Ossman v. Mountain States Tel. & Tel. Co.

• Decision Date: 25 March 1974
• Docket Number: No. C-387,C-387
• Citation: 520 P.2d 738,184 Colo. 360
• Parties: Emmett OSSMAN, Petitioner, v. The MOUNTAIN STATES TELEPHONE AND TELEGRAPH COMPANY, a Colorado corporation, Respondent.
• Court: Colorado Supreme Court

Page 738

520 P.2d 738

184 Colo. 360

Emmett OSSMAN, Petitioner, v. The MOUNTAIN STATES TELEPHONE AND TELEGRAPH COMPANY, a Colorado corporation, Respondent.

No. C-387.

Supreme Court of Colorado, En Banc.

March 25, 1974.

Rehearing Denied April 22, 1974.

Anthony F. Zarlengo, Denver, A. J. Laing, Leadville, for petitioner.

Joseph C. O'Neil, Cotton Howell, Denver, for respondent.

KELLEY, Justice.

We granted certiorari to review the decision of the Court of Appeals in Ossman v. Mountain States Telephone & Telegraph Co., Colo.App., 511 P.2d 517 (1973). The Court of Appeals, in reversing the judgment of the trial court, held that an entity which has the statutory power of eminent domain cannot be held liable for a nonintentional trespass where the trespass occurred while such entity was pursuing a public purpose. We disagree and hold that a landowner has a right to sue in trespass even though the trespasser may have the statutory power of eminent domain with respect to the land on which the trespass occurs. For the reasons set out below, the judgment of the trial court is likewise reversed.

In 1967 defendant Mountain States Telephone and Telegraph Co. (Mountain Bell) laid a sub-surface telephone cable across property owned by Emmett Ossman. Except for the 338.58 feet which crossed Ossman's property, the cable was laid within the right-of-way of State Highway 91. The cable severed approximately one-half acre from the rest of Ossman's tract.

Ossman first became aware of the trespass in June of 1970 when he visited the property to determine the feasibility of developing it as a trailer court. He immediately contacted the local manager for Mountain Bell and requested that something be done about the trespass. Mountain Bell took no action. As a consequence, Ossman hired a surveyor to determine the extent of the intrusion on his land. About six weeks later Ossman again contacted the local manager who advised him that the matter would be referred to a Mr. Hanson, a right-of-way engineer for Mountain Bell.

Ossman suffered a stroke on July 17, 1970, and spent about six months convalescing. In January, 1971, not having heard from Mountain Bell, Ossman again sought out the local manager. On this occasion he advised the manager that he was going to take legal action unless he was compensated for an easement or unless the cable was removed. Three days later Hanson surveyed Ossman's land and acknowledged to him that the cable did indeed cross his land.

In March, 1971, Hanson offered Ossman $42 for a right-of-way 10 feet wide where the cable crossed Ossman's land. Ossman rejected the offer and retained an attorney to represent him in the matter.

About March 20, 1971, Ossman's attorney contacted Cotton Howell, an attorney for Mountain Bell, and asked that the Company remove the cable from the premises or immediately commence condemnation proceedings. He also suggested that Ossman would accept $1,000 as compensation for an easement for the cable. Howell replied by letter dated March 30, 1971, stating that the $42 offer was 'the maximum amount we are permitted to pay under the circumstances, . . .' and requested a counter proposal. At trial the evidence developed that the $42 offer represented the value of the easement to Mountain Bell. It in no way contemplated the value of the easement to Ossman or its effect on the most advantageous use to which Ossman's land might be put in the future.

Ossman's attorney wrote four additional letters repeating his demand that the Company either remove its cable from Ossman's land or immediately commence eminent domain proceedings. Howell's replies were not responsive to plaintiff's requests. His final letter of May 20, 1971, suggested only a further meeting between counsel at which the parties might reach an 'amicable settlement.'

At this point having only the $42 offer to consider, Ossman filed the instant lawsuit. In his complaint he sought damages for the trespass and additionally, sought exemplary damages for conduct alleged to be in 'wanton and reckless disregard of Plaintiff's rights and feelings.' Defendant answered and pleaded as an affirmative defense ¹ that Ossman was limited to the measure of damages that he could recover in an inverse condemnation proceeding. At trial ossman continued to press his trespass claim. Mountain Bell defended as if Ossman was proceeding in inverse condemnation. The trial court in resolving the controversy combined the two theories by directing a verdict for Ossman on his trespass claim and submitting a verdict describing the property taken which granted Mountain Bell an easement for the installation and maintenance of its cable. The jury awarded Ossman $1,942 in actual damages for the easement and damages to the residue of this land and $2,308 in exemplary damages.

The threshold question is whether Mountain Bell may be liable for trespass under the particular circumstances in this case. The Court of Appeals held that the trial court should have treated Mountain Bell's counterclaim for inverse condemnation as a petition in eminent domain and proceeded to a determination of whether the taking was necessary and proper. If the trial court found that the taking was a necessary and proper exercise of the eminent domain power, the trespass action would not lie. Ossman concedes that Mountain Bell could condemn his property, and, in fact, he repeatedly requested that they do just that. He maintains that he may elect at the outset whether to proceed in trespass or inverse condemnation. We agree that Ossman had the right to elect to sue in trespass under the circumstances here. We find no sound reason why a landowner should be limited to an inverse condemnation remedy where a trespasser refuses to promptly initiate eminent domain proceedings. Seven Lakes Reservoir Co. v. Majors, 69 Colo. 590, 196 P. 334 (1921); Chicago, Rock Island & Pacific Ry. Co. v. Hayes, 49 Colo. 333, 112 P. 315 (1911); Denver & S.F. Ry. Co. v. School District No. 22, 14 Colo. 327, 23 P. 978 (1890); County of San Luis Obispo v. Ranchita Cattle Co., 16 Cal.App.3d 383, 94 Cal.Rptr. 73 (1971); County of Harris v. Southern Pacific Transportation Co., 457 S.W.2d 336 (Texas Civ.App.1970). See also State ex rel. Firestone Tire & Rubber Co. v. Ritchie, 153 W.Va. 132, 168 S.E.2d 287 (1969); Beetschen v. Shell Pipeline Corp., 363 Mo. 751, 253 S.W.2d 785 (1952); 6 A. Nichols, Eminent Domain § 28.3 (3d Ed. 1973).

In the event of a retrial Ossman may again seek to recover his actual damages for the trespass. See Colorado Jury Instructions 18:2. Ossman alleges conduct which would justify an award of exemplary damages. Thus, if Ossman pursues the trespass claim, the issue of exemplary damages may also be submitted to the jury....