Larson v. Chase Pipe Line Co.

• Citation: 183 Colo. 76,514 P.2d 1316
• Decision Date: 09 October 1973
• Docket Number: No. 26044,26044
• Parties: Leonard O. M. LARSON et al., Petitioners, v. CHASE PIPE LINE COMPANY et al., Respondents.
• Court: Supreme Court of Colorado

Page 1316

514 P.2d 1316

183 Colo. 76

Leonard O. M. LARSON et al., Petitioners, v. CHASE PIPE LINE COMPANY et al., Respondents.

No. 26044.

Supreme Court of Colorado, En Banc.

Oct. 9, 1973.

Rehearing Denied Oct. 29, 1973.

Fuller & Evans, Clyde A. Faatz, Jr., Denver, for petitioners.

Holme, Roberts & Owen, Donald C. McKinlay, Robert F. Starzel, Denver, for respondents.

GROVES, Justice.

The respondent pipeline company commenced two actions to condemn a pipeline right-of-way 50 feet in width across the adjoining properties of the petitioners. The matter was consolidated in the trial court, which issued an order of temporary possession. The petitioners brought an original proceeding here seeking invalidation of the order and we issued a rule to show cause why their requested relief should not be granted. We now discharge the rule.

I

The respondent company moved to dismiss the proceedings here and to vacate the order to show cause for the reason that this proceeding was not authorized by C.A.R. 21. We now deny this motion. We have reviewed orders of temporary possession in original proceedings on several occasions. A recent example is Arizona-Colorado Land and Cattle Company v. District Court, Colo., 511 P.2d 23 (1973). As stated in Swift v. Smith, 119 Colo. 126, 201 P.2d 609 (1948), because an order for temporary possession is clearly interlocutory, any review must be by an original proceeding. See Glendale v. Denver, 137 Colo. 188, 322 P.2d 1053 (1958); and Potashnik v. Public Service Company of Colorado, 126 Colo. 98, 247 P.2d 137 (1952).

II

Petitioners contend that the proof did not support the required allegation that the 'compensation to be paid for said right-of-way easement cannot be agreed upon by the parties interested.' The petitioners cite Stalford v. Board of Commissioners, 128 Colo. 441, 263 P.2d 436 (1953). The court found that there had been negotiations, and it is implicit in its findings that further negotiation would have been futile. There was sufficient evidence to support the findings. Vivian v. Board of Trustees, 152 Colo. 556, 383 P.2d 801 (1963).

III

The petitioners have contended that Chase Transportation Company--and not Chase Pipe Line Company--should have brought the eminent domain proceedings. Chase Transportation Company is a joint venture or partnership composed of the respondent company and Skelly Pipe Line Company. Under the venture agreement, title to the pipeline ultimately will vest in the Chase Transportation Company. However, title from these proceedings will pass to the petitioner, which is a corporation. The respondent company has a 90% Interest and Skelly Pipe Line Company has a 10% Interest in the venture. Skelly Pipe Line Company's sole contribution was a segment of the line already constructed in Kansas. The respondent company furnishes all the construction costs for the line in Colorado, and will operate it. The company, a Kansas corporation, is authorized to do business in Colorado.

We affirm the trial court's conclusion that the company is a proper entity to bring the action under C.R.S.1963, 50--5--5.

IV

We disagree with the petitioners' argument that the property is not being taken for a public use.

'Private property shall not be taken or damaged, for public or private use, without just compensation. . . . and whenever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be really public shall be a judicial question, and determined as such without regard to any legislative assertion that the use is public.' Colo.Const. art. II. § 15.

In Potashnik v. Public Service Co., Supra, it was held that this constitutional provision requires judicial approval of the purpose as a public use.

The record discloses that this pipeline is to be operated under the jurisdiction of the Interstate Commerce Commission. Therefore its operation as a common carrier will be madatory under federal law. 49 U.S.C. § 1(3)(a) and (4). It was stated in Tanner v. Treasury Tunnel Co., 35 Colo. 593, 83 P. 464 (1906), as follows:

'No definition, however, has as yet been formulated which would serve as an infallible test in determining whether a use of property sought to be appropriated under the power of eminent domain is public or private. No precise line is drawn between the uses which would be applicable in all cases. Doubtless this arises from the fact that the courts have recognized that the definition of 'public use' must be such as to give it a degree of elasticity capable of meeting new conditions and improvements, and the everincreasing needs of society. (Citation omitted). Consequently we find, in examining the authorities, that, in determining whether or not a use is public, the physical conditions of the country, the needs of a community, the character of a benefit which a projected improvement may confer upon a locality, and the necessities for such improvement in...