Town of Glendale v. City and County of Denver

• Decision Date: 17 March 1958
• Docket Number: No. 17929,17929
• Citation: 322 P.2d 1053,137 Colo. 188
• Parties: TOWN OF GLENDALE, a municipal corporation, Arapahoe County, State of Colorado, Plaintiff in Error, v. CITY AND COUNTY OF DENVER, a municipal corporation, Defendant in Error.
• Court: Colorado Supreme Court

Page 1053

322 P.2d 1053

137 Colo. 188

TOWN OF GLENDALE, a municipal corporation, Arapahoe County State of Colorado, Plaintiff in Error, v. CITY AND COUNTY OF DENVER, a municipal corporation Defendant in Error.

No. 17929.

Supreme Court of Colorado, En Banc.

March 17, 1958.

Cranston & Arthur, Denver, for plaintiff in error.

John C. Banks, Horace N. Hawkins, Jr., Earl T. Thrasher, Hans W. Johnson, Denver, for defendant in error.

DAY, Justice.

This cause is before this court on writ of error. In the court below the City and County of Denver brought an action in the district court of Arapahoe County against a large number of defendants including the plaintiff in error, seeking to acquire by condemnation certain parcels of land described in the petition, and prayed for title to and possession of needed rights of ways or easements through such lands, and through the public streets of the Town of Glendale for the construction, operation and maintenance of sanitary and storm sewers and appurtenances thereof.

We will refer to the plaintiff in error as Glendale and to the defendant in error as Denver. The other defendants in the action in the court below are not parties to this writ of error.

At the time of filing its petition in eminent domain, Denver also filed a petition for immediate possession of the property and rights of way sought. On the date of the hearing for immediate possession, Glendale filed an answer generally denying Denver's right to the relief sought. Glendale asserted that before any rights could be acquired by Denver the permission of Glendale should be obtained pursuant to C.R.S. 139-52-2(2). By counterclaim Glendale asked the court for injunctive relief 'enjoining and restraining the petitioner [Denver] herein from constructing, operating or maintaining any sewerage facilities within the territorial limits of this Respondent [Glendale], and from taking any action to acquire any property for such purpose by the exercise of the right of eminent domain, or otherwise, * * *.' Other allegations of its counterclaim averred that Denver had not negotiated in good faith with Glendale for the rights sought to be acquired and had not otherwise exhausted its administrative remedy.

To the orders of the trial court denying a temporary injunction and granting Denver temporary possession, Glendale brings the matter to this court by writ of error.

Questions to be determined.

First: Is writ of error the proper procedure to review an interlocutory order of the district court granting immediate possession in eminent domain?

This question is answered in the negative.

An order for temporary possession as interlocutory and not a final judgment or final determination of the action. Interlocutory orders are not reviewable by writ of error. In Burlington & Colorado Railroad Co. v. Colorado Eastern Railroad Co., 45 Colo. 222, 100 P. 607, the syllabus enunciating the clear rule on appeals reads:

'Appeals-When Allowed--In proceedings under the Eminent Domain act, an order or decision of the district court that petitioner is endowed with the powers of the act and may lawfully acquire by this method the lands described, is interlocutory; an appeal lies only where the damages have been ascertained and the finding approved by the court.'

The court in the body of the decision said:

'Our statute and our practice discourage the review of a cause piecemeal. * * *'

The court further said:

'It is unquestionably true that a judgment or decree which fixes finally the rights of the party in the action in which it is rendered and leaves nothing further to be done before such rights are determined, is final. The principal object of these condemnation proceedings is to ascertain the price which the petitioner must pay for the land which he desires to acquire, and, until that determination is made by a board or jury and the same has been approved by the court, it cannot be said that the rights of the parties have become fixed or determined.' (Emphasis supplied.)

In Vandy's Inc. v. Nelson, 130 Colo. 51, 273 P.2d 633, 634, this court said:

'Our rules and decisions discourage the review of a cause piecemeal. The order which we are asked to review is not a final judgment in the cause, but interlocutory, to which a writ of error will not lie unless expressly authorized by rule or statute. We have no such rule or statute.' (Emphasis supplied).

Again in Swift v. Smith, 119 Colo. 126, at page 139, 201 P.2d 609, at page 616, dealing directly with the matter of immediate possession, the court stated quite clearly:

'The order for temporary [sic] possession was clearly interlocutory, and a writ of error did not lie to review the same (Burlington & Colorado R. Co. v. Colorado Eastern R. Co., 45 Colo. 222, 100 P. 607, * * *; Miller v. City and County of Denver, 84 Colo. 397, 270 P. 866; First National Bank [of Greeley] v. Minnesota Mines, Inc., 109 Colo. 6, 121 P.2d 488); consequently, complainants had no plain, speedy or adequate remedy at law, and certiorari lies.' (Emphasis supplied.)

The proper proceeding for relief from an interlocutory order as stated in Swift v. Smith, supra, is by certiorari. Later in Potashnik v. Public Service Company of Colorado, 126 Colo. 98, 247 P.2d 137, 138, this court, we think, intended to and did in fact remove all confusion as to procedure by carefully outlining the proper remedy as follows:

'* * * within the period of stay of execution granted by the trial court, the owners, not having the right of review of said interlocutory order upon writ of error, filed original action by way of certiorari in this court, alleging that otherwise they were without remedy whatsoever to protect their property from seizure under the order of the district court, which they contend was without lawful authority. * * *'

The court then went on to say, 126 Colo. at page 101, 247 P.2d at page 138:

'That a writ of error to review an interlocutory order of the district court will not lie is conceded. That an original proceeding in the nature of certiorari under Rule 106, R.C.P. Colo., when directed to an endangered, fundamentally substantive and substantial right, is maintainable and recognized as a proper remedy is settled. Swift v. Smith, 119 Colo. 126, 201 P.2d 609.'

Second: Is injunctive relief the proper remedy to be accorded a defendant in a proceeding in eminent domain?

This question is answered in the negative.

The law can be no more clearly stated than in Colorado Central Power Co. v. City of Englewood, 10 Cir., 89 F.2d 233, 235, wherein the United States Circuit Court said:

'It is well settled that where objections may be heard in defense to a condemnation proceeding resort to equity may not be had because one having such an adequate and complete remedy at law cannot invoke injunctive relief. State of Georgia v. City of...