Jackson v. Ackroyd

• Decision Date: 20 February 1891
• Citation: 15 Colo. 583,26 P. 132
• Parties: JACKSON v. ACKROYD.
• Court: Colorado Supreme Court

26 P. 132

15 Colo. 583

JACKSON v. ACKROYD.

Supreme Court of Colorado

February 20, 1891

Commissioners' decision. Error to district court, Arapahoe county.

Defendant in error commenced this suit on the 23d day of February 1886, by filing a complaint in which it is alleged that she then was, and at all times since January 17, 1883, has been the owner in fee-simple of certain property, describing the same, and of the buildings and improvements thereon 'which but for the injuries hereinafter complained of would be of the value of, to-wit, fifteen thousand dollars but which, because of said injuries, are only of the value of seven thousand five hundred dollars.' '(2) That the property abuts on Sixth street, in the city of Denver, which street has at all times since November, 1861, been one of the public streets of the city of Denver,' etc. '(3) That long prior to the appointment of said defendant, as receiver of said railroad company, the said railroad company entered upon said street in front of the premises of the plaintiff, and near the center of said street, and constructed a grade or embankment thereon six feet high, and wide enough for a double-track railway, which it then laid down on said grade, and continued to occupy the same for railroad purposes from thence until the appointment of said receiver, and for the running of cars propelled by steam, leaving a space of only about eight feet between their said embankment and the outer edge of the sidewalk. That since the appointment of defendant as receiver of said company, and on, to-wit, the 1st day of September, A. D. 1884, he, as such receiver, entered upon that portion of the street lying between the said embankment in front of plaintiff's premises and the sidewalk, and built thereon another or an addition to the said railroad grade to the height of six feet, and of the width of eight feet, thereby occupying all of said street not previously occupied by said grade adjacent to plaintiff's said premises except the sidewalk, and encroaching on said sidewalk two feet; so that by the wrongful acts of said receiver all ingress and egress to and from her said lots have been wholly cut off for vehicles of all kinds, except upon the sidewalk, the safety of her said property endangered, the comfortable and profitable enjoyment thereof in vaded, the rental values decreased one-half, and the actual value thereof decreased in the sum of seven thousand five hundred dollars; and that all of said acts of the said received were committed against the will of plaintiff, and without compensation to her. (4) That at all times since the construction of said additional embankment by the said receiver he has been charged with the sole management of said railroad, and has been running trains of cars on and over said railroad in front of plaintiff's said premises, at all hours of the day and night, and has been and is now occupying the said embankment for railroad purposes, to the exclusion of the public and of the plaintiff from the use of said street, and the special damage of the plaintiff as aforesaid. (5) That the said William S. Jackson was duly appointed receiver of the said railroad company by the circuit court of the United States on the 9th day of July, A. D. 1884, and qualified and took control and sole management of the said railroad property and equipment thereof on the 11th day of the same month, by virtue of the order and decree of said honorable court, made in a certain cause then and now pending in said court, wherein Elias L. Frank et al. are complainants, and the Denver & Rio Grande Railway Company et al. are defendants, and that he is now operating, controlling, and managing all of the affairs and business of said railway by vitue of his said appointment. Wherefore plaintiff demands a judgment against said William S. Jackson, as receiver as aforesaid, for the sum of seven thousand and five hundred dollars, her damages as aforesaid, and for the costs of this suit.'

A demurrer was filed on the ground that the complaint did not state a cause of action, which was overruled. Defendant answered specifically, denying the allegations of the complaint, and as a special defense alleged the corporate character of defendant; the granting of the right of way to defendant by the city by an ordinance of June, 1871, through the street in question, and in front of the premises of plaintiff, authorizing it to build, maintain, and operate the railway along and over the street, 'together with the right to lay down a single or double tracks, switches, or sidings,' etc.; setting out the ordinance in haec verba, in which it is provided that the established grade of a railway through the street in front of plaintiff's property should be regarded as the grade of the street; alleges the construction of the road upon an embankment in the street; the continual operation of the same, without objection on the part of plaintiff, until it went into the hands of the receiver on the 12th day of July, 1884; and continues as follows: 'And this defendant further alleges that the said embankment on which said railway is situated, along and at the side of the premises of the plaintiff, has not been raised or widened since the year 1880; that the grade line of railway along said street is still the established grade of said street as such; that ever since the construction of said railway, and of said embankment, the same have been situated, operated, and used in the same manner as at the time of the institution of this suit; that the same have been so situated and so operated for more than six (6) years prior to the beginning of this action, during all of which said time plaintiff has made no complaint and raised no objection to the existence or operation of the same;' and for a further defense pleads that the cause of action did not accrue within six years. The special defenses were traversed by a replication. On June 8 and 9, 1887, trial was had to a jury.

The defendant, among others, prayed the court to give the following instructions: '(4) The defendant is not liable to the plaintiff for any depreciation of the value of the property mentioned in the complaint prior to the purchase of the same by the plaintiff. (5) If you find from the evidence that the defendant's railroad had been constructed and operated before the plaintiff's purchase of her property substantially the same as it has been since, and that the plaintiff bought the property with knowledge of the existence and operation of the railroad in front of same, then she is not entitled to recover from the defendant by reason of the continued operation and maintenance of said railroad. (6) Where one buys a city lot bordering upon ground set apart or dedicated to any public use, he takes it subject to all the annoyances incident to the...