Ruth v. Department of Highways
| Decision Date | 30 September 1963 |
| Docket Number | No. 20232,20232 |
| Citation | 153 Colo. 226,385 P.2d 410 |
| Parties | Joseph P. RUTH and the Ruth Company, Plaintiffs in Error, v. DEPARTMENT OF HIGHWAYS, State of Colorado, Defendant in Error. |
| Court | Colorado Supreme Court |
Edward O. Geer, Bruce Ownbey, David G. Manter, Denver, for plaintiff in error.
Duke W. Dunbar, Atty. Gen., John P. Holloway, Chief Highway Counsel Asst. Atty. Gen., Denver, for defendant in error.
Plaintiffs in error, hereinafter called Ruth, were plaintiffs or petitioners in the trial court, and defendant in error the Department of Highways, State of Colorado, hereinafter called the Department, was defendant or respondent.
Ruth is the owner of a parcel of land in Clear Creek County and of certain water and ditch rights and ditch or pipeline rights-of-way appurtenant thereto. State Highway 103 runs through a portion of Ruth's land and the ditch or pipeline right-of-way passes under this highway.
In September of 1957 the Department filed a petition in condemnation to acquire approximately two acres of Ruth's land for the purpose of effecting necessary improvements to State Highway 103. The Department was granted immediate possession and shortly thereafter work began on the highway. Thereafter, a trial was held to determine the compensation to be paid to Ruth by reason of the taking. At the trial Ruth raised no issue with respect to the infringement or destruction of his ditch rights, water rights and ditch or pipeline right-of-way. An award was entered which did not satisfy Ruth and he brought writ of error. That judgment was affirmed. Ruth v. Department of Highways, 145 Colo. 546, 359 P.2d 1033.
Thereafter, Ruth brought this action for mandatory injunction or for damages, alleging that after the Department took possession, his ditch or pipeline right-of-way and his means of conducting water to his land was destroyed in the course of the construction of the new highway and that as a result he was without access to his valuable water rights. He requested that the trial court order the Department to construct and maintain a satisfactory tunnel under the improved highway so that he might enjoy his water rights or, in the alternative, that he be awarded damages for the loss of use of his water rights. He did not allege negligence in the construction or use of the highway.
To this complaint the Department filed a motion to dismiss on the grounds that the matter was res adjudicata by reason of the former condemnation action. No affidavits, depositions or exhibits of any kind accompanied this motion. The trial court, upon this state of the record, granted the motion to dismiss and Ruth brings error.
In its opinion the trial court stated that the trial in the former case was held after the highway was completed and that the damages of which Ruth now complains were therefore obvious at the time of the trial and should have...
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Bristol Bay Prods., LLC v. Lampack
...is not subject to dismissal for failure to state a claim. For support, Bristol Bay relies on our case of Ruth v. Department of Highways, 153 Colo. 226, 385 P.2d 410 (1963), for the proposition that the affirmative defense of issue preclusion cannot be a basis for dismissal under C.R.C.P. 12......
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Bristol Bay Prods., LLC v. Lampack
...subjected it to an award of attorney fees under section 13–17–201, C.R.S.2011. We are not persuaded. In Ruth v. Department of Highways, 153 Colo. 226, 385 P.2d 410 (1963), the supreme court held: To sustain the [affirmative] defense [of res judicata], facts in support of it must be affirmat......
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Williams v. Rock-Tenn Servs., Inc., Court of Appeals No. 14CA2329
...R. Miller, Federal Practice and Procedure § 1357, at 708 (3d ed.2004) ) (tacitly approving this rule); see also Ruth v. Dep't of Highways, 153 Colo. 226, 385 P.2d 410 (1963).¶ 17 Under this rule, "the applicability of the defense has to be clearly indicated and must appear on the face of th......
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City of Englewood v. Weist
...Res judicata barred Englewood from reopening the issue of benefits under the special assessment ordinance. See Ruth v. Department of Highways, 153 Colo. 226, 385 P.2d 410 (1963). Weist also asserted that the ordinance which created the special assessment was invalid and of no force and effe......
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A Litigator's Guide to Summary Judgments
...358, 399 P.2d 99 (1965). 33. Moses, supra, note 15. 34. Kaminsky, supra, note 29; Norton, supra, note 1. 35. Ruth v. Dept. of Highways, 153 Colo. 226, 385 P.2d 410 (1963). 36. Morlan, supra, note 17. 37. Discovery Land, supra, note 19; O'Herron, supra, note 22. 38. 320 F.Supp. 1138 (D.C. S.......