Platte & D. Canal & Milling Co. v. Lee

• Citation: 2 Colo.App. 184,29 P. 1036
• Parties: PLATTE & D. CANAL & MILLING CO. v. LEE, Mayor, et al.
• Decision Date: 09 May 1892
• Court: Court of Appeals of Colorado

29 P. 1036

2 Colo.App. 184

PLATTE & D. CANAL & MILLING CO. v. LEE, Mayor, et al.

Court of Appeals of Colorado

May 9, 1892

Appeal from district court, Arapaho county; VICTOR A. ELLIOTT Judge.

Action by the Platte & Denver Canal & Milling Company against William S. Lee, mayor of Denver, and others. From a judgment sustaining a demurrer to the complaint, plaintiff appeals. Reversed.

Markham & Carr, for appellant.

John F Shafroth and O.C. Marsh, for appellees.

RICHMOND P.J.

The plaintiff, a corporation under the laws of this state, by its complaint alleges, in substance, as follows: That it has now under its control and in operation a ditch constructed by the Platte & Denver Ditch Company in the year 1864; that the ditch was constructed for the purpose of furnishing water for milling, manufacturing, and irrigation; that the company, by prior occupation and appropriation, acquired the right of way and easement along the route of said ditch through the city of Denver where the said ditch now runs; that the lands within the limits of the city of Denver through which the ditch was constructed was, at the time of the construction, a part of the public domain, and so remained a part of the public domain until long after the construction of said ditch; that the rights of the city of Denver, or the inhabitants thereof, if any, were acquired subject to the prior vested rights of the Platte & Denver Ditch Company that all lands acquired by the city, and the inhabitants thereof, were subject to the rights and privileges of the company; that the Platte & Denver Ditch Company, prior to the time of the expiration of its charter, leased certain water rights to divers and sundry persons, some of which water rights to be perpetual leases for milling purposes, and that the lessees and their assigns relied upon these leases, and constructed large flour mills, to be operated by the water power thus leased, and the water from the ditch has been for many years used for the purpose of operating the machinery of said mills, and cannot be dispensed with, except at ruinous loss; that the Platte & Denver Ditch Company, by proper conveyances, in the year 1884, conveyed its ditch and right of way, together with its rights, privileges, and appurtenances, to the plaintiff company; that one of the chief considerations for the conveyance was that the plaintiff was to keep good the contract or lease of water rights and power theretofore made; that the Platte & Denver Ditch Company, as well as the plaintiff, kept the ditch in good order and repair, and have maintained and kept the same without any negligence whatever. It is further set up that, in a certain cause entitled "City of Denver vs. Mullen," the district court in and for the county of Arapahoe granted a decree to the effect that, as to the city of Denver, the plaintiff was lawfully and of right entitled to the full and unobstructed flow of water through and along the Platte & Denver ditch to the mills of the plaintiff, without any let or hindrance or obstruction of the water in said ditch, and without any interference with said ditch by the city of Denver, or its agents or employes; and therein, and by the said decree, enjoined the city of Denver, its agents, attorneys, and employes, from in any wise or manner interfering with the ditch or the water therein. Subsequently the decree entered in said cause was affirmed in the supreme court. 3 P. 693. That thereafter, in another cause, entitled "Anderson vs. Platte & Denver Ditch Co.," the rights of the owners and operators of the ditch were sustained. That on or about the 25th day of February, 1888, plaintiff received the following notice from the mayor of the city of Denver: "You are thereby notified to comply with the order of the city council of the city of Denver, as expressed in ordinance No. 10, 1888, passed and approved the 21st day of February, A.D.1888, in this, to wit: To confine the channels of the ditches operated and controlled by you to the width and depth in said ordinance specified, and so to construct the same as to prevent washing and cutting away of the property along the lines of said ditches. Upon failure to comply with said requirements, and upon failure to begin the said work within ten days from the receipt of this notice, you will be proceeded against according to law. WILLIAM SCOTT LEE, Mayor."

The ordinance referred to reads as follows: "A bill for an ordinance to change the construction of the ditches operated and controlled by the Platte and Denver Ditch and Milling Company within the limits of the city of Denver. Be it enacted by the city council of the city of Denver: Section 1. Whereas, in the opinion of the city council of the city of Denver, the public welfare and safety require there should be a change in the present construction of the ditches operated and controlled by the Platte and Denver Ditch and Milling Company within the limits of the city of Denver, the said Platte and Denver Ditch and Milling Company is hereby ordered to so confine and construct the channels of their said ditches, by boxing, fluming, or otherwise, as to prevent the further washing and cutting away of the property along the lines of the said ditches, and to reduce their said channels to a maximum width of eight feet for each of their said ditches, and a maximum width of not to exceed sixteen feet where the waters of both said ditches flow in one channel, viz., from Mullin's Mill, in West Denver; thence running, in a northerly direction, to a point where the waters of both said ditches empty into the South Platte river, and to a depth sufficient only to carry the necessary water for all purposes of said the Platte and Denver Ditch and Milling Company, pursuant to section 4 of an ordinance entitled 'Ordinance No. 38, 1886.--Ditches and Flumes for Manufactories,' passed and approved the 22d day of March, A.D. 1886." Section 4 of ordinance No. 38 reads as follows: "Sec. 4. All persons or corporations, making, constructing, owning, or using any ditch, flume, bridge, or crossing as aforesaid, shall keep the same in good repair whenever so required to do by said city, and all ditches, flumes, bridges, and crossings shall be located, constructed, and built under the supervision of said city, or some officer of said city duly authorized to superintend the same; and the city council shall have the right and power to order, from time to time, such changes in the location and construction of the same as in their opinion the public welfare and safety require; and every such person or corporation who shall neglect, fail, or refuse to comply with the requirements of this article, or to obey any order of said city in reference to the same, after ten days' notice in writing, signed by the mayor, has been served on such person or corporation, shall, upon conviction thereof, be fined in a sum of not less than fifty dollars, nor more than one hundred dollars, and shall be liable to be prosecuted for every day such person, persons, or corporation shall neglect, fail, or refuse to comply with the requirements or provisions of this article, or the requirements of said city council, as distinct and separate offenses, and upon conviction be fined as aforesaid." To this complaint a demurrer was interposed and sustained. Plaintiff elected to stand by its complaint, and prosecutes this appeal.

Practically, but two questions are presented for our consideration: Are the ordinances invalid? Has the chancery court power to pass upon the invalidity of the ordinances, and enjoin the city and its authorities from prosecuting the plaintiff for violation thereof?

It is contended by counsel for appellees that the above-recited section is valid, and clearly within the police power of the municipality. We cannot subscribe to that view. "The construction of statutes, by which it is determined whether they contravene constitutional provisions or not, frequently requires nice discrimination between matters which concern private rights and such as affect the public weal; between matters in which the private interest is immediate and the public interest remote, and such as interest the public directly and individuals incidentally. The taking of property, or the legislative interference with private rights, as a police regulation, must have for its immediate object the promotion of the public good, in the broadest sense." Upon a review of the authorities, and upon principles consistent with "the genius of our free institutions and the constitutional guaranties of rights," it may be fairly deduced that the tests of all police regulations affecting proprietary rights are whether they are enacted in the real interest of the public, and whether the public interests are sought to be subserved by appropriating to public use private property otherwise than in the exercise of the right of eminent domain. In judging whether or not a statute falls within the first class, we have a wide field of inquiry. We may determine whether the provisions of the act are...