Gayton v. Department of Highways

• Decision Date: 15 January 1962
• Docket Number: No. 19695,19695
• Citation: 367 P.2d 899,149 Colo. 72
• Parties: Pearl N. GAYTON also known as Pearl Gayton, Plaintiff in Error, v. DEPARTMENT OF HIGHWAYS, State of Colorado, Defendant in Error.
• Court: Colorado Supreme Court

Page 899

367 P.2d 899

149 Colo. 72

Pearl N. GAYTON also known as Pearl Gayton, Plaintiff in Error, v. DEPARTMENT OF HIGHWAYS, State of Colorado, Defendant in Error.

No. 19695.

Supreme Court of Colorado, En Banc.

Jan. 15, 1962.

Lattimer & Robb, Pueblo, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., John P. Holloway, Chief Highway Counsel, Asst. Atty. Gen., James R. Richards, Asst. Atty. Gen., for defendant in error.

McWILLIAMS, Justice.

In response to Gayton's complaint the Department of Highways, State of Colorado, hereinafter referred to as the Highway Department, filed a motion to dismiss, averring 'that the complaint fails to state a claim upon which relief can be granted.' The motion was granted and a judgment of dismissal was duly entered, Gayton electing to stand on her complaint. By writ of error Gayton now seeks reversal of this judgment of dismissal, contending that her complaint as drawn is legally sufficient to withstand this motion to dismiss for failure to state a claim. Accordingly it becomes necessary to examine the complaint with particularity.

At the outset, certain basic rules governing motion to dismiss for failure to state a claim should be noted. In Dillinger v. North Sterling Irrigation District, 135 Colo. 100, 308 P.2d 608, 609, it was said:

'In passing on a motion to dismiss a complaint for failure to state a claim, the court must consider only those matters stated within the four corners thereof.'

Also, it is axiomatic that for the purpose of ruling on a motion to dismiss for failure to state a claim, those matters in the complaint which are well pleaded are assumed to be true. See, for example, Stapp v. Carb-Ice Corporation, 122 Colo. 526, 224 P.2d 935.

Proceeding then to a consideration of the complaint, Gayton alleges that she owns certain real estate in Pueblo and that located thereon are certain rental apartments; that the rear and of this property abuts on a public alley, and that this alley 'was and is the only way by which the plaintiff has any access to and from her real estate.' From the complaint it is also learned that this public alley runs in an east-west direction, emptying into Albany Avenue at its westerly end and, prior to 1958, into Bradford Avenue on the east. However, according to the complaint, the Highway Department in 1958 'for the purposes of a freeway, and pursuant to a resolution of the State Highway Commission * * * fenced and completely closed the aforesaid public alley * * * at its easterly end where it intersects with Bradford Avenue.' Gayton complains that because of this action on the part of the Highway Department she and her tenants and their guests have been 'limited' in their means of access to and from this property and that they have been 'completely denied * * * rights of ingress to or egress from the general system of streets in an easterly direction.'

The sole question to be resolved is whether the complaint as drawn sets forth a 'claim upon which relief can be granted.' We conclude that the complaint does not state such a claim and that the trial court was correct in dismissing this complaint for its failure to so do.

It is Gayton's contention that because of the barricade erected by the Highway Department at the point where the public alley intersects with what prior to 1958 was Bradford Avenue, but which is now a modern high speed freeway, she and her tenants are now 'limited' and restricted in their means of access to the general street system of Pueblo. In other words, before the erection of this barricade she and her tenants had access from her property to the street system of Pueblo by proceeding in either an easterly or westerly direction on this public alley, but because of the barricade they can now gain access only by proceeding along the alley in a westerly direction. There is no allegation that they have been denied all access to the street system of Pueblo. On the contrary it is readily apparent from the complaint that they still have access to the Pueblo streets via Albany Avenue, and there is no allegation that such means of access is either difficult or unreasonable.

The gravamen of the complaint is that Gayton has a constitutionally protected right to two avenues or means of access to the Pueblo street system. It is to be noted that she does not challenge the authority of the Highway Department to erect the barricade, nor does she suggest that its action in so doing is unreasonable. Modern freeways permit only limited access thereto, and to permit entrance of an alley into a freeway is obviously impractical from an engineering standpoint. So, Gayton in effect concedes that the Highway Department acted properly in building the barricade at the point where the alley empties into the freeway, but claims that such has damaged her property, presumably by a diminution in its fair market value. In support of her claim for damages she cites Article II, section 25 of the Colorado Constitution, which states that 'no person shall be deprived of life, liberty or property, without due process of law' and Article II, section 15 of the Colorado Constitution which provides that 'private property shall not be taken or damaged, for public or private use, without just compensation.'

In People ex rel. Department of Public Works v. Symons, 54 Cal.2d 855, 9 Cal.Rptr. 363, 365, 357 P.2d 451, 452 the Supreme Court of California made the following general observations which serve as an excellant starting point for disposition of the instant case:

'It has long been recognized that there is no right to recover for all elements of damage caused by the construction of a public improvement. * * * 'The constitution does not, however, authorize a remedy for every diminution in the value of property that is caused by a public improvement. The damage for which compensation is to be made is a damage to the property itself, and does not include a mere infringement of the owner's personal pleasure of enjoyment. Merely rendering private property less desirable for certain purposes, or even causing personal annoyance or discomfort in its use, will not constitute the damage contemplated by the constitution; but the property itself must suffer some diminution in substance, or be rendered intrinsically less valuable, by reason of the public use.' * * * 'Not every depreciation in the value of the...