Mack v. Town of Craig

• Decision Date: 03 May 1920
• Docket Number: 9491.
• Parties: MACK v. TOWN OF CRAIG.
• Court: Colorado Supreme Court

191 P. 101

68 Colo. 337

MACK v. TOWN OF CRAIG.

No. 9491.

Supreme Court of Colorado, En Banc.

May 3, 1920

Rehearing Denied July 6, 1920.

Error to District Court, Moffat County; John T. Shumate, Judge.

Condemnation proceeding by The Town of Craig against John Mack. From a judgment of condemnation, defendant brings error.

Reversed and remanded, with directions to dismiss.

Garrigues C.J., dissenting.

A. M. Gooding, of Steamboat Springs, and George A Pughe, of Craig, for plaintiff in error.

W. B Wiley, of Craig, for defendant in error.

BAILEY J.

Plaintiff in error brings the cause here to review a judgment of the District Court of Moffat County whereby certain of his land was awarded the town of Craig in condemnation proceedings, as an outlet for its sewage into the Yampa or Bear river. It was and is the purpose of the town to empty its raw and unpurified sewage into that stream, at a point bounded on both sides by lands of the plaintiff, and to carry it for a distance of about a mile through his property, which he uses mainly for dairy business. Numerous errors have been assigned, but for the purposes of this decision it will be necessary to consider only such as go, first, to the question of the authority of the town to condemn and take land beyond its corporate limits, and, second, as to its right to pollute a public stream by emptying raw sewage therein.

The town relies upon section 6525, R. S. 1908, in which the right is given to towns and incorporated cities to keep in repair sewers, culverts, drains and the like, and also power of eminent domain. There appears to be nothing, however, either in that section or in section 5359, R. S. 1908, which empowers cities and towns to assess the costs of such improvements to its inhabitants, or in section 5361, which specifies what class of improvements can be made, that either directly or by fair intendment authorizes such municipalities to exercise the power of eminent domain beyond their corporate limits. It is well settled that the power to construct such improvements does not carry with it the right to condemn private property to that end.

In Lewis on Eminent Domain, section 371 (3d Ed.), it is said:

'The authority to condemn must be expressly given or necessarily implied. The exercise of the power being against common right, it cannot be implied or inferred from vague or doubtful language, but must be given in express terms or by necessary implication. When the right to exercise the power can only be made out by argument and inference, it does not exist. 'There must be no effort to prove the existence of such high corporate right, else it is in doubt and if so, the State has not granted it.' If the act is silent on the subject, and the powers given by it can be exercised without resort to condemnation, it is presumed that the legislature intended that the necessary property should be acquired by contract. * * * As a rule, a municipal corporation cannot condemn property beyond its limits, unless authority to do so is expressly given.'

Upon the proposition that a municipality has no power to condemn property outside its corporate limits, unless authority so to do is specifically given, as stated above, 28 Cyc. at page 605, has this to say:

'As a rule a municipal corporation has no power to purchase and hold land for a park, highway, or other municipal purpose beyond its territorial limits, unless the power has been specifically conferred upon it by the legislature; and such power is not conferred by a general grant of power to purchase, hold and convey such property, real or personal, as may be necessary for its public uses and purposes. The legislature, however, may confer such power, either in express terms or by necessary implication, and there are cases in which, without any special grant of such power, it has been implied as necessary in order to carry out powers granted.'

So far as we are able to ascertain this general rule has been followed and approved with practical unanimity. In Warner v. Gunnison, 2 Colo.App. that court expressed its view of the rule at page 432, 31 P. 238, in the following language:

'The jurisdiction of municipal authorities is usually limited to the territory occupied by the corporation. For this reason proceedings in condemnation cannot ordinarily be instituted as to property outside the corporate limits.'

Also in Healy v. City of Delta, 59 Colo. 124, at page 125, 147 P. at page 662, in discussing the right of a municipality to condemn the bed of a public stream for sewer purposes, it is said:

'It is assigned as error that the court was without jurisdiction to enter the judgment which in effect condemns the waters of the river, and makes it a part of the sewer system. This is the only question necessary to be considered. Municipal corporations can exercise the right of eminent domain only to the extent to which power has been conferred upon them by statute.

"Not only must the authority to municipal corporations, or other legislative agents, to take private property, be expressly conferred, and the use for which it is to be taken specified, but the power, with all its constitutional limitations and directions for its exercise, must be strictly pursued.' Dillon, Mun. Corps. (5th Ed. § 1040. See, also, Lewis on Eminent Domain, § 240; Allen v. Jones, 47 Ind. 438.'

Thus from our own decisions it appears clear that, unless expressly empowered by statute, the town of Craig has no authority to condemn land outside its corporate limits for sewer purposes. The bare right of the town to construct and maintain sewers can not be held to include the right to cndemn property beyond its corporate limits in connection therewith. 15 Cyc. 569; Riley v. Rochester, 9 N.Y. 64; Farwell v. Seattle, 43 Wash. 141, 86 P. 217, 10 Ann.Cas. 130; Wise v. Yazoo City, 96 Miss. 507, 51 So. 453, 26 L.R.A. (N. S.) 1130, Ann.Cas. 1912B, 377; Currier v. Railroad Co., 11 Ohio St. 228; Lewis on Eminent Domain, § 240; Minnesota C. & P. Co. v. Koochiching Co., 97 Minn. 429, 107 N.W. 405, 5 L.R.A. (N. S.) 638, 7 Ann.Cas. 1182.

It is not disputed that the statute confers no direct or specific power upon municipalities to go beyond their...