Sprague v. Stead

• Decision Date: 02 March 1914
• Parties: SPRAGUE v. STEAD.
• Court: Colorado Supreme Court

139 P. 544

56 Colo. 538

SPRAGUE v. STEAD.

Supreme Court of Colorado

March 2, 1914

Error to District Court, Larimer County; Neil F. Graham, Judge.

Suit by Fred H. Sprague against J. D. Stead. Decree for defendant and plaintiff brings error. Affirmed, except as to description, and remanded for amendments.

George A. Carlson and Claude C. Coffin, both of Ft. Collins, for plaintiff in error.

R. W Fleming and Farrar & Fleming, both of Ft. Collins, for defendant in error.

GABBERT, J.

Sprague as plaintiff, brought suit in the nature of trespass and for damages against Stead for breaking the locks, gates, and fences of plaintiff, and entering upon and passing over his premises at divers times during the summer of 1911. He alleged that defendant threatened to continue to trespass upon his premises, which would cause irreparable injury and the necessity of a multiplicity of suits, and prayed for an injunction restraining defendant from continuing the trespasses. For answer defendant admitted that he broke and entered and passed through plaintiff's premises, as charged, but justified these acts upon the ground that the gates and fences he was charged with having broken were obstructions upon a public highway, which he alleged was established and occupied by the public while the lands over which it passes were a part of the public domain not reserved for public uses, and by way of cross-complaint set forth that he had been damaged by plaintiff's acts in obstructing the highway, and prayed for damages and an injunction inhibiting him from obstructing such highway in the future. By replication plaintiff denied the existence of the public highway or any injury to defendant. Trial was had to the court, and from the evidence adduced the court found that the way across plaintiff's premises was a public highway refused plaintiff any relief against the defendant, and enjoined plaintiff from further obstructing such highway. Plaintiff brings the case here on error.

The first error assigned is that the cross-complaint did not state a cause of action entitling defendant to the injunction awarded. The cross-complaint alleged, in substance, that defendant was the owner of premises upon which he operated a hotel for tourists during the summer season that these premises are adjacent to those through which the highway in question runs; that he is the owner of lands beyond these premises which he uses for pasture and timber; that there are points of scenic interest in the vicinity of these lands; that the only other public road except the one involved by which he and his guests can get to these lands and scenic places is about seven miles long, as against a little more than one-half mile by the road across the premises of plaintiff; that this road was established, used, and occupied by the public as such for more than 20 years prior to the time the action was instituted by plaintiff; that on or about the 4th of July, 1911, and at divers times thereafter, plaintiff unlawfully and without right obstructed such road and barricaded it against the lawful use thereof by defendant and the public generally, and with the intention to prevent the defendant from using such road in the future as a means of getting to and from his pasture and timber lands. The particular ground urged in support of the proposition that the cross-complaint fails to state a cause of action is to the effect that it does not appear therefrom that defendant is entitled to use the highway for a different purpose from that of other people, or that he has suffered any special injury differing in kind from that suffered by the public generally. This rule of law is applicable to cases like Gilbert v. Greeley S. L. & P. Ry. Co., 13 Colo. 501, 22 P. 814, where a railway secures the right of way from a municipality to construct a road along or across a street or other public highway. But that is not this case. This statute (section 5826, Revised Statutes 1908) makes it a criminal offense for any one to obstruct a public highway, and also provides that the person causing the obstruction shall 'be liable to any person or persons, or corporation, in a civil action for any damages resulting therefrom.' So that in cases like the one at bar any person injured by the unlawful obstruction of a highway in the manner mentioned in the statute above noticed is given the special right to maintain an action to recover damages he may have sustained by reason of such obstruction. That this is the purpose of the law is evident from the fact that the statute as originally passed (section 2988, General Statutes) merely provided that no person should obstruct a highway, without providing any penalty. This was amended in 1885 by providing that one obstructing a highway would not only be liable to criminal prosecution, but should also respond in damages to any person injured by such obstruction. It appears from the averments of the cross-complaint, in connection with the allegations of the complaint, that it is the purpose of plaintiff to continue to obstruct the highway involved. It is evident that such action on his part will cause defendant irreparable injury, that his damages would be difficult of ascertainment, and that actions for damages must necessarily result in a multiplicity of suits. In such circumstances equity will assume jurisdiction to...