People of City of Lakewood by and on Behalf of People v. Haase, C-1673
| Decision Date | 11 June 1979 |
| Docket Number | No. C-1673,C-1673 |
| Citation | 198 Colo. 47,596 P.2d 392 |
| Parties | The PEOPLE of the CITY OF LAKEWOOD by and on Behalf of the PEOPLE of the State of Colorado, Petitioner, v. Guido O. HAASE and Diamond Re-Serv-Al, Inc., Respondents. |
| Court | Colorado Supreme Court |
Gorsuch, Kirgis, Campbell, Walker & Grover, William H. McEwan, Robert E. Warren, Jr., Gary S. Cohen, Denver, for petitioner.
Robinson & Scheurer, P. C., Richard J. Scheurer, Lakewood, for respondents.
The respondents were acting as agents of the Bear Creek Water and Sanitation District ("District"). They were charged in a Lakewood municipal court with working in a public street of the City of Lakewood without first obtaining a permit. That court found that, in light of the statutory powers granted the District, the City had no authority to require the District to obtain a permit to effect a street cut to repair the District's water lines; and it granted a motion to dismiss at the conclusion of the evidence. The district court affirmed the municipal court. We granted certiorari and now reverse.
The District was organized under section 32-4-101, Et seq., C.R.S. 1973, and engaged in the delivery of domestic water. It had laid its mains and lines in and was serving the area here involved. Thereafter the City annexed this area. In April 1976 it was apparent from the surface at 2591 South Garland that there was water leakage either in the District's main or the property owner's service line. The District's main was about 4 1/2 feet below the surface of the street. The District instructed the respondents to make an excavation at the point of the connection of the service line with the main to determine the location of the leak. The respondents applied to the City for a street cut permit. This was not issued, apparently for the reason that it should have been made in the name of the respondents rather than the District. The respondents proceeded to make the excavation. 1
Sections 12.04.020(b) and 12.04.030 of the Lakewood Municipal Code provide:
The ordinances further provide that all such work shall be performed in conformity with the requirements of the City's engineering regulations and specifications and design standards. Section 12.04.170.
The statutory delegation of police power in the respect here involved is in section 31-15-702(1)(a)(II), C.R.S. 1973 : "The governing body of each municipality has the power . . . to regulate the openings therein for the laying-out of gas or water mains and pipes . . . ." At this juncture we hold that this delegation of police power by implication includes the regulation of openings for the purpose of repair of mains and pipes.
The District relies upon the following statutory delegation of power to it:
"To construct and maintain works and establish and maintain facilities across or along any public street or highway . . . but the board of county commissioners of any county in which any public streets or highways are situated which are to be cut into or excavated in the construction or maintenance of any such facilities has authority to make such rules as it deems necessary in regard to any such excavations and may require the payment of such reasonable fees against the district as may be fixed by it to insure proper restoration of such streets or highways . . . ." Section 32-4-113(1)(k)(I), C.R.S. 1973.
This court has ruled on this issue in Sheridan v. Valley Sanitation District, 137 Colo. 315, 324 P.2d 1038 (1958). There the district sought to condemn rights-of-way through and across public streets in the Town of Sheridan for the purpose of constructing and maintaining a sewer line. Sheridan attempted to extract excessive concessions from the district under a statute which then provided that there could not be operation of sewage facilities unless...
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