Town of Lyons v. City of Longmont

• Decision Date: 06 January 1913
• Citation: 129 P. 198,54 Colo. 112
• Parties: TOWN OF LYONS v. CITY OF LONGMONT.
• Court: Colorado Supreme Court

129 P. 198

54 Colo. 112

TOWN OF LYONS v. CITY OF LONGMONT.

Supreme Court of Colorado, En Banc.

January 6, 1913

Error to District Court, Boulder County; James E. Garrigues, judge.

Action by the Town of Lyons against the City of Longmont. Judgment for defendant, and plaintiff brings error. Affirmed.

The town of Lyons and the city of Longmont are located on the St Vrain, the former near the point where the stream emerges from the foothills, and the latter about nine miles below. The city of Longmont commenced an action against the town of Lyons and a number of private owners of property in the town to condemn a right of way for a pipe line to carry water for domestic and other uses and purposes for the inhabitants of the city through and under certain streets and alleys of the town, and also through certain parcels of land owned by the individual property owners. The water supply for this system is taken from the north fork of the St. Vrain some distance above the town of Lyons. It is not necessary to notice in detail the averments of the petition filed by the city, as its sufficiency is not challenged, if the city has the right to condemn a right of way for its pipe line through the streets of the town of Lyons. To the petition the respondents filed their joint and several demurrers on the ground that the court was without jurisdiction of the proceedings or to grant possession of the premises described in the petition and generally that the petition did not state facts sufficient to constitute a cause of action. This demurrer was overruled. The city then applied for an order granting it possession of the premises described in its petition to enable it to proceed with the construction of its pipe line which was granted. Thereafter, for the purpose of saving time and expense to the parties, and in order to hasten the disposition of the case, a stipulation of facts was entered into between the parties, by which it was agreed that an answer need not be filed by respondents, and that the case should be considered at issue, without any further plea; that a board of commissioners need not be appointed, nor jury summoned; that the findings of the court should be as valid and effective as if a board of commissioners had been appointed and returned their report and appraisement; that the value of the land or property actually taken was $1 for each tract or parcel; that there were no damages to the residue, and no benefits to any of the land of respondents not taken. It was further stipulated that the route described in the petition through the town of Lyons from petitioner's intake dam is the most practicable feasible, and least expensive route, and that, if a line was constructed which did not pass through the town of Lyons, it would involve a greatly increased cost and engineering questions of getting the line over hills and cliffs which are not involved in the line going through the town of Lyons that the town of Lyons lies between the diversion or intake dam of the city of Longmont, and the corporate limits of the latter, and that the pipe line did not pass through cultivated or improved land in the town of Lyons, and that no building or improvement was interfered with or damaged. It was also stipulated, as alleged in the petition, that the line was to be a 'flow line'--that is, a pipe line in which the water flowed by gravity, and not by pressure--and that the line through Lyons should be, and was, a concrete and steel pipe, laid several feet below the surface, with every joint cemented or leaded, and fitted so closely together that water would or could not leak from the line; and that the city, as stated in its petition, only sought to obtain the right of way through the town of Lyons for the purpose of conducting water through its pipe line, subject to all reasonable rules and regulations which then existed or might thereafter be enacted by the town with respect to the laying and maintenance of the line within its boundaries.

The line had been laid through the town before the cause was tried. At the trial it appeared without dispute that the pipe had been laid through the town of Lyons at a depth of from four to ten feet; that no improvements of the town had been interfered with; that the water line of the town of Lyons had been crossed twice, Longmont's pipe going underneath; and that the pipe had been laid through the town with extra care and expense so as to make it absolutely safe, the line having been surrounded with concrete, so that it would never break, no matter how heavy the travel over the streets might be. It appears, from the stipulation of the parties and the testimony, that the use of the streets by the town of Lyons, through which the pipe line passes, is not in any manner interfered with.

On these facts the court entered judgment awarding the city of Longmont a right of way over, upon, and through the parcels of land and streets mentioned in its petition for its pipe line for the conveyance of water to its waterworks system and that upon payment of the damages, as fixed by the stipulation of the parties, the city of Longmont should become seised in fee of the right of way through such streets and...