opinion: 'It is suggested by the eminent counsel for the relator that the proceeding may be sustained on the ground of the interest of the state, by reason of its coast-wise commerce, in the establishment of light-houses upon these waters. But the act does not proceed on any theory of state interest. It assumes that the taking is to be for the United States exclusively. It is not necessary for us to consider, therefore, what might be the result were the theory of the act different.' In contrast, the petition in the case at bar alleges that the effective ordinance 'found, determined and declared that the establishment of said school and appurtenances would accomplish a public, local and municipal purpose and would facilitate air transportation service at Denver and better enable the petitioner to provide skilled mechanics and technical advantages essential to creating airways to and through Denver,' and thus, legislatively at least, proclaimed a concurrent federal and local use.

Upon the record Before us this proceeding is not brought within the purview of the Trombley decision, even if its pertinent pronouncements be considered as sound.

In McNichols v. Denver, supra, we determined that this project was a public one. We further held, upon the grounds specified in the opinion, that it possessed the necessary local and municipal character to empower the city to participate in its creation to the extent contemplated. Concerning the effect of the duality of the association of the United States and the city, we said [101 Colo. 316, 74 P.2d 104]: 'The more fact that the control and management of the air school will be retained by the federal government through the War Department obviously does not create an exclusive federal purpose so as to debar the proposed participation by the city as note being a proper local and municipal purpose.' Where a state or a municipality under its authorization seeks to take land under the right of eminent domain for a lawful local state or municipal purpose, the circumstance that such land is later to be turned over to the United States to better effectuate the public object of the taking is no valid objection to the condemnation. Lancey v. King County, 15 Wash. 9, 45 P. 645, 34 L.R.A. 817; State...