Potashnik v. Public Service Co. of Colo., 16798

• Decision Date: 14 July 1952
• Docket Number: No. 16798,16798
• Parties: POTASHNIK et al. v. PUBLIC SERVICE CO. OF COLORADO.
• Court: Colorado Supreme Court

Page 137

247 P.2d 137

126 Colo. 98

POTASHNIK et al. v. PUBLIC SERVICE CO. OF COLORADO.

No. 16798.

Supreme Court of Colorado, en Banc.

July 14, 1952.

Rehearing Denied Aug. 4, 1952.

Philip Hornbein, Philip Hornbein, Jr., Harold Potashnik, Denver, for complainants.

Lee, Bryans, Kelly & Stansfield, Denver, for respondent.

CLARK, Justice.

This is an original proceeding in the nature of certiorari. The respondent, Public Service Company of Colorado, to which we hereinafter refer as Company filed petition in the district court in condemnation of certain lands adjacent to its La Combe plant and belonging to complainants here, and whom we will designate as the 'owners.' It is said that increased consumption of electrical current requires the enlargement of the La Combe generating plant, and that in order to construct a larger plant and install the additional generating units needed upon lands now owned by the Company, it is essential that they remove their machine shop to another location. Additional land further is needed to enable the Company to store a supply of coal to insure continuous operation. Being unable to agree with the owners upon a price for the purchase of their lands, the Company filed the condemnation action. It later added to the original petition an amendment alleging itself to be, in addition to a generator of electrical energy, a producer of steam for the heating of many buildings in the principal business section of Denver and which it caused to be conveyed to its point of use by pipe line. The Company then filed and served notice of hearing upon its petition for an order from the district court granting to it the temporary right to immediate occupancy and use of the lands involved.

The owners (respondents in the condemnation action) filed their motion seeking dismissal of the Company's petition for immediate possession contending: (1) That there was no statutory or legal authority pursuant to which the Company had the right of condemnation against said lands for the purposes set forth in its petition; and (2) that even if the Company had the right of condemnation under such circumstances, yet it was not entitled to possession of the land pendente lite. The trial court overruled the motion to dismiss the Company's petition for immediate possession and, after hearing evidence, on December 10, 1951, entered an order granting the Company possession upon depositing in the registry of the court the sum of fifty thousand dollars ($50,000) pending final determination of the value of the lands involved.

On December 19, 1951, and within the period of stay of execution granted by the trial court, the owners, not having the right of review of said interlocutory order upon writ of error, filed original action by way of certiorari in this court, alleging that otherwise they were without remedy whatsoever to protect their property from seizure under the order of the district court, which they contend was without lawful authority. The complaint appearing meritorious, we entered a rule upon the Company to show cause why the writ should not issue in accordance with the prayer thereof, and thereupon ordered further stay of enforcement of the order of the district court granting immediate possession pending final determination of our rule. Responding to our show-cause order the Company, on January 11, 1952, filed its motion for dismissal of said original proceeding. Upon these pleadings the matter was submitted and arguments, both oral and written, presented in due course. Upon consideration of said matters by our Court en banc shortly following the conclusion of the arguments, we determined that the Company's motion to dismiss the proceedings in this court should be denied; that our temporary rule should be made absolute; and it was so ordered. Thereupon it further was ordered that the clerk of the district court certify to this court a correct transcript of the cause pending in said district court. The record has been so certified; no further showing has been made here, and, as we understand, the parties and their respective counsel now desire our final disposition of the matter by formal opinion upon the record and arguments already before us.

The transcript from the district court, aside from confirmation of certain pleadings involved, brings us nothing new other than the evidence presented upon hearing of the motion for immediate possession, the greater portion of that testimony relating to market value. The entire controversy confronting us on original proceeding relates to matters of law. The complaint here is that the order of the district court is without authority of law. If so, it is of no validity; if supported by law it is proper, and we are not presently further concerned about it.

That a writ of error to review an interlocutory order of the district court will not lie is conceded. That an original proceeding in the nature of certiorari under Rule 106, R.C.P.Colo., when directed to an endangered, fundamentally substantive and substantial right, is maintainable and recognized as a proper remedy is settled. Swift v. Smith, 119 Colo. 126, 201 P.2d 609.

Whatever may have been the ancient right of condemnation, it has been restrained by constitutional limitations in the protection of individual property rights. The power lies dormant in the state until the legislature speaks. 5 Thompson on Real Property (Permanent Ed.), section 2578, page 327. The right to condemn private property is therefore a creature of statute, pursuant to which it must clearly...