Minnequa Lumber Co. v. City and County of Denver

• Decision Date: 03 November 1919
• Docket Number: 9298.
• Citation: 67 Colo. 472,186 P. 539
• Parties: MINNEQUA LUMBER CO. et al. v. CITY AND COUNTY OF DENVER.
• Court: Colorado Supreme Court

186 P. 539

67 Colo. 472

MINNEQUA LUMBER CO. et al. v. CITY AND COUNTY OF DENVER.

No. 9298.

Supreme Court of Colorado

November 3, 1919

Rehearing Denied Jan. 5, 1920.

Error to District Court, City and County of Denver; John H Denison, Judge.

Action by the Minnequa Lumber Company and Homer W. Bingham against the City and County of Denver. To review judgment of nonsuit plaintiffs bring error.

Reversed.

N Walter Dixon, Thomas J. Dixon, and Walter M. Appel, all of Denver, for plaintiff in error Minnequa Lumber Co.

Stokes & Sherman, of Denver, for plaintiff in error Bingham.

James A. Marsh and Thomas H. Gibson, both of Denver, for defendant in error.

ALLEN J.

This is an action brought by the Minnequa Lumber Company against the city and county of Denver to recover damages for depreciation in the value of its property as a result of the construction of the Larimer street viaduct. At the close of the evidence, the trial court, on motion of the defendant, granted a nonsuit against the plaintiff. A motion for a new trial having been interposed and overruled, the plaintiff brings the cause here for review.

At the time of the injury complained of, and of the bringing of this action, the plaintiff was the owner in fee of block 275 and the west half (excepting a small lot in the southeast corner) of block 269, in West Denver, which is business property, and for many years had been used and enjoyed as one body of land in carrying on the lumber business.

The plaintiff's property lies along and is bounded on the south by Larimer street, and is situated between Second street, which bounds it on the west, and an alley between Third and Fourth streets, which bounds it on the east. Larimer street is a business street, and an important business thoroughfare of the city, running from Thirty-Seventh street to First street, where it connects with Golden avenue and West Colfax avenue. Before the construction of the viaduct, Larimer street formed a direct means of access to plaintiff's property, from the east, west, and south.

The Larimer street viaduct runs upon and along Larimer street, beginning at Eighth street and continuing thence to West Colfax avenue and on a short distance beyond First street. The viaduct, where it runs along plaintiff's premises, is more than 20 feet above the ground. It rests on numerous concrete pillars, and occupies the whole roadway of the former surface of the street. Public travel over Larimer street, between Eighth street and Colfax avenue, is now over the viaduct, instead of upon the former surface of the street. All means of access to plaintiff's property by way of the traveled part of Larimer street has been cut off, except that foot travelers may reach it by means of stairs from the viaduct.

The gist of the plaintiff's cause of action is that by the construction of the viaduct the plaintiff's right of access to its property by way of Larimer street has been entirely cut off and destroyed, and damages are claimed on account thereof, under section 15, art. 2, of the Constitution, where it is provided:

'That private property shall not be taken or damaged for public or private use, without just compensation.'

An abutting owner has an indefeasible right of access to and from his property to the street. 28 Cyc. 883. Such right is appurtenant to his lot and is private property. 15 Cyc. 665. As a general rule, this right cannot be taken away, or materially impaired or interfered with, even under legislative authority, without compensation. 13 R.C.L. 142, § 125. The abutting owner is entitled to compensation where the easement of access is taken away or materially interfered with by the municipality as the result of making an unusual change in the street, or putting it, or allowing it to be put, to an extraordinary or unanticipated use. Colorado Springs v. Stark, 57 Colo. 384, 140 P. 794. The building of a viaduct in a street by the city, whereby ingress and egress to abutting property is adversely affected, is such an extraordinary use of the street as could not have been anticipated at the time of the dedication, and the abutting owner can recover for injury to his property on that account. The injury is of a kind not common to the general public. Pueblo v. Strait, 20 Colo. 13, 36 P. 789, 24 L.R.A. 392, 46 Am.St.Rep. 273.

There is no contention with reference to the correctness of the rules and principles above stated, but the argument of the defendant in support of the judgment below deals with the vacation of portions of Larimer street and plaintiff's access to an unvacated part of the former surface of the street. As a part of the transaction resulting in the construction of the viaduct, certain parts of Larimer street were vacated, but that portion of Larimer street that lies along the plaintiff's property, and westerly therefrom, was never expressly vacated by ordinance.

The fact that the plaintiff, after the construction of the viaduct, continued to have access to the former surface of Larimer street in front of its property seems to have caused the trial court to find that 'in the present case ingress and egress remain untouched,' and to grant the nonsuit on that...