Gibson v. Cann
| Decision Date | 06 May 1901 |
| Citation | 66 P. 879,28 Colo. 499 |
| Parties | GIBSON v. CANN. |
| Court | Colorado Supreme Court |
Appeal from district court, Arapahoe county.
Action by John W. Gibson against Noah Cann. From a judgment of dismissal, plaintiff appeals. Reversed.
L. E. Kenworthy and J. M. Washburn, for appellant.
Chas. By Heyt, Daniel Sayre, and George W. Miller, for appellee.
This action was commenced by appellant for the purpose of condemning a right of way for a ditch and land for reservoir sites across and on the lands of appellee; the waters thus conducted and conserved to be used for irrigation. A commission was appointed to ascertain the necessity for taking the lands sought to be condemned. On the issue of necessity, the cause was submitted to the commission upon the theory that in determining this question it was proper to consider the practicability and feasibility of obtaining water from sources from which it was intended to supply the ditch and reservoirs in sufficient quantity to be of any practical value or benefit for the purposes of irrigation. Evidence was introduced on behalf of appellee tending to establish this issue in his favor. The commission found 'that there is no necessity for the taking of said lands it not being feasible or practicable to obtain water subject to lawful appropriation to irrigate the lands held by plaintiff * * * through the irrigating ditch described in plaintiff's petition.' On this return a judgment was entered dismissing the proceedings.
In the printed briefs of appellant numerous questions are argued which we do not deem it necessary to pass upon, save the one which challenges the constitutionality of the law permitting the question of necessity for the taking of lands sought to be condemned to be inquired into. The constitution vests certain parties with the authority to exercise the right of eminent domain. It does not state that this power can be exercised without reserve. The constitution is but a limitation upon the legislative power, and any act which is not thereby prohibited is valid. So that, although the constitution recognizes the right of eminent domain, it is proper for the legislature to impose just limitations which do not prevent the exercise of the right. Parties having the constitutional authority may condemn lands, but it is certainly proper to limit this right to the extent of their needs.
On oral argument it was suggested by counsel for appellant that, in determining the question...
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United States v. O'Neill
... ... they involve the element of necessity for the taking, are not ... open to judicial inquiry and determination. Gibson v ... Cann, 28 Colo. 499, 66 P. 879; Railroad Co. v ... Telegraph Co., 30 Colo. 133, 69 P. 564, 97 Am.St.Rep ... 106; Warner v. Town of ... ...
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Caw Equities, L.L.C. v. City of Greenwood Vill.
...it is proper for the legislature to impose just limitations which do not prevent the exercise of the right." Gibson v. Cann , 28 Colo. 499, 501, 66 P. 879, 880 (1901) ; see also Davidson , 83 P.3d at 658 n.9 ("Only legislation which 'directly or indirectly limits, curtails or destroys the r......
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The Glenelk Ass'n Inc. v. Lewis
...to be benefited by a private condemnation. E.g., Mortensen v. Mortensen, 135 Colo. 167, 170, 309 P.2d 197, 199 (1957); Gibson v. Cann, 28 Colo. 499, 66 P. 879 (1901). For example, in Schneider v. Schneider, 36 Colo. 518, 522, 86 P. 347, 348 (1906), we held that the condemnee could not chall......
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Pine Martin Mining Co. v. Empire Zinc Co., 12573.
...be a financial success, cannot be inquired into even by commissioners charged with the duty of determining the question of necessity. Gibson v. Cann, supra; Haver v. Matonock, 75 Colo. 301, 225 P. Schneider v. Schneider, 36 Colo. 518, 86 P. 347. And clearly such questions are not for the de......