People of Colorado v. District Court, 4695.

• Decision Date: 09 September 1953
• Docket Number: No. 4695.,4695.
• Citation: 207 F.2d 50
• Parties: PEOPLE OF COLORADO ex rel. WATROUS v. DISTRICT COURT OF UNITED STATES FOR DISTRICT OF COLORADO et al.
• Court: U.S. Court of Appeals — Tenth Circuit

207 F.2d 50 (1953)

PEOPLE OF COLORADO ex rel. WATROUS v. DISTRICT COURT OF UNITED STATES FOR DISTRICT OF COLORADO et al.

No. 4695.

United States Court of Appeals Tenth Circuit.

September 9, 1953.

John P. Holloway, Asst. Atty. Gen., State of Colo. (Duke W. Dunbar, Atty. Gen., State of Colo., H. Lawrence Hinkley, Deputy Atty. Gen., State of Colo., on the briefs), for petitioners.

Frank Delaney, Glenwood Springs, Colo., for respondent.

Before PHILLIPS, Chief Judge, and MURRAH and PICKETT, Circuit Judges.

PHILLIPS, Chief Judge.

By a petition filed in this court, the State of Colorado seeks a writ in the nature of prohibition against the United States District Court for the District of Colorado¹ and the Honorable William Lee Knous, Judge thereof.

On May 25, 1953, Leslie Baillie, Della Baillie, Neva C. Bryant Reynolds, Catherine Oetken, Bert Savage and Wayne Burdge commenced an action against Mark U. Watrous, as Chief Engineer of the State Highway Commission and of the Department of Highways of the State of Colorado, in the District Court, numbered 4349, Civil, on the docket of that court.

In their complaint in No. 4349 the plaintiffs alleged that it is a civil action arising under the 14th Amendment to the Constitution of the United States and that the matter in controversy, exclusive of interest and costs, exceeds the sum of $3,000 and further alleged these facts:

The Baillies are the owners in fee and in possession of certain land and the improvements thereon, situated in Block 43 of Glenwood Springs, Colorado. The other plaintiffs are the owners in fee and in possession of certain lands and the improvements thereon, situated in Block 44 of Glenwood Springs, Colorado. Grand Avenue is a north and south street in Glenwood Springs. It runs between Blocks 43 and 44 and the lands of plaintiffs abut on such avenue.

The City of Glenwood Springs is divided into two parts by the Colorado River. The parts are connected by a bridge² across the river, which affords the only means of passage by vehicles or pedestrians from one part of the city to the other. Grand Avenue is a graded and improved street and is the principal business street of Glenwood Springs. Blocks 43 and 44 are two of the principal business parts of such city. The sidewalks on each side of such avenue are approximately 14 feet in width and the distance from curb to curb is 75 feet. The entire width of such street is available as a means of ingress and egress for plaintiffs' properties. An alley extends east and west through Blocks 43 and 44, north of the land of the plaintiffs. The south approach to the old bridge commences on Grand Avenue at the northerly line of the alley.

In 1930 the City of Glenwood Springs created an improvement district for the improvement of Grand Avenue, which included the lands of the plaintiffs. The grade of such street was established and it was paved and otherwise improved and the property of the plaintiffs was assessed to pay its share of such improvements. Such assessments were paid.

The plaintiffs own the fee title to the land in Grand Avenue on which their lands abut, subject to the right of the public and its agencies to make the ordinary and usual use thereof for street and highway purposes.

Mark U. Watrous is the Chief Engineer of the Department of Highways and the State Highway Commission. Such Department and Commission are agencies of the State of Colorado, created by Chapter 57 of the 1952 Session Laws of Colorado, Watrous is the chief administrative officer of such Department and his duties include the awarding, under the supervision of the Commission, of all contracts for the construction of state highways. The Commission has planned and authorized a so-called state highway project which includes plans to deactivate and dismantle the old bridge and to construct a new bridge and new approaches therefor across the river, the south approach to be located on Grand Avenue in front of the properties of the plaintiffs. Watrous, as Chief Engineer, has let a contract to Harry Gardner and Maurice Gardner to perform all the work on such project and to construct such new bridge and the approaches thereto and to alter the width of the sidewalks along Grand Avenue. The new bridge and the approaches thereto are to be constructed of concrete. The end of the south approach will be 115 feet southerly of the end of the old bridge. The only means for pedestrians to go from one part of the city to the other will be on two sidewalks, which are to be constructed at the approximate level of the deck of the new bridge and the only place from which pedestrians can reach such bridge sidewalks on the south side of the river will be at the southern terminus of such south approach to the new bridge. The south approach to the new bridge will be a concrete structure 40 feet in width, located in the center of Grand Avenue. The sidewalks on each side of such avenue will be reduced in width from 14 feet to 8 feet on each side of such approach and the vehicular passageways on Grand Avenue on each side of such approach will be only 20 feet in width.

The deck of the new bridge in front of the property of the Baillies will be 7 feet above the present level of Grand Avenue; the deck of the new bridge in front of the property of Reynolds and Oetken will be approximately 6 feet above such level; the deck of the new bridge in front of the property of Savage will be approximately 5 feet above such level; and the deck of the new bridge in front of the property of Burdge will be approximately 5 feet above such level.

The construction of such bridge will block the alley at Grand Avenue.

The defendants, claiming to act as agents and representatives of the State of Colorado and under the authority of such State, have started to remove the sidewalks and surface of such street and to construct the south approach to the new bridge. During the changing of such sidewalks and the construction of such approach, it will be impossible for the plaintiffs to carry on their businesses and when such approach to such bridge has been constructed, the means of ingress and egress for their places of business will be destroyed or greatly impaired.

The Baillies maintain a machine shop, welding and repair shop and garage on their property abutting on Grand Avenue. They have installed machine tools and special equipment of substantial value for the purpose of conducting such business. In the conduct of such business it is necessary for heavy trucks and trailers to be brought into and taken from the building on their property and a lateral clearance of 35 feet is necessary for such purposes. The construction of the new bridge will prevent ingress to and egress from such buildings by trucks and other like vehicles and will prevent its use for the purposes for which it is now being used.

The plaintiffs Reynolds and Oetken carry on the business of a garage, storeroom and automotive repair shop, including a salesroom for the keeping and sale of automobile accessories, on their property abutting on Grand Avenue. They have installed special equipment for the purpose of conducting such repair shop. In the conduct of their business it is necessary for heavy trucks and trailers to be brought into the building on their land and a clearance of 35 feet is required for such purposes. The construction of the approach to such bridge will prevent ingress to and egress from such building and will prevent its use for the purposes for which it is now being used.

The plaintiff Savage conducts a store and mercantile business on the first floor of the building on his property abutting on Grand Avenue and maintains office quarters and quarters for public assembly on the second floor. The construction of the south approach to the new bridge will impair and restrict access to his property and the changing of the sidewalks will divert pedestrian travel from his premises.

The plaintiff Burdge conducts a funeral home on the first floor of the building on his land abutting on Grand Avenue. The approach to the new bridge will interfere with ingress to and egress from his premises for the purposes for which it is now being used and will divert pedestrian travel from such premises.

The rights of plaintiffs to the use of such avenue and their rights of ingress and egress for their places of business are property rights recognized under the laws and Constitution of the State of Colorado. The defendants in No. 4349 intend to deprive such plaintiffs of such property rights without any hearing to determine the amount of compensation to which plaintiffs are entitled, without the payment of any compensation therefor, and without due process of law.

The plaintiffs in No. 4349 prayed that a temporary injunction be issued enjoining and restraining such defendants and each of them from proceeding with the construction of the new bridge and the approaches thereto, or in anywise interfering with the right of ingress and egress of plaintiffs to and from their properties, unless and until an appropriate action is instituted by the State of Colorado, or its agencies, to determine the amount of compensation to which such plaintiffs are entitled; that upon final hearing, such injunctive order be made permanent, and, in the alternative, that plaintiffs recover money damages.

Thereafter, on June 1, 1953, the plaintiffs in No. 4349 filed a motion for a preliminary injunction.

The defendants appeared specially and moved to quash the summons and dismiss the action in No. 4349 on the ground that the action was a suit against the State of Colorado and the District Court was without jurisdiction. The motion for a preliminary injunction and the motion to quash the summons and dismiss the action were consolidated for hearing. On June 15, 1953, the District Court denied the motion to quash the summons and to dismiss the action and denied the motion for a preliminary injunction, but ordered that Mark U. Watrous, as...