Lyons & E. P. Toll Road Co. v. People ex rel. Sprague

• Decision Date: 03 March 1902
• Citation: 29 Colo. 434,68 P. 275
• Parties: LYONS & E. P. TOLL ROAD CO. v. PEOPLE ex rel. SPRAGUE.
• Court: Colorado Supreme Court

68 P. 275

29 Colo. 434

LYONS & E. P. TOLL ROAD CO. v. PEOPLE ex rel. SPRAGUE.

Supreme Court of Colorado

March 3, 1902

Appeal from district court, Boulder county.

Quo warranto, on the relation of Abner E. Sprague, against the Lyons & Estes Park Toll Road Company. There was a judgment forfeiting defendant's franchise, and it appeals. Affirmed.

L. P. McGwire and S. S. Downer, for appellant.

Adam C Patton, George Stidger, and John A. Rush, for appellee.

CAMPBELL C.J.

This action, in the nature of quo warranto by the people of the state of Colorado on the relation of Abner E. Sprague, is prosecuted by the district attorney of the Eighth judicial district to inquire by what right the defendant (appellant here) assumes to collect toll from the public for traveling upon a road in Boulder and Larimer counties in this state. The answer of defendant exhibits as its authority therefor a franchise which purports to be a grant from the state of Colorado to construct, buy, and operate a toll road and collect tolls from persons traveling thereon. And, since defendant has built a part and bought a part of this toll road, its right, counsel say to collect toll has become vested. There was a replication putting in issue the material averments of the answer. The trial was by the court without a jury, the result of which was a judgment forfeiting the alleged franchise of the defendant, and ousting it therefrom. The case is here by appeal.

It thus appears that the controversy is one between the state in its sovereign capacity and the defendant. In quo warranto the form of the issue as between the state and the respondent is not like that in ordinary civil proceedings. In the latter the burden rests upon the plaintiff to allege and prove his title to the thing in controversy, whereas the rule is reversed in cases of quo warranto, and the respondent, or defendant, is required to disclose his title to the alleged franchise, and if in any particular he fails to show a complete title judgment must go against him. High, Extr. Rem (3d Ed.) § 712; 17 Enc. Pl. & Prac. 467, 481. There is some evidence brought up in the record which is not relevant to the vital issue in the case. A summary of what we consider germane will fully elucidate the questions to be decided. Beginning in the year 1874, and up to the time this action was brought in May, 1899, five different corporations were organized under the laws of the territory and state for the purpose of constructing and operating a toll road between the town of Longmont, in Boulder county, and Estes Park, in Larimer county, Colo., a total distance of about 16 miles. The first one was in 1874, the second in 1875, the third in 1879, the fourth in 1885, and the fifth--the defendant, the Lyons & Estes Park Toll Road Company--in 1895. We may omit from consideration the first company, for it appears to be 'a paper company only.' The 1875 company constructed a portion of the road described in its certificate, the one organized in 1879 a portion of its route, the 1885 company a part of its line, and the defendant about 4 1/2 miles out of a total length of 16 miles. The stockholders of all these corporations are substantially the same, the route mentioned in their different certificates of incorporation is practically the same, and the termini are identical. Toll was first exacted in 1875, and collections continued down to the time of the bringing of this action. The rights of none of the earlier corporations are involved in this controversy except incidentally, and it is only as to the alleged franchise of the defendant that we are called upon to pass. Of the road for traveling on which defendant demands toll about 4 1/2 miles were constructed by it, and the rest of the mileage it alleges it purchased from one or more of the earlier companies. The parties differ as to whether a corporation organized under section 563, Mills' Ann. St., for the purpose of constructing a wagon road, has, even though such authority be claimed in its certificate of incorporation, the right to acquire a wagon road by purchase, and in connection therewith the franchise to levy tolls. This question we need not determine; for, assuming,--as we safely may for the purposes of this opinion,--but not so holding, that the defendant company, under its charter, which assumes both the power to construct and to buy, possesses both of them, still the judgment below may be sustained upon the evidence as disclosed by the record. There is a proviso to the section just cited as follows: 'That nothing in this act shall be so construed as to authorize any corporation, formed under the provisions of this act, to locate their road, railroad, ditch or flume, or any part thereof, upon any toll road previously existing, nor upon any public highway heretofore and at the time of the organization of such corporation used and traveled as such, except as it may be necessary to cross such toll road or public highway.' It is the contention of the appellant (defendant below) that of the road which the 1875, 1879, and 1885 corporations were respectively authorized to build only a portion thereof was constructed by each, and that toll was collected only upon such part as was actually completed by the company constructing the same. Whether either of these companies had the right to collect toll at all, because of the failure to complete the entire length of road for which it got its franchise, might be an important question; but if we should, for our present purpose,...