San Luis Land, Canal & Imp. Co. v. Kenilworth Canal Co.

• Decision Date: 27 March 1893
• Citation: 3 Colo.App. 244,32 P. 860
• Parties: SAN LUIS LAND, CANAL & IMP. CO. v. KENILWORTH CANAL CO.
• Court: Colorado Court of Appeals

32 P. 860

3 Colo.App. 244

SAN LUIS LAND, CANAL & IMP. CO. v. KENILWORTH CANAL CO.

Court of Appeals of Colorado

March 27, 1893

Appeal from district court, Rio Grande county.

Action by the Kenilworth Canal Company against the San Luis Land Canal & Improvement Company for the condemnation of the right of way for a canal through a certain tract of land. From a decree condemning the land and awarding damages to defendant the latter appeals. Affirmed.

Holbrook & Brown, F.B. Webster, C.M. Campbell, and F.C. Goudy, for appellant.

George Estes, C.A. Johnson, and McIntire &amp McDonald, for appellee.

RICHMOND P.J.

This action was commenced in the district court of Rio Grande county by the Kenilworth Canal Company against the San Luis Land, Canal & Improvement Company for the condemnation of the right of way for a canal through a certain tract of land containing about 56 acres, situate on the Rio Grande river. The petition was presented to the judge of the court in vacation, and by him set down for hearing at the succeeding term of the court. Thereafter the petitioner applied to the court for permission to enter upon the land and proceed with the construction of its canal, which permission was granted upon a deposit being made of $250. Motion was made by the defendant company to vacate this order, which was denied. Answer was subsequently filed, and motion interposed for judgment upon the pleadings, by the defendant company. This also was overruled. The commissioners were duly appointed to review the premises, evidence was taken, and resulted in a judgment favorable to the petitioner. The total damages were fixed at $202.50.

Several errors are assigned why this judgment should be reversed, and we will take them up in the order of their presentation by appellant; but before doing so we will say that, so far as the proceedings are concerned, they appear to have been strictly in conformity with the provisions of the act entitled "Eminent Domain."

By section 238, c. 21, Gen.Laws 1883, it is provided "that in all cases where the right to take private property for public or private use without the owner's consent, or the right to construct or maintain any railroad, public road toll road, ditch, bridge, ferry, telegraph, flume, or other public or private work or improvement, or which may damage property not actually taken, has been heretofore or shall hereafter be conferred by general law or special charter upon any corporate or municipal authority, public body, officer, or agent, person or persons, commissioner, or corporation, and the compensation to be paid for or in respect of the property sought to be appropriated or damaged for the purposes above mentioned cannot be agreed upon by the parties interested, *** it shall be lawful for the party authorized to take or damage the property so required, or to construct, operate, and maintain any railroad, public road, toll road, ditch, bridge, ferry, telegraph, flume, or other public or private work or improvement, to apply to the judge of the district or county court, either in term time or vacation, where the said property, or any part thereof, is situate, by filing with the clerk a petition setting forth by reference his or their authority in the premises, the purpose for which said property is sought to be taken or damaged, a description of the property, the names of all persons interested therein as owners or otherwise, as appearing of record, if known, or, if not known, stating that fact, and praying such judge to cause the compensation to be paid to the owner to be assessed." Under the provisions of this section and the succeeding sections of the act these proceedings were instituted, and by the petition it is recited that both the petitioner and the defendant company are corporations duly existing under and by virtue of the laws of the state of Colorado; and we have no doubt but that the section contemplates the institution of such proceedings by one corporation against another, as well as by a corporation of a public character against the property of a private individual.

The first assignment of error is based upon the refusal of the judge to set aside and vacate the order granting permission to the plaintiff company to enter upon the land before final hearing, and in support of this contention our attention is called to article 2 of section 15 of the constitution, which provides "that private property shall not be taken or damaged for public or private use without just compensation. Such compensation shall be ascertained by a board of commissioners of not less than three freeholders, or by a jury, when required by the owner of the property, in such manner as may be prescribed by law; and until the same shall be paid to the owner, or into court for the owner, the property shall not be needlessly disturbed, or the proprietary rights of the owner therein invested." We cannot see how counsel for appellant can seriously insist that this provision of the constitution prohibits the judge of the court, or the court, from making an order permitting the petitioner to enter upon the land pending the proceedings upon the petitioner's depositing what in the judgment of the judge or court is a sufficient sum to compensate the...