Mosher v. City of Boulder, Colorado

• Decision Date: 10 January 1964
• Docket Number: Civ. A. No. 8200.
• Citation: 225 F. Supp. 32
• Parties: Ethel C. MOSHER, William W. Degge, Louise Degge, the Boulder Land, Irrigation and Power Company, a corporation, and George W. Poor, individually and as Administrator of the Estate of Mary A. Poor, all individually and as representatives of a class similarly situated, Plaintiffs, v. CITY OF BOULDER, COLORADO, a municipal corporation, Arapahoe Chemicals, Inc., a corporation, United Haulers Association, Inc., Caroline Tumbleson and Bertha L. Crispin, Defendants.
• Court: U.S. District Court — District of Colorado

225 F. Supp. 32

Ethel C. MOSHER, William W. Degge, Louise Degge, the Boulder Land, Irrigation and Power Company, a corporation, and George W. Poor, individually and as Administrator of the Estate of Mary A. Poor, all individually and as representatives of a class similarly situated, Plaintiffs, v. CITY OF BOULDER, COLORADO, a municipal corporation, Arapahoe Chemicals, Inc., a corporation, United Haulers Association, Inc., Caroline Tumbleson and Bertha L. Crispin, Defendants.

Civ. A. No. 8200.

United States District Court D. Colorado.

January 10, 1964.

John H. Schultz, Denver, Colo., for plaintiffs Ethel C. Mosher, William W. Degge, Louise Degge, Boulder Land, Irrigation & Power Co. and George W. Poor.

Neil C. King, Peter C. Dietze, Boulder, Colo., for defendant City of Boulder.

Williams & Zook, Charles E. Williams, John G. Taussig, Jr., Boulder, Colo., for defendant Arapahoe Chemicals, Inc.

Mack, Johnson & Doty, Stanley F. Johnson, Boulder, Colo., for defendant United Haulers Ass'n, Inc.

Douglas K. Goss and Richard C. Hopkins, Boulder, Colo., for defendants Caroline Tumbleson and Bertha L. Crispin.

DOYLE, District Judge.

This is a class action brought by various named plaintiffs, individually, and as representatives of a class purported to be similarly situated, against the City of Boulder, Colorado; against two corporations which allegedly deposit waste and refuse in the Boulder City Dump; and against two persons who have allegedly leased land to the City of Boulder for use as a dump.

Plaintiffs assert that this Court has jurisdiction because of the existence of a federal question. There is no diversity of citizenship between the plaintiffs and the defendants. Federal jurisdiction is assertedly based solely on Title 28 U.S.C. § 1331, which provides that the district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000.00 exclusive of costs, and arises under the Constitution, Laws, or treaties of the United States. Specifically, this action assertedly arises under the Due Process Clause of the Fourteenth Amendment.

Whether or not the complaint states a cause of action against the City of Boulder over which this Court has jurisdiction is the sole question which it is necessary to decide on the respective motions of the various defendants to dismiss the complaint for want of federal jurisdiction — for an action brought against only the private parties concededly raises no federal question. Cf. Cogswell v. Board of Levee Com'rs, 142 F.2d 750 (5th Cir. 1944).

The most useful and generally applied test to determine whether a complaint raises a federal question is that formulated by Mr. Justice Cardozo in the case of Gully v. First National Bank, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70 (1936):

"* * * To bring a case within the statute, a right or immunity created by the Constitution or laws of the United States must be an element, and an essential one, of the plaintiff's cause of action. * * * The right or immunity must be such that it will be supported if the Constitution or laws of the United States are given one construction or effect, and defeated if they receive another. * * * A genuine and present controversy, not merely a possible or conjectural one, must exist with reference thereto * * * and the controversy must be disclosed upon the face of the complaint, unaided by the answer or by the petition for removal. * * * Indeed, the complaint itself will not avail as a basis of jurisdiction in so far as it goes beyond a statement of the plaintiff's cause of action and anticipates or replies to a probable defense. * * *" Emphasis supplied 299 U.S. at 113, 57 S.Ct. at 97-98, 81 L.Ed. 70

In setting forth these criteria Mr. Justice Cardozo repeated the language of Shulthis v. McDougal, 225 U.S. 561, 569, 32 S.Ct. 704, 706, 56 L.Ed. 1205:

"* * * `A suit to enforce a right which takes its origin in the laws of the United States is not necessarily, or for that reason alone, one arising under those laws, for a suit does not so arise unless it really and substantially involves a dispute or controversy respecting the validity, construction or effect of such a law, upon the determination of which the result depends.' * * *" Emphasis supplied

In determining whether a federal question has been raised, then, it is settled that a court refers only to the plaintiff's complaint. The federal question requisite to jurisdiction cannot be raised by the defendant's answer nor by the plaintiff's refutation of anticipated defenses. Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126 (1908). It is also settled that federal jurisdiction may not be invoked by including superfluous allegations. This doctrine was applied in the case of White v. Sparkill Realty Corp., 280 U.S. 500, 50 S.Ct. 186, 74 L.Ed. 578 (1930), in which the plaintiff, out of possession of property allegedly taken by officers of the State of New York, sought to have the defendant state officers ejected. Since a federal question would not appear in a well-pleaded ejectment complaint it was held that the plaintiff, who had superfluously alleged that his property had been taken without just compensation in violation of the Fourteenth Amendment, had not stated a cause of action which arose under the Constitution. It arose, rather, and found an adequate remedy under the law of the State of New York.

A substantially identical test of jurisdiction based on a federal question has been adopted and applied in this Circuit in Porter v. Bennison (10th Cir. 1950), 180 F.2d 523, cert. denied, 340 U.S. 817, 71 S.Ct. 47, 95 L.Ed. 600 (1950). Here it was said:

"* * * But not every question of federal law lurking in the background or emerging necessarily places the suit in the class of one arising under the Constitution or laws of the United States, within the meaning of 28 U.S.C. § 1331. A suit having for its purpose the enforcement of a right which finds its origin in the Constitution or laws of the United States is not necessarily and for that reason alone one arising under such laws. In order for a suit to be one arising under the Constitution or laws of the United States, it must really and substantially involve a dispute or controversy in respect of the construction or effect of a provision in the Constitution or the validity, construction, or effect of an Act of Congress, upon the determination of which the result depends. A right or immunity created by the Constitution or laws of the United States must be an essential element of plaintiff's cause of action, and the right or immunity must be such that it will be supported if one construction or effect is given to the Constitution or laws of the United States and will be defeated if another construction or effect is given. And a genuine present controversy of that kind must be disclosed upon the face of the complaint. Shulthis v. McDougal, 225 U.S. 561, 32 S.Ct. 704, 56 L.Ed. 1205; Gully v. First National Bank in Meridian, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70; Regents of New Mexico College of Agriculture & Mechanic Arts v. Albuquerque Broadcasting Co., 10 Cir., 158 F.2d 900; Andersen v. Bingham & Garfield Railway Co., 10 Cir., 169 F.2d 328 14 A.L.R.2d 987. * * *" 180 F.2d at 525

The plaintiffs' allegations in the instant case do not meet the above test. The plaintiffs' complaint sets forth various allegations which, if true, would establish that the defendants have created and maintain a private nuisance in the form of the Boulder City Dump. These allegations do not raise a federal question.

The City of Boulder has not condemned the property of the plaintiffs; nor are officials or agents of the City alleged to have actually entered upon or occupied plaintiffs' property. The plaintiffs allege that the acts of the defendants have deprived them of use and enjoyment of their property; that defendants have negligently caused and allowed debris, foul odors, polluted water and, occasionally, flames to emanate from the City Dump thus adversely affecting the property of the plaintiffs, rendering it less useful, and habitation thereon less pleasant. Plaintiffs allege that the acts of the defendants in connection with the operation of the City Dump constitute a taking of their property without compensation in violation of the Fourteenth Amendment. This allegation, however, is stated as a legal conclusion which, of course, it is for the court rather than the pleader to make. As a matter of law it seems, at least in the Tenth Circuit, that the acts which the defendants are alleged to have committed, even though tortious as a matter of Colorado law, do not constitute a taking in the constitutional sense. Governmental action short of occupancy is first a taking "if its effects are so complete as to deprive the owner of all or most of his interest in the subject matter." United States v. General Motors Corp., 323 U.S. 373, 378, 65 S.Ct. 357, 359-360, 89 L.Ed. 311 (1945). The more recent case of United States v. Dickinson, 331 U.S. 745, 748, 67 S.Ct. 1382, 1384-1385, 91 L.Ed. 1789 (1947), reiterates that "property is taken in the constitutional sense when inroads are made upon an owner's use of it to an extent that, as between private parties, a servitude has been acquired either by agreement or in course of time."

The plaintiffs do allege damage; but they fail to note the distinction between consequential damages and taking which both the Supreme Court and the Tenth Circuit apparently have maintained. The Court of Appeals for the Tenth Circuit explained the distinction in the recent case of Batten v. United States, 306 F.2d 580 (10th Cir. 1962), cert. denied, 371 U.S. 955, 83 S.Ct. 506, 9 L.Ed. 2d 502 (1963):

"In construing and applying the Fifth Amendment provision: `nor shall private property be taken for public use, without just compensation' the federal courts have long and consistently recognized the distinction

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