Johnson v. Climax Molybdenum Co.

• Decision Date: 13 April 1942
• Docket Number: 14892.
• Citation: 109 Colo. 308,124 P.2d 929
• Parties: JOHNSON et al. v. CLIMAX MOLYBDENUM CO.
• Court: Colorado Supreme Court

124 P.2d 929

109 Colo. 308

JOHNSON et al. v. CLIMAX MOLYBDENUM CO.

No. 14892.

Supreme Court of Colorado

April 13, 1942

In Department.

Error to District Court, Summit County; William F. Luby, Judge.

Proceedings by Climax Molybdenum Company against Herman F. Johnson and another to condemn a right of way. Petitioner obtained immediate possession by making the statutory deposit. To review an order of discontinuance and dismissal on petitioner's motion, respondent brings error.

Affirmed.

Benjamin C. Hilliard, Jr., George A. Trout, and Bart W. O'Hara all of Denver, for plaintiffs in error.

Barney L. Whatley and Walter E. Schwed, both of Denver, for defendant in error.

KNOUS Justice.

Defendant in error, to which we hereinafter refer as the petitioner, instituted the proceeding at bar under the Eminent Domain Act, to condemn a right of way, containing 3.4 acres of land, across certain mining claims belonging to plaintiffs in error (respondents) for a ditch to convey water for the use of petitioner's employees and for its mining and milling operations. Coincidentally, in compliance with section 47, chapter 61, '35 C.S.A., the petitioner obtained immediate possession of the right of way by making the statutory deposit in the sum of $119, the amount fixed by order of the court. Sometime after the cause was at issue but Before any trial had been had, or a day set therefor postponements having been had from time to time by mutual agreement of the parties, the petitioner, alleging that it had abandoned the use of the right of way and ditch in concern, moved for an order dismissing and discontinuing the condemnation proceeding, at its cost, and asking for the return of the deposit theretofore made in acquiring the immediate possession of the premises. Respondents objected to the granting of such motion in advance of an adjudication and award to them in the pending proceeding, of damages for the loss of the use and enjoyment of their premises during petitioner's occupancy thereof under the order for immediate possession, and, additionally, for injury to their lands, both within and without the area of the projected right of way, resulting from the construction of ditches thereon by petitioner during the period of its monopolization thereof.

After arguments the district court granted the motion for discontinuance and ordered the case dismissed at petitioner's cost, but required that the deposit should be 'retained by the Clerk of this Court for a reasonable time, to-wit: not to exceed one year from the date hereof, provided, however, if respondents appeal to the Supreme Court of Colorado and cause Writ of Error to be issued herein within one year from this date then said sum shall be retained by the Clerk of this Court for a period of one year from date remittitur is issued herein by the Supreme Court of Colorado.'

Consistently with their position below, respondents here contend that the district court erred in refusing to retain jurisdiction of the case for the purpose of determining the damages allegedly suffered by them on account of the occupancy of their land by the petitioner subsequent to the taking and previous to the abandonment of the project.

It is to be observed that the question here presented does not involve a consideration of the authority of the district court to order payment to the landowner of costs and expenses in an eminent domain proceeding, as equitable terms to an abandonment and discontinuance by the erstwhile condemner, as was one of the problems in Denver & Rio Grande R. Co. v Mills, 59 Colo. 198, 147 P. 681, Ann.Cas.1916E, 985, but relates solely to the recovery of damages for injuries allegedly occasioned by the entry and temporary possession of the petitioner. The disposition herein made by the district court, both as to the proceedings and deposit, appear to be in strict accord with the decision in Denver & New Orleans R. Co. v. Lamborn, 8 Colo. 380, 8 P. 582, 585, wherein we held that, under our eminent domain statute the condemner retains the right to abandon the project and discontinue the proceedings at any time prior to the payment or deposit of the sum finally awarded by the certificate of commissioners or the verdict of the jury as compensation for the taking, notwithstanding that previously such condemner may have procured a statutory order for possession and actually taken such possession pending the condemnation proceedings. In other words, even though the petitioner obtains possession pendente lite by a statutory order, he may discontinue such possession upon the abandonment of the objective at any time Before he has secured a vested right to the property condemned, when reciprocally the landowner acquires a vested right to compensation for the taking. The opinion in the Lamborn case recognizes that such privilege to discontinue does not relieve a condemner, who has enjoyed the temporary possession of the premises, from liability to the landowner for damages flowing therefrom, and states: 'The latter may, within a reasonable time, have his action for all damages occasioned by the occupancy and use; and the sum deposited by petitioner ...