Mountain States Tel. & Tel. Co. v. Horn Tower Const. Co.

• Decision Date: 03 July 1961
• Docket Number: No. 19092,19092
• Citation: 147 Colo. 166,363 P.2d 175
• Parties: MOUNTAIN STATES TELEPHONE AND TELEGRAPH COMPANY, a corporation, Plaintiff in Error, v. HORN TOWER CONSTRUCTION CO., a corporation, Defendant in Error.
• Court: Colorado Supreme Court

Page 175

363 P.2d 175

147 Colo. 166

MOUNTAIN STATES TELEPHONE AND TELEGRAPH COMPANY, a corporation, Plaintiff in Error, v. HORN TOWER CONSTRUCTION CO., a corporation, Defendant in Error.

No. 19092.

Supreme Court of Colorado, In Department.

July 3, 1961.

Rehearing Denied July 31, 1961.

Akolt, Turnquist, Shepherd & Dick, Laurence W. DeMuth, Jr., Carl F. Eiberger, Lael S. DeMuth, Denver, for plaintiff in error.

Wood, Ris & Hames, William J. Madden, Denver, for defendant in error.

DOYLE, Justice.

Plaintiff in error as plaintiff instituted this action in the trial court seeking damages for the severance by defendant's bulldozer of an underground conduit. We refer to the parties as they appeared in the trial court. Review is sought of a judgment dismissing plaintiff's claim based on trespass. The trial court submitted the question of defendant's negligence to the jury and the verdict was for defendant. A claim based on absolute liability was dismissed before trial and the propriety of this ruling is not before us.

On July 16, 1957 defendant, pursuant to a contract, was engaged in rough grading a portion of Federal Boulevard in preparation for final grading and installation of a concrete curb and gutter along the west side of Federal between the east and west streets of Exposition Avenue and Walsh Place. While so engaged its bulldozer struck and severed a large, buried conduit and cable which served 3,906 telephone subscribers in the area. Plaintiff had installed the cable and conduit along Federal in 1952 and at that time had obtained the required excavation permit from the City and County of Denver. There was some dispute at the trial as to whether the conduit had been located properly. The plaintiff's map filed with the city and other utilities approximately one year after the placing of the conduit showed it to be uniformly 17 feet from the west property line. However, testimony at the trial showed that it varied somewhat from the 17 feet shown on the map and also disclosed that it varied in depth from 12 inches to as much as 10 feet. The impact which caused the damage here complained of occurred 18 feet from the west property line.

Personnel of plaintiff were at the scene advising the defendant's workmen as to location of the conduit and often the location was determined by digging test holes which were approximately 6 inches in diameter. Two such test holes had been made at the intersections between which the injury occurred but no test hole had been driven at the exact place of the incident. The evidence also disclosed that plaintiff had, on occasion, removed and relocated its conduit when it was shown that such location would interfere with the widening project, but had not done so in the present instance and had not been requested to do so.

In urging that the cause must be reversed, plaintiff contends that:

1. The trial court erred in ruling that the acts of defendant did not constitute a trespass to property; that it was error to refuse to submit to the jury the issue whether the acts constituted a trespass.

2. It was error to submit to the jury the issue of its contributory negligence; that there was no evidence showing any fault on its part.

I.

A first inquiry is whether plaintiff's right in the real property at the place of the injury is such that invasion thereof would constitute a trespass to land. C.R.S. '53, 50-5-1 authorizes a telephone company to construct and maintain lines upon and under any public highway provided its construction does not obstruct or hinder the use of the street. 50-5-8 requires that consent of municipal authorities be obtained. The extent of this right is pointed up in Moffat v. City and County of Denver, 57 Colo. 473, 476, 143 P. 577, 578, a condemnation proceeding in which Denver sought to widen and extend a public street. It sought to compel the water company to move its pipes. The latter contended that the right which it had acquired by its franchise was a property right, deprivation of which required fair compensation. This contention was rejected, the Court holding that the right granted was qualified and subordinate; that the rights granted were '* * * subject to the power of the municipal authorities to make such reasonable changes in the grade or an improvement therein as in their judgment the public interests demanded and required.'

The defendant in the case at bar was a sub-contractor. The contractor under which it was operating held the prime contract with the city, thus defendant was proceeding under municipal authority and had a valid right at least equal to that of plaintiff in the highway. Cf. Granger Tel. & Tel Co. v. Sloane Bros., 96 Wash. 333, 165 P. 102, and Pacific Tel. & Tel. Co. v. Slezak, 151 Wash. 457, 276 P. 904. The Washington Court ruled that a contractor performing work for the county or city enjoys the same rights as the county or city as against third persons.

In the instant case it seems clear that plaintiff would not have a trespass to realty claim against Denver. Since Denver would not be subjected to liability for invasion of a real property interest of plaintiff, it follows that plaintiff would not have such right against defendant. The right violated, if any, was that of personal property.

II.

Trespass to chattels is defined as the intentional interference with the possession, or physical condition of a chattel in the possession of another, without justification. Prosser, Torts, 64 (2d ed.). The issue presented is whether defendant's conduct was intentional within the meaning of the above definition. Plaintiff contends that it is not necessary that the defendant shall have acted maliciously toward the plaintiff's property; that it was sufficient if defendant intentionally did the act which resulted in the damage. They cite Prosser, supra, Section 8, wherein the author declares that intent is present not only where the actor intends to bring about the results but also where the results are substantially certain to happen because of the nature of the actor's conduct.

It seems clear that the pulling of the trigger or the swinging of a club within range of the victim is conduct which leaves little, if any, question as to the intent of the actor. Similarly the volitional trespass to land is actionable and the trespasser will not be heard to say that he did not intend to invade the close of the owner. The driving of an automobile in heavy traffic will not subject the driver to a claim in trespass by one whose car is struck. In this latter case liability would have to depend on proof of negligence. There was a time when a man acted at his peril and the doing of the act proved the intent. Since the emergence of negligence as an independent tort during the last century, fault has been a necessary ingredient of tort liability except in the area of ultra-hazardous activity. This means that the alleged wrongdoer must have intended the result, or must have acted wantonly or at least negligently. Unintentional non-negligent interference with chattels is not actionable. See Holmes, The Common Law, 77-82, 88-96; Brown v. Kendall, 1850, 6 Cush. 292, 60 Mass. 292; Nitro-Glycerine Case, 1872, 15 Wall. 524, 82 U.S. 524, 21 L.Ed. 206.

The Supreme Court of the United States, in this latter decision, had before it the question whether trespass would lie where a mallet and chisel was applied to...