Luxford v. City and County of Denver

• Decision Date: 02 December 1918
• Docket Number: 9023.
• Parties: LUXFORD v. CITY AND COUNTY OF DENVER.
• Court: Colorado Supreme Court

176 P. 833

65 Colo. 355

LUXFORD v. CITY AND COUNTY OF DENVER.

No. 9023.

Supreme Court of Colorado

December 2, 1918

Error to District Court, City and County of Denver; Charles C Butler, Judge.

Action by G. A. Luxford against the City and County of Denver. Judgment of dismissal, and plaintiff brings error. Affirmed.

Halsted L. Ritter, of Denver, for plaintiff in error.

James A. Marsh and Jacob Lieberman, both of Denver, for defendant in error.

BAILTY J.

This action was brought to recover damages caused by the Cherry Creek flood of July, 1912. The trial court sustained a general demurrer to the complaint. Plaintiff having elected to stand by his cause as therein made, a judgment of dismissal was entered, and he brings the cause on error for review.

The essential facts, which upon demurrer must be taken as true are as follows: In 1887 the Burlington & Colorado Railroad Company obtained a franchise to construct and operate a railroad across Corbett Street, a regularly established highway in the city of Denver. An embankment approximately five feet high was erected across the end of the street, and the rails laid thereon. No culverts or other means of drainage were provided in the embankment, although by the terms of the franchise they were especially stipulated. The Chicago, Burlington & Quincy Railroad Company is the successor to the original corporation.

On July 14, 1912, an extraordinary and unusual rainfall occurred in and around Denver and along Cherry Creek, causing that stream to overflow its banks and run into and down Corbett Street toward the Platte River. This flow was checked at the embankment in question, causing the water to back up into the basement of a warehouse owned by the Benedict Warehouse &amp Transfer Company, injuring a quantity of goods stored there. The claims of the several owners were duly assigned to plaintiff.

The cause of action is predicated upon the theory that the embankment was a nuisance, an inherently dangerous thing and to the construction of which the city had neither the right nor authority to consent. That it was the duty of the city to abate such nuisance, and that is continued existence was a concurrent cause with the flood in producing the damage of which complaint is made.

Both upon principle and authority the railroad grade across Corbett Street was not a nuisance per se. It was not an agency inherently dangerous. The right of the railroad company to use the street having, as is conceded, been lawfully granted, such use certainly, in and of itself alone, cannot constitute a nuisance. The embankment had been in existence for more than thirty years prior to July, 1912, and so far as the record shows no claim had ever been made that it constituted a nuisance or was in any way a menace to personal or property rights. It is well settled that the authorized use and occupancy of city streets by a railroad company does not necessarily constitute a nuisance. State v. Louisville, etc., Railroad Co., 86 Ind. 114; Danville, etc., Railroad Co. v. Com., 73 Pa. 29. The rule is stated in Denver, etc., Railroad Co. v. Hannegan, 43 Colo. 123, at page 126, 95 P. 343, at page 344 (16 L.R.A. [N. S.] 874, 127 Am.St.Rep. 100), as follows:

'The city authorities could authorize the occupancy and use thereof (the streets) for railway purposes, although it is a servitude not strictly within the ordinary uses of a public street. And the effect of the grant to the Denver Circle Railway Company by the ordinance of January 28, 1881, was to render legal such occupancy and use and avoid any claim by the city for damages through the resulting inconvenience to the general public. Moreover, so long as the grantee or its successors limited such occupancy and use to proper and legitimate railway purposes, conducting the same in accordance with the provisions of the ordinance, no action could be maintained by any one upon the ground that such occupancy and use constituted a nuisance.'

There is no allegation in the complaint that the use of the street has not been limited to proper and legitimate railway purposes, or that such use constituted a nuisance although, as already noted, it has been so used for upwards of thirty years.

The granting of a right by a municipality to a railroad company to occupy streets creates no liability in favor of third persons against the municipality for the damages occasioned by the corporation because of the bare exercise of the right so granted. As was said in Green v. Portland, 32 Me. 431, at page 433:

'The railway was not built with the funds of the city, or by its order, or by its officers. The city has received no rent, income, or benefit from it. It has no other connection with it, than to grant the owners of it a license to build and continue it on its streets. It might well take the bond of indemnity to protect it from damages, for which it would be liable by statute for direct injuries thereby occasioned by the persons or property of individuals. The fact, that the city took such a bond, does not increase its liability, or make it responsible to those, who may in some other manner have suffered damage from it. It does not even impliedly authorize them to do any damage to others.

'The license amounts to no more than an authority, so far as the city was concerned, to do the acts for their own benefit and upon their own responsibility, without being subject to interruption or complaint by the city. If one person license another to pass over his land without compensation, for his own convenience or benefit, he does not thereby constitute him his agent for that purpose. Nor would he thereby become liable to third persons for injuries suffered by them in consequence of the acts done under such license. * * * If it had the power to grant such a license, it must have derived it from its general powers to regulate its own corporate rights and interests. And those powers would not authorize it to make itself responsible for the acts of others, from which neither it, nor its citizens, derive any benefit, and which were not done for the accommodation of the public travel and business. Upon the case as presented, the city does not appear to be responsible for any damages, which the plaintiffs may have suffered.'

In Elliott on Streets and Roads (3d Ed.) vol. 2, § 890,...