Hayutin v. Colorado State Dept. of Highways
| Decision Date | 07 June 1971 |
| Docket Number | No. 23605,23605 |
| Citation | 175 Colo. 83,485 P.2d 896 |
| Parties | Robert HAYUTIN, Plaintiff in Error, v. COLORADO STATE DEPARTMENT OF HIGHWAYS, Defendant in Error. |
| Court | Colorado Supreme Court |
Wallace & Hahn, David J. Hahn, Denver, for plaintiff in error.
Duke W. Dunbar, Atty. Gen., Joseph M. Montano, Marlin D. Opperman, Asst. Attys, Gen., for defendant in error.
Plaintiff in Error (plaintiff below), Robert Hayutin, argues in this appeal that he is entitled to damages from the Colorado State Highway Department for the taking of certain property. The facts relevant to our disposition of this appeal are, briefly, as follows:
Hayutin became the owner of a parcel of land located in the northeast quadrant of the intersection of Havana Street and Parker Road in Arapahoe County, Colorado, in 1956. Plaintiff's remote predecessor in title executed an agreement with the State of Colorado in 1955 about six months earlier conveying for right-of-way purposes a strip of land along the westerly portion of the property. The 1955 agreement also stipulated that access to plaintiff's property was to be provided through three forty-foot openings (or 'curb cuts') in the conveyed right-of-way.
In 1955, prior to the date the plaintiff acquired the property, the state improved and widened Havana Street and Parker Road. This project, completed in 1956, involved the construction of raised medians in the middle of these streets. The median on Havana was not constructed directly in front of plaintiff's land, but north thereof. The median on Parker Road was constructed partially in front of plaintiff's property.
After the highway's improvement of 1955--1956, access into the property was possible by left turn movements for south bound and east bound traffic and by right turn movements for north and west bound traffic. Access out of the property could be accomplished by making right and left turn movements from the north curb cut and right turn movements only from the other two curb cuts.
In 1967, the Highway Department altered the intersection by extending the median strips and constructing islands to channelize all right turn movements at both the southwest and northeast quadrants. An island in the northeast quadrant was constructed on public right-of-way directly in front of and across from the north curb cut of plaintiff's property. A lane exclusively for right turn traffic movements was constructed between the plaintiff's property and the island. By such construction all left turns for south bound or east bound traffic were prohibited and north bound traffic likewise cannot make a right turn directly into the property. By circuitous routing toward the east traffic may return in a westerly direction and gain access off the right turn lane through all three curb cuts. Exit from the property is by right turn only also from all three cuts.
Following trial to the court, judgment was entered denying plaintiff's claim for relief. The court held, Inter alia, that:
'For the types of injury or damage of which plaintiff complains, that is, those caused by the inconvenience of a circuitous route and diversion of traffic, the Court concludes there can be no recovery as a matter of law and that the claim for damages as alleged in plaintiff's complaint is damnum absque injuria and as such is not compensable * * *.'
We agree and therefore affirm the holding of the court below.
Plaintiff's first argument is that the intent of the agreement executed by his remote grantor, Near, and the state in 1955 was that the land acquired by the state would not be used to in any way limit or interfere with accessibility to the remainder of the property. We find this contention to be without merit. In our opinion, the language of the agreement is clear: It calls for a transfer of a strip of land to the state for right-of-way purposes and provides for three 40-foot openings in the boundary line thereof. These openings, as the evidence revealed, were provided and they have not in any way been disturbed or interfered with. Plaintiff, we submit, is attempting to place upon the terms of the contract something which cannot be found from an analysis of the language within the four corners thereof. Where the contract is not ambiguous, and we believe that in this case it is not, it cannot be varied by parol evidence. Thompson v. Sweet, 91 Colo. 522, 19 P.2d 308 (1932). See also Sentinel Acceptance Corporation v. Colgate, 162 Colo. 64, 424 P.2d 380 (1967). While parol evidence may certainly be admitted to explain an agreement, Von Riesen v. Greeley Finance Co., 142 Colo. 210, 350 P.2d 340 (1960), the explanation which the plaintiff seeks to give here is entirely inconsistent with the language in the agreement. What plaintiff is attempting to do is not to explain, but to give the agreement an entirely different meaning.
Plaintiff next alleges that the law imposes a duty upon the state, at the time it acquires property, to fully advise property owners of the nature of the taking of their property, and here there was sufficient evidence to establish estoppel and to establish actionable misrepresentation and concealment. The lower court held on this point that the plaintiff had failed to establish events giving rise to an estoppel and that the evidence presented was insufficient to support plaintiff's allegations of misrepresentation and concealment concerning the Highway Department's development plans as related to plaintiff's property. We agree.
The evidence is clear that there was no misrepresentation to anyone, not even to Mr. Near from whom the land was purchased. In 1955 and 1956, the project for which the land was acquired was to improve the intersection of Parker Road and Havana Street. There has been no allegation or statement that the Highway Department misrepresented anything to Mr Near at that time. It is only when some 11 to 12 years later the intersection was again improved that allegations of misrepresentation are asserted.
Inasmuch as the Highway Department did not design the 1967 construction...
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