Roth v. Wilkie

• Decision Date: 02 August 1960
• Docket Number: No. 18807,18807
• Citation: 143 Colo. 519,354 P.2d 510
• Parties: Albert L. ROTH, Plaintiff in Error, v. Lonnie H. WILKIE and Minnie D. Wilkie, Defendants in Error.
• Court: Colorado Supreme Court

Page 510

354 P.2d 510

143 Colo. 519

Albert L. ROTH, Plaintiff in Error, v. Lonnie H. WILKIE and Minnie D. Wilkie, Defendants in Error.

No. 18807.

Supreme Court of Colorado, En Banc.

Aug. 2, 1960.

Henry & Keating, Denver, for plaintiff in error.

No appearance for defendants in error.

SUTTON, Chief Justice.

The parties are here in the same order they appeared in the trial court and we will so refer to them or by name.

Roth in July of 1954 purchased a plot of unimproved ground approximately 200' by 426' in Arvada, Colorado. Subsequently he divided the plot into five building sites and sold four of them, retaining the site in the middle, described as the West 86 feet of the East 256 feet of the North 200 feet of Block N, Arvada Gardens, County of Jefferson, State of Colorado. In early 1955 he sold the two sites on the west of the one retained for $2,500.00 each, and the two on the east for $2,750.00 each.

The original tract of land was serviced by two roads. One of these, West 63rd Place, runs east and west and lies immediately north of his property. The other, Balsam Street, runs north and south, and ends at the south boundary of plaintiff's property, affording access to West 62nd Avenue. After subdividing the property and selling four of the five sites plaintiff's site continued to be serviced by the two roads. The other four sites were serviced only by West 63rd Place.

The defendants are the owners of Lots 22 and 23 of the Ralston Heights Subdivision in the City of Arvada. Lot 22 adjoins plaintiff's property on the south.

In October of 1957, upon the application of the Wilkies, the City of Arvada vacated the platting of Ralston Heights Subdivision as it pertained to Lots 22, 23 and 32 and approved the replatting of the same. This was done in such a manner as to close that portion of Balsam Street adjoining plaintiff's property and incorporate it into a new lot, thus depriving plaintiff of access to West 62nd Avenue by way of Balsam Street.

In his amended complaint plaintiff prayed judgment for $5,000.00 and costs. The damages were alleged to have been sustained as a result of the vacation of Balsam Street in the manner aforesaid.

Trial was had to the court, which granted defendant's motion to dismiss at the close of plaintiff's case. In so ruling, the court held that 'the proof that you have here does not entitle you to damages in this particular case; and even if it did damages have not been adequately proven * * *.'

The sole issue presented is the propriety of the ruling of the trial court dismissing plaintiff's complaint for failure of proof.

An abutting land owner specially injured by the vacation of a street may recover the actual damages sustained. The general rule is stated in 11 McQuillin, Municipal Corporations 134, § 30.188, as follows:

'Admitting that a landowner is specially injured by the closing of a street or part thereof, the question arises whether in any event he can recover damages because thereof, and in answer it may be said that the right to recover is almost universally admitted * * *. In the absence of any special statute, the general rule is that an abutting owner who is specially injured is entitled to compensation for damages caused by the vacation of a street or alley. * * *.'

This rule was applied by this court in Denver Union Terminal Railway Co. v. Glodt (1919), 67 Colo. 115, 186 P. 904, where the plaintiff was allowed to recover actual damages incurred as the result of the vacation of a street abutting on his property, impairing to a substantial degree his right of access to this property by way of such street.

The question presented thus becomes one of whether this...