Mitchell v. Board of Com'rs of Morgan County
| Decision Date | 02 October 1944 |
| Docket Number | 15249. |
| Citation | 112 Colo. 582,152 P.2d 601 |
| Parties | MITCHELL v. BOARD OF COM'RS OF MORGAN COUNTY et al. |
| Court | Colorado Supreme Court |
Rehearing Denied Oct. 30, 1944.
Error to District Court, Morgan County; H. E. Munson, Judge.
Action by Lloyd W. Mitchell against Board of Commissioners of Morgan County, State of Colorado, and State Highway Department of Colorado, to recover damages to plaintiff's property on ground that defendants maintained and operated a certain highway and bridge in such a manner as to cause a creek to overflow on plaintiff's property. To review a judgment dismissing the action, the plaintiff brings error.
Affirmed.
John T. Dugan and C. E. Sydner, both of Denver for plaintiff in error.
G. C Twombly, of Fort Morgan, for Board of Com'rs of Morgan County.
Gail L Ireland, Atty. Gen., H. Lawrence Hinkley, Deputy Atty. Gen and C. Henry Anderson, Asst. Atty. Gen., for State Highway Department.
These parties are hereinafter referred to as Mitchell, the county board and the highway department respectively. Mitchell, alleging ownership of certain lands in Morgan county and the construction, ownership, maintenance and operation by the county board and the highway department of a certain highway and bridge in such manner as to cause Beaver creek to overflow his property, brought this action for damages in the sum of $25,000.
The highway department moved to dismiss for want of facts and because the suit against it was one against the state and without its consent, hence unmaintainable. The county board moved to dismiss for want of facts and particularly because of failure to allege a prior presentation of his claim by Mitchell to the board as provided by statute. Both motions assert generally want of jurisdiction. Both were sustained and to review the judgment entered accordingly Mitchell prosecutes this writ and specifies as error each of said rulings. His counsel contends that this cause falls within the provisions of Section 15, Article II of our Constitution; that the provisions thereof have not been herein followed by the county board and the highway department, by reason whereof they become liable in this action, and that said section is in itself a consent by the state to suit against it under such circumstances.
Numerous authorities are cited in support of the respective positions taken herein by counsel. Those principally relied upon by Mitchell are from other jurisdictions. Few of these are directly in point and some are in conflict with our own decisions, and the arguments therefrom are by unconvincing analogy. We find neither necessity nor justification for examination here of this array or any attempt to reconcile and distinguish, convinced as we are that the law essential to the disposition of the cause is to be found in our own statutes and adjudicated cases of long standing.
First as to plaintiff's cause of action against the highway department: Section 1 of Article VIII of our Constitution provides for the establishment of certain state institutions 'and such other institutions as the public good may require.' That applies to the highway department. Johnson v. McDonald, 97 Colo. 324,...
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