Town of Eaton v. Bouslog, 17753

• Decision Date: 16 January 1956
• Docket Number: No. 17753,17753
• Citation: 133 Colo. 130,292 P.2d 343
• Parties: , 54 A.L.R.2d 1320 TOWN OF EATON, Colorado, a Municipal Corporation, Plaintiff in Error, v. Nina A. BOUSLOG and John S. Bousiog, Defendants in Error.
• Court: Colorado Supreme Court

Page 343

292 P.2d 343

133 Colo. 130, 54 A.L.R.2d 1320

TOWN OF EATON, Colorado, a Municipal Corporation, Plaintiff in Error, v. Nina A. BOUSLOG and John S. Bousiog, Defendants in Error.

No. 17753.

Supreme Court of Colorado, En Banc.

Jan. 16, 1956.

Wm. C. Rhodes, Greeley, for plaintiff in error.

Robert G. Smith, Greeley for defendants in error.

HOLLAND, Justice.

The board of trustees of the Town of Eaton, an incorporated town, on December 13, 1954, adopted an ordinance entitled 'An Ordinance Declaring Necessity for Improvement of Town of Eaton Cemetery by Enlargement, and Authorizing Town of Eaton to Acquire Necessary Land Therefor by Purchase, Condemnation, or Otherwise.'

On January 14, 1955, the Town filed its petition in condemnation proceedings whereby it sought to condemn the land adjacent to the cemetery and owned by defendants in error. Motion to dismiss said petition was filed by defendants on the ground that the petition did not state a claim upon which relief could be granted, and further, that the Town is not authorized to prosecute or maintain a proceeding in eminent domain to take private lands for cemetery purposes. Hearing was had on said motion on June 13, 1955, after which the court entered judgment of dismissal of the petition. The Town, by writ of error, seeks review of that judgment.

The one question presented which is determinative of this controversy is: Has an incorporated town, under the constitution and laws of Colorado, authority to condemn private lands for use as a cemetery? The authority to exercise such power, being against the common right to own and keep property, must be given expressly or by clear implication; it can never be implied from doubtful language. Under the state constitution the classification and powers of incorporated towns is governed by general laws. Const. XIV, Secs. 13, 14.

The statutory right to establish cemeteries is to be found in C.R.S. '53, 139-32-1(32), which is:

'Cemeteries.--To establish and regulate cemeteries within or without the corporation, and acquire lands therefor, by purchase or otherwise, and cause cemeteries to be removed and prohibit their establishment within one mile of the corporation.'

The grant of power thus conferred, is limited to acquisition by purchase or otherwise. It cannot be implied from the word 'otherwise', that the town is given authority to condemn lands for such purpose. If it can be said that the use of this word creates a doubt, the power of...