Gaskins v. People

• Decision Date: 26 November 1928
• Docket Number: 12046.
• Citation: 84 Colo. 582,272 P. 662
• Parties: GASKINS v. PEOPLE.
• Court: Colorado Supreme Court

272 P. 662

84 Colo. 582

GASKINS v. PEOPLE.

No. 12046.

Supreme Court of Colorado, En Banc.

November 26, 1928

Error to District Court, Jefferson County; Samuel W. Johnson Judge.

Proceedings by the People against Emma Gaskins and others. Judgment was entered against defendant named, and she brings error.

Modified and affirmed.

Denison C.J., and Butler and Walker, JJ., dissenting.

Philip S. Van Cise and Kenneth W. Robinson, both of Denver, for plaintiff in error.

William L. Boatright, Atty. Gen., and William W. Gaunt, Asst. Atty Gen., for the People.

CAMPBELL J.

Our opinion in a companion case, No. 12047, Mike Mongone et al. v. People, 271 P. 617, that was prosecuted by one alleged owner and the tenant, and in which we affirmed an abatement decree against them for maintaining a nuisance in a building on premises owned in part by another, who prosecutes the writ in the case now before us, should be read in connection with this opinion. This writ of error, to the same decree affirmed by us in the other case, is prosecuted by Emma Gaskins, who, as the complaint says, is one of the owners of the property which was declared by the district court to be a nuisance. She was not, as were the other alleged owner and the tenant, served with process, either personally or by publication, did not appear, and was not represented by counsel, yet the court rendered an abatement decree against her and the other alleged owner and occupying tenant, who maintained and conducted a nuisance therein. As to the owner, plaintiff in error Gaskins, who was not served with process and did not appear, we think her inclusion in the decree was not proper, because the record on its face shows she was not a party to the action. The evidence, however, clearly shows that a nuisance was maintained and conducted by her tenant or tenants and the other alleged owner upon the premises, and the decree of the court as to them, as we have already determined in the other case above referred to, was justified and was and is valid.

Gaskins, as owner, is relieved only personally from the provisions of the decree, but her property is bound by it. If the action had been brought against the occupying tenant or tenants alone, and the evidence showed that they maintained a nuisance thereon, an injunction order abating the nuisance would be good, and the provisions of the decree closing the premises for one year valid, notwithstanding the owner of the building was not a party to the action. Counsel for Gaskins say, however, that in Gregg v. People, 65 Colo. 390, at page 394, 176 P. 483, we held that where a tenant maintains a nuisance on the leased premises it is essential to an abatement order that the owner knowingly permitted the premises to be so used, or himself connived therein. The supposed declaration by us was in a case where the only defendant in the abatement action was the owner himself, and he, not a tenant, was charged with maintaining the nuisance, and of course the evidence must show his guilt. We did not there say that where a defendant tenant maintains a nuisance the abatement order against him is not binding against the owner's property. The reasoning in the Gregg opinion is to the contrary, and it has been so held repeatedly by the federal courts under the National Prohibition Act (27 USCA), the provisions of which, as to abatement, are quite similar to those in our statute concerning nuisances.

In Schlieder v. United States, 11 F. (2d) 345, the United States Circuit Court of Appeals of the Fifth Circuit, in considering the contention that the property of an innocent owner cannot be ordered closed after the ejectment of the tenant and the abatement of the nuisance, said that there would be much force in this contention were it not for the provision of the federal statute allowing the owner to bond the injunction and that this provision, although the owner is not made a party to the suit, affords ample protection to him in case his property is adjudged to be a nuisance because of the unlawful acts of his tenants, by giving a bond, which is quite similar to the bond provided for in our statutes, that he would not permit any further unlawful use of the property. Our statute, like the federal statute, provides that after the tenant has been evicted and the nuisance abated, the owner of the building, if he has not been guilty of contempt of court in the proceedings, and appears and pays all costs, fees, and allowances which were made a lien on the building, and files a bond in the full value of the property, conditioned that we will immediately abate the nuisance that may exist and prevent the same from being established or kept thereat within a period of one year thereafter, the court or judge may, if satisfied with the owner's good faith, order the premises which were closed under the order of abatement to be delivered to the owner and the order of abatement canceled so far as the same may relate to the property itself. In the Schlieder Case, supra, the court said this provision of the statute afforded an ample remedy to the owner or property declared to be a nuisance conducted or maintained by his tenant, and though the owner is not made a party to the abatement suit itself, his rights are preserved by the provision concerning the bonding of the injunction. We think that decision is applicable here.

In Grosfield et al. v. United States, 276 U.S. 494, 48 S.Ct. 329, 72 L.Ed. 670, the Supreme Court of the United States, in an opinion by Mr. Justice Sutherland, held that: 'The purpose of the provision of the [National Prohibition] statute authorizing an injunction against occupancy and use is not punitive but preventive, Murphy v. United States, 272 U.S. 630, 632 [47 S.Ct. 218, 71 L.Ed. 446]; and it is no answer to the suit to say that the owner did not participate in the criminal act of the tenant.' The learned judge further said: 'That the tenant may have been ousted and the illegal use of the premises ended before the decree is not conclusive, if the evidence furnished reasonable ground for apprehending a repetition of such use'--citing authorities. And the court, in further answer to the contention of the owner, said that it is 'still within the power of the district court to permit the premises to be occupied or used upon the giving of a bond with sufficient surety in the amount and upon the conditions prescribed by the statute,' citing with approval the Schlieder Case, supra. In the Grosfield Case, supra, the action was brought against both the tenants and the owner, but dismissed as to the tenant and the decree passed against the owner. In United States v. Marhold et al. (D. C.) 18 F. (2d) 779, which was a case against the tenant of a building, in which the owner was not a party and was innocent of the wrongdoing, it was held that the existence of such a state of facts would not preclude the government's right to pursue to a conclusion the remedy sought, which is directed primarily against the premises, because the owner had a sufficient remedy under the provisions of the act by protecting his interests by bonding the injunction.

In Denapolis v. United States (C.C.A.) 3 F. (2d) 722, 723, it was said: 'It is of no concern to the lessees that the owner of the premises was not made a party defendant. The suit is aimed at the unlawful use irrespective of ownership. At the same time the statute confers upon the owner the right to procure possession of his property by giving bond that intoxicating liquors will not be manufactured, kept, or sold thereon.' This principle is applicable here. Emma Gaskins, although she was not made a party, is presumed in law to know what use her tenant is making of her property. It was in fact being used by her tenants for an illegal purpose and therefore subject to abatement as a nuisance, but that owner, notwithstanding that fact, may repossess herself of the premises by giving a bond that they will not thereafter be devoted to an unlawful use; hence the abatement order as to her is binding though she was not a party to the suit in which it was made. In Farrell v. United States Circuit Court of Appeals, Third Circuit, 21 F. (2d) 318, it was held that, as stated in the syllabus: 'Knowledge of the owner that premises are used for illegal purpose is not essential to their abatement as nuisance.'

It should be borne in mind that one has no property right in a nuisance, or in property that is used in maintaining or conducting the same. A nuisance may be both public and private. The state under, or by direction of, its chief magistrate, a county by its sheriff, a municipal corporation by its police, may summarily, and without resort to legal proceedings, by their own act abate a nuisance. And...