Smith v. Clifton Sanitation Dist.
| Decision Date | 09 August 1956 |
| Docket Number | No. 17920,17920 |
| Parties | Phillip P. SMITH, Lillian E. Smith, Loyd Merriman, Carrie M. Merriman, O. L. White, George F. McIntosh, Anna McIntosh, Frank B. Bridel, Anton R. Chvilicek, Frances H. Chvilicek, Edna L. Harris, Dewey E. Harris, W. P. Dunston, Merie D. Motz, Anna Motz, Donald E. Shepard, Stella M. Shepard and Marguerite Motz, Plaintiffs in Error, v. CLIFTON SANITATION DISTRICT, a Governmental Subdivision and Body Corporate, Defendant in Error. |
| Court | Colorado Supreme Court |
Adams, Heckman, Traylor & Ela, Ivan P. Kladder, Grand Junction, for plaintiffs in error.
Groves, Dufford & Turner, Grand Junction, for defendant in error.
In the exercise of its admitted power of eminent domain, defendant in error, herein referred to as 'District' filed its petition in condemnation against Clyde A. Peterson, the owner of a certain tract of land embracing 21 acres, for the purpose of acquiring the same and to construct thereon a sanitary disposal system. This condemnation petition was filed October 29, 1955, after negotiations between the District and Peterson had failed to bring about an agreement between the parties concerning the value of the land to be taken.
During the time these negotiations were pending the plaintiffs in error, together with some thirty-seven other persons, claiming to own land within an 11 square mile area adjacent to and including the Peterson land, executed a Restrictive Use Agreement which attempted to prohibit the use of their respective properties for certain purposes, including a sanitary disposal system. Some three days prior to the filing of the condemnation proceeding, counsel for the District were advised that additional persons had executed the Restrictive Use Agreement. Following the institution of the condemnation case a Cross-Petition was presented to the trial court on behalf of plaintiffs in error and other persons. The Cross-Petitioners asked to intervene in the case and demanded damages because of the proposed taking of the Peterson land for a disposal system. After hearing, this application to intervene was denied, and from the judgment entered thereon, plaintiffs in error bring the case here on writ of error.
The Restrictive Use Agreement was dated and recorded September 22, 1955. On September 23, 1955, thirty-seven other persons signed the same agreement.
The relevant portions of the Restrictive Use Agreement purports to bind all of the land of any person signing the agreement within nine sections of land in Township 1 S. Range 2 E. Ute Meridian, Mesa County, Colorado. The purpose of the restrictive covenants was stated to be 'for the purpose of keeping said tracts desirable, uniform and suitable for agricultural and residential and limited commercial purposes in accordance with the desires of the parties hereto'. Said covenants were declared to be covenants running with the land originally to October 1, 1960 and for successive five year periods thereafter, provided fifty-one per cent of the acreage owners 'shall be able to abandon, alter or amend these restrictions at any time after October 1, 1960 by joining in a mutual release, alteration or amendment in writing to be duly recorded.' The agreement provided that no sewage lagoons shall be located or maintained which do not first employ a closed primary digestive system between the source of the sewage and the said lagoon; it also prohibited junk yards, tanneries, glue factories, plants for the manufacture of explosives, fertilizers, oil and gas refineries, dance halls, breweries, etc.
We are called upon to determine whether the intervenors by the execution and recording of these restrictive covenants should be made parties respondent in the condemnation case and permitted to recover damages because of the taking of the Peterson land for the uses of the District. It is not disputed that the petitioners seeking to intervene represent owners of land in a number of sections surrounding the land sought to be condemned, some of...
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