Town of Longmont v. Parker

• Decision Date: 28 February 1890
• Parties: TOWN OF LONGMONT v. PARKER.
• Court: Colorado Supreme Court

23 P. 443

14 Colo. 386

TOWN OF LONGMONT v. PARKER.

Supreme Court of Colorado

February 28, 1890

Commissioners' decision. Appeal from district court, Boulder county.

Action by Edward Parker against the town of Longmont, to recover damages for the depreciation of property by the excavation of a ditch in the highway upon which the property abutted. There was a verdict and judgment for plaintiff, and defendant appeals.

RICHMOND C., dissenting.

F. B. Secor and B. L. Carr, for appellant.

Kinne & Way, for appellee.

REED C.

Parker the appellee, plaintiff below, claimed to be the owner of a five-acre tract of land near the town of Longmont. Upon the trial, no direct proof of ownership of Parker was offered but no objection was made on account of the kind of proof offered and admitted, and the ownership will be regarded as conceded by appellant on the trial. Plaintiff had a brick house and some other improvements on his land near the west line of the lot, and resided in it. The lot abutted upon the east line of the public highway, 60 feet in width. The house was about 25 feet from the line of the road. The defendant was a municipal corporation. In the spring of 1885, some time after the occupation of plaintiff commenced, and after the erection of the house and buildings, the defendant excavated a ditch, for the purpose of supplying the town with water, in the highway in front of the residence of plaintiff, on the west side of the highway; the distance from the line of plaintiff's lot to the bank of the ditch being about 49 feet. Directly in front of the premises of plaintiff the ditch, at its greatest width, was from 14 to 17 feet, and its depth about 6 feet or more. Plaintiff's land abutted upon the highway, no part of which had been his property; the party from whom he acquired title having dedicated the land in the highway to public use previous to the sale of the land to plaintiff. Plaintiff brought this suit to recover damages to his property by the constructing and maintaining of the ditch. It is assigned for error that the court overruled the demurrer to the complaint. On examination, we do not think the grounds of demurrer well taken, or that the court erred in the judgment upon it. It is unnecessary for an understanding of the case that the pleadings be set out in full. It is sufficient to say that the issue presented for trial was whether the plaintiff's property had or had not been damaged by the excavation and existence of the ditch. The case was tried to a jury. The evidence was conflicting. Several witnesses testified to damage, varying in amount from $300 to $500; but their evidence in regard to the manner of arriving at the amount of damage and the elements of damage going to make up the aggregate was quite vague and indefinite. About an equal number of witnesses testified that in their opinion there was no damage. It was in evidence that the earth taken out in excavating the ditch was deposited in the road in front of the premises of plaintiff; a part of it had been removed by the defendant a short distance, and used in grading the road in front of plaintiff's property; and that this left the road higher in places than the adjoining land of plaintiff. The verdict was found for the plaintiff for $150, and judgment entered upon the verdict.

Considerable latitude was allowed and indulged in in the way of proof upon the trial, and some very remote and novel elements of damage introduced, but no objection appears to have been made or exceptions taken. No exception was taken and no error assigned upon the instructions given. Taken as a whole, they substantially submitted the question of damage, and the law in this state, as announced in City of Denver v. Bayer, 7 Colo.

113, 2 P. 6, where section 15 of article 2 of the state constitution (...