Kratzenstein v. Board of County Com'rs of Weld County
| Decision Date | 08 December 1983 |
| Docket Number | No. 83CA0223,83CA0223 |
| Citation | 674 P.2d 1009 |
| Parties | Van KRATZENSTEIN and Diane Kratzenstein, Plaintiffs-Appellees, v. The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF WELD, Colorado, and the County of Weld, Colorado, Defendants-Appellants. . III |
| Court | Colorado Court of Appeals |
Dinner, Hellerich & Lazar, Thomas E. Hellerich, Greeley, for plaintiffs-appellees.
R. Russell Anson, Asst. County Atty., Greeley, for defendants-appellants.
Defendants, Weld County and its Board of County Commissioners (County), appeal the decision of the trial court awarding plaintiffs, Van and Diane Kratzenstein, $8,213 compensation in an inverse condemnation proceeding. The County contends that the injury complained of is not a "taking" within the meaning of the Colorado Constitution. It asserts that plaintiffs' claim is for negligently caused damages, but that they are precluded from recovering those damages because of failure to give notice as required by the Colorado Governmental Immunity Act. We agree with the County and therefore reverse.
In 1977, plaintiffs purchased residential property located at 5520 24th Street, in Greeley. In 1977, property owners along 24th Street and Fairway Lane, an intersecting street, sought to create an improvement district for the purpose of paving the two streets. The County refused to assume responsibility for paving the streets, but, in return for compensation, agreed to grade and design the streets for the property owners. The property owners obtained independent contractors for the construction.
The paving of the streets, and installation of curbs and gutters, resulted in a 7 to 9 inch increase in elevation of 24th Street. As a result of the rise in elevation, the plaintiffs experienced drainage problems causing flooding in the front yard and basement of their home.
The plaintiffs filed a complaint in the trial court on the several grounds of inverse condemnation, breach of warranty, negligence, and trespass. The action was pursued on an inverse condemnation basis, and the trial court conducted an eminent domain proceeding. See Ossman v. Mountain States Telephone & Telegraph Co., 184 Colo. 360, 520 P.2d 738 (1974). The basis of the plaintiffs' claim for relief is that the design of the streets was "faulty." The plaintiffs assert that County should have designed and graded the streets at a lower level, and as a result of the County's negligent failure to do so, their property is subject to severe drainage damage.
Finding that plaintiffs' severe drainage problems constitutes a taking under the Colorado Constitution, Colo. Const. Art. II, Sec. 15, the trial court entered the inverse condemnation judgment here appealed from. This section states in pertinent part:
"Private property shall not be taken or damaged, for public or private use, without just compensation."
Inverse condemnation is the "taking" of private property for public or private use, without compensation, by a governmental or public entity which has refused to exercise its eminent domain power. Gold Run, Ltd. v. Board of County Commissioners, 38 Colo.App. 44, 554 P.2d 317 (1976). Inverse condemnation proceedings are appropriate where the underlying activity warrants condemnation pursuant to the entity's eminent domain power. Gold Run, Ltd., supra. Ossman v. Mountain States Telephone & Telegraph Co., 32 Colo.App. 230, 511 P.2d 517 (1973), rev'd on other grounds, supra.
Here, private property has not been "taken" within the meaning of our constitution. The County designed and graded the streets at the request of the property owners. There was neither a change in the use of the streets, nor a new appropriation of private property. See State v. Dart, 23 Ariz. 145, 202 P. 237 (1921).
Moreover, flooding which can be prevented at the expense of adjustments to the property by the property owner does not constitute a taking. Manigault...
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