Swift v. Smith

• Decision Date: 06 December 1948
• Docket Number: 16087.
• Citation: 119 Colo. 126,201 P.2d 609
• Parties: SWIFT et al. v. SMITH et al.
• Court: Colorado Supreme Court

201 P.2d 609

119 Colo. 126

SWIFT et al. v. SMITH et al.

No. 16087.

Supreme Court of Colorado, en Banc.

December 6, 1948

Rehearing Denied Jan. 10, 1949.

Original proceeding in nature of certiorari brought under rule 106(a)(4) of Rules of Civil Procedure by Eleanor Swift and others against Hon. Osmer E. Smith and another, Judges of the District Court of the First Judicial District in and for the County of Jefferson, State of Colorado, and others, to determine whether respondents abused their discretion in granting orders for immediate possession of certain premises belonging to complainants to be used for highway purposes.

Writ granted in accordance with opinion.

Jean S. Breitenstein, John G. Reid, E. B. Evans, A D. Quaintance, and William D. Johnson, all of Denver, for complainants.

George J. Robinson, of Lakewood, for respondent Board of County Commissioners of Jefferson County.

H Lawrence Hinkley, Atty. Gen., Duke W. Dunbar, Deputy Atty Gen. and John M. Evans, Asst. Atty. Gen., for respondent State Highway Department.

ALTER Justice.

This is an original proceeding in the nature of certiorari brought under rule 106(a)(4), R.C.P.Colo., by Eleanor Swift and others, against Osmer E. Smith, district judge, and other officials, to determine whether the latter abused their discretion in granting orders for immediate possession of certain premises belonging to Swift and others to be used for highway purposes. We issued a rule to show cause, whereupon an answer was filed, and the record in the district court was certified and filed herein.

The following facts appearing in the complaint here and record certified to us, fairly present complainants' contentions. On May 13, 1948, the Board of County Commissioners of the county of Jefferson, Colorado, and the State Highway Commission of said state filed their complaint in eminent domain in the district court, in which proceedings they sought a right of way and immediate possession of land therefor across premises belonging to the respondents therein. In the complaint in the condemnation action there were thirteen different parcels of land set forth by legal description, of which we are here concerned with parcels 1 to 6, inclusive, only. Upon the filing of the complaint, Judge Smith entered an order for the issuance of summons and for the publication of notice, making the same returnable July 30, 1948. May 21, 1948, on application of the complainants in the eminent domain proceedings, an order for immediate possession of parcels 5 and 6 was entered by Judge Smith, by which order it was required that petitioners pay into the registry of the court the sum of $2,225.00 as a condition precedent to taking immediate possession of said parcels, which deposit was immediately made in compliance with said requirement.

In the order for temporary possession entered by Judge Smith is the following:

'It further appearing from the evidence that the following sums are sufficient for petitioners to pay into this Court to compensate the respondents herein when the proper compensation is ascertained for the taking of said parcels. Parcel number 5, $2185.00, Parcel number 6, $40.00.' (Italics ours)

So far as the record reveals, there was no evidence Before the court upon which to base its determination of valuation other than the affidavits of Watson A. Bowes, Sam Y. West, and H. W. C. Prommel. Prommel's affidavit was in detail and specifically set forth his qualifications and the basis upon which he arrived at valuations in amounts greatly in excess of those placed upon the premises by Bowes and West. The Bowes and West affidavits, after the formal parts thereof, were identical in form and read:

'That he has no interest in the above-entitled proceeding, that he is acquainted with the parcels of land sought to be taken in such proceeding and described in the petition in condemnation therein, and that he finds the value of the said parcels of land and the net damages, if any, to the remaining property of the respective owners of said parcels, and the compensation which is proper to be made prior to petitioners' temporarily taking possession of said parcels of land to be as follows: Parcels Nos. 5, $2185.00; 6, $40.00.'

After the entry of the order for immediate possession of parcels 5 and 6, Judge Smith and Judge Davies, both being judges of that judicial district, disqualified themselves in the eminent domain proceeding, whereupon Judge Leddy, being called upon to preside, held a hearing in Pueblo, Colorado, on June 1, 1948. The record discloses that Judge Leddy had Before him affidavits of Bowes and West in the identical form of that hereinBefore set forth, as well as the Prommel affidavit mentioned, and with no other evidence as to valuations, Judge Leddy made and entered an order for petitioners' immediate possession of parcels 1, 2, 3 and 4. Prior to entering the order, and as explanatory of his action with reference thereto, is the following quotation from the record:

'Mr. Evans: Now, then, that is true except in the question of the matter of the size of the deposit required. Now then, Chapter----

'The Court: It has always been my idea that the deposit is somewhat of a token proposition.

'Mr. Evans: Yes, sir.

'The Court: And had no effect other than to fill out blanks. I am saying that and if I am wrong, I am giving you an opportunity to set me right.

'Mr. Evans: That is right, Your Honor. As a matter of fact. I have always felt that the deposit, although the law does not specifically say one way or the other, is applicable to those parties, and you might be unable to compensate the parties in case the judgment rendered in the final condemnation were higher than they thought it would be. In the case of the federal government, except under the special so-called power act, the deposit is not required, but we have always followed the practice of making a deposit. I will say that because I think it makes most people happier if a deposit is on file. I think it is a token. Now then, I might read this portion of Section 6, Chapter 61, which concerns temporary possession. [reading a portion of section 6, chapter 61]

'In other words, let's assume we were a private party condemning for the time being; the Court is the one that determines the size of the deposit. There is nothing here that says the Court is bound by any affidavits. Affidavits are the only matters presented to the Court and I feel anything that is advisable to the Court is germane to the proceedings and therefore, it is at the discretion of the Court, of course, and may be considered by the Court in determining the size of the deposit. Testimony, affidavits, examination by the Court physically, almost anything that assists the Court in determining what he thinks would be an adequate back log as far as compensation is concerned----

'The Court: If it was a private party, I would be very careful in going into it.

* * *

* * *

'The Court: I am inclined to think under what I have, I have to give them this. As I say, I think the amount of the deposit is a token proposition. I shall sign this order [for temporary possession] as presented and you may dictate your exception to the reporter.' (Italics ours)

Complainants here contend that the court abused its discretion in requiring, as a condition precedent to its order for temporary possession, the county and highway department to deposit into court the sum of $2,225 for parcels 5 and 6, and $585.00 for parcels 1, 2, 3 and 4, and that these orders violate the due process provisions of the Fourteenth Amendment to the Constitution of the United States and article II, sections 15 and 25, of the Constitution of the State of Colorado. They conclude the prayer in their complaint for certiorari with the following:

'* * * commanding respondents to show cause as to why it is necessary to condemn said lands and as to why said Court should not require the deposit of an adequate sum to secure complainants for any damages they may sustain because of the taking of said property herein mentioned, and that a stay of proceedings in the Court below shall be granted and the citation shall so state.' (Italics ours)

In answer to the complaint, respondents, after making admissions and denials, state:

'Likewise, these respondents deny that Sec. 47, Ch. 61, 1935 Colorado Statutes Annotated, makes any designation of the amount or proportion of any amount of the deposit required, but, on the contrary, they would affirmatively show that Sec. 47, Ch. 61, 1935 Colorado Statutes Annotated, specifically grants the Court the jurisdiction over the parties to a condemnation suit, with power to grant temporary possession or right of possession during the pendency of the action, upon deposit with the clerk of the Court 'for the use of respondent of that amount of money which the court or judge thereof, from the evidence of two disinterested persons selected by the petitioner and from such other evidence as the court or judge thereof may require, shall determine to be compensation proper to be made to any person or corporation holding or owning any right, title, interest, claim, or lien or estate in, to or upon any lands, real estate, mining claim or any interest therein, * * *' (Italics ours)

Further in said answer we find:

'That the complaint filed herein fails to contain any allegation relating to a lack of jurisdiction on the part of the trial court, but, on the contrary, specifically alleges that the actions pending in the trial court and the orders issued by the district judges, who are made respondents herein, were commenced and begun pursuant to Ch. 61, 1935 Colorado Statutes Annotated, relating to condemnation proceedings, and specifically Sec. 47 of said Ch....