Jennings v. Board of Com'rs of Montrose County

• Decision Date: 22 April 1929
• Docket Number: 12316.
• Citation: 277 P. 467,85 Colo. 498
• Parties: JENNINGS et al. v. BOARD OF COM'RS OF MONTROSE COUNTY.
• Court: Colorado Supreme Court

277 P. 467

85 Colo. 498

JENNINGS et al. v. BOARD OF COM'RS OF MONTROSE COUNTY.

No. 12316.

Supreme Court of Colorado, En Banc.

April 22, 1929

Error to District Court, Montrose County; Straud M. Logan, Judge.

Proceedings by the Board of County Commissioners of the County of Montrose against John R. Jennings and another to condemn property. From a judgment in condemnation, defendants bring error.

Affirmed.

Frank L. Hays, of Denver, for plaintiffs in error.

John L Stivers and Herbert L. Strang, both of Montrose, for defendant in error.

BUTLER J.

John R Jennings and Myrtle Jennings Allies seek the reversal of a judgment in condemnation.

1. It is contended that the court erred in failing to appoint a commission for the purpose of viewing the property to determine whether or not it was necessary to condemn the land for the purpose of a highway. We cannot sustain the contention.

(1) Section 1304, C. L., provides: 'The board of county commissioners of any county may, and they are hereby authorized, to take and condemn, or cause to be condemned the lands of private persons under and according to said eminent domain act in the first instance without view or other proceeding under this act.'

The discretion of the board, acting within the scope of its authority, is conclusive, unless it clearly appears that its action was fraudulent or unreasonable. No allegation bringing the case within the exception is made in the answer. Lavelle v. Town of Julesburg, 49 Colo. 290, 112 P. 774; Kirkwood v. School District, 45 Colo. 368, 101 P. 343. Indeed, during the trial, one of the attorneys who appeared for the plaintiffs in error at the trial conceded that the board's judgment in reference to the matter was correct.

(2) The request for a commission, when proper, must be made, and the question of necessity must be determined, before steps are taken to ascertain the compensation and damages. The plaintiffs in error, without making such request, stipulated for a jury trial, and participated in that trial, thereby waiving the right to have a commission appointed, if under the statute and their answer they had any such right. Williams v. Routt County Commissioners, 48 Colo. 541, 546, 111 P. 71.

2. The court refused to give plaintiffs in error's requested instruction J, concerning damages. The refusal is assigned as error. The assignment is without merit. The instructions given by the court correctly state...