Healy v. City of Delta
| Decision Date | 05 April 1915 |
| Docket Number | 7358. |
| Parties | HEALY v. CITY OF DELTA. |
| Court | Colorado Supreme Court |
Appeal from District Court, Delta County; Sprigg Shackelford, Judge.
Eminent domain by the City of Delta against Edward Healy. From a judgment for condemnor, defendant appeals. Reversed and remanded, with direction to dismiss.
Sherman, Moynihan & Sherman, of Montrose, for appellant.
I. N. Stevens, G. Q. Richmond, and C. A. Prentice, all of Denver, amici curiae.
In this cause the city of Delta, by proceedings under the Eminent Domain Act, obtained a judgment giving it a strip of land belonging to the plaintiff in error, and constituting a part of the bed of the Uncompahgre river, with the right to use said river for the conveyance of the city's sewage.
It is assigned as error that the court was without jurisdiction to enter the judgment, which, in effect, condemns the waters of the river and makes it a part of the sewer system. This is the only question necessary to be considered. Municipal corporations can exercise the right of eminent domain only to the extent to which the power had been conferred upon them by statute.
'Not only must the authority to municipal corporations, or other legislative agents, to take private property be expressly conferred, and the use for which it is taken specified, but the power, with all constitutional and statutory limitations and directions for its exercise, must be strictly pursued.' Dillon, Mun. Corps. (5th Ed.) § 1040.
See, also, Lewis on Eminent Domain, § 240; Allen v. Jones, 47 Ind. 438.
The statutes of the state grant to municipal corporations authority to condemn land for streets, and for other purposes, including the right of way for sewers, but we find no statute which provides for their condemning a public stream for the purpose of making it a part of a sewer system.
There being no statutory authority for the proceeding, the judgment is invalid.
Judgment is reversed, with directions to dismiss the cause.
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Fishel v. City and County of Denver
... ... of the cases last above enumerated, such power passed to the ... city by the Twentieth Amendment. The cases of Healy v ... City of Delta, 59 Colo. 124, 147 P. 662, and Mack v ... Town of Craig, 68 Colo. 337, 191 P. 101, wherein we held ... that the general ... ...
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Game and Fish Commission v. Farmers Irr. Co.
...condemnation proceedings had been undertaken by the commission. See Mack v. Town of Craig, 68 Colo. 337, 191 P. 101. In Healy v. City of Delta, 59 Colo. 124, 147 P. 662, it was held 'Not only must the authority to municipal corporations, or other legislative agents, to take private property......
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State ex rel. Olcott v. Hawk
... ... 483, 15 N.E ... 601; Tacoma v. State, 4 Wash. 64, 29 P. 847; ... Healy v. City of Delta, 59 Colo. 124, 125, 147 P ... 662; Water Works Co. v. Burkhart, 41 Ind ... ...
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Mack v. Town of Craig
...that neither the public waters, nor the beds or channels of public streams, can be condemned and taken under eminent domain. Healy v. Delta, supra. It contended that no such attempt is here being made. However, it is to be noted that the authorities hold that a pollution of a public stream ......