Union P. R. Co. v. Colorado Postal Tel. Cable Co.

• Decision Date: 07 April 1902
• Citation: 69 P. 564,30 Colo. 133
• Parties: UNION PAC. R. CO. v. COLORADO POSTAL TEL. CABLE CO.
• Court: Colorado Supreme Court

69 P. 564

30 Colo. 133

UNION PAC. R. CO. v. COLORADO POSTAL TEL. CABLE CO.

Supreme Court of Colorado

April 7, 1902

Error to district court, Arapahoe county.

Action by the Colorado Postal Telegraph Cable Company against the Union Pacific Railroad Company to condemn land for right of way. From a judgment for petitioner, respondent brings error. Affirmed.

Teller & Dorsey, for plaintiff in error.

Benedict & Phelps, for defendant in error.

GABBERT J.

Defendant in error, as petitioner, instituted an action in the court below against plaintiff in error, as respondent, to condemn a right of way longitudinally through the lands of the latter upon which to erect and maintain a telegraph line. Such proceedings were had that commissioners were appointed without objection from either party, who heard the testimony and reported to the court. This report was adopted, and a judgment and decree rendered accordingly. To review the proceedings, respondent brings the case here on error.

Some of the errors assigned are predicated upon the matters incorporated in what is termed a bill of exceptions, which petitioner contends cannot be considered. To test this question, its counsel move to strike the bill of exceptions from the files. We shall not determine this motion, for assuming that the matters in the bill upon which error is based by counsel for respondent are thereby properly presented, we are satisfied that the errors assigned upon what is thus disclosed are insufficient to work a reversal. For answer respondent alleged that petitioner is a corporation organized to take property for the use of a foreign corporation, so as to enable the latter to evade the laws of this state, and that there extended along and adjacent to the lands of respondent, through which petitioner was seeking to condemn a right of way, a public road, upon which petitioner is authorized, under the laws of the state to construct its proposed telegraph line. After the appointment and qualification of the commissioners, and before proceeding to hear the testimony, counsel for respondent requested certain instructions, which were refused. At the request of counsel for petitioner, others were given. Those requested by respondent and refused were to the effect that a corporation cannot take land by the exercise of the right of eminent domain except for a public use, and then only when a necessity exists for the land so sought to be taken; and that the necessity meant by the statute is not established by proof that such land is convenient for the purposes for which it is intended to be used, or will lessen the cost of constructing the structures which the petitioner proposes to erect thereon. Inter alia, the court instructed the commissioners, in substance, that, in the absence of bad faith or improper motives on the part of petitioner, it had the right to determine the route and location of its line of telegraph; and if its proper officers in good faith had determined to build such line, and had selected the right of way in question upon which to construct it, then the necessity mentioned in the statute is established. At the hearing before the commissioners, petitioner introduced its articles of incorporation, from which it appears that the objects for which it is incorporated are the construction, acquisition by purchase or otherwise, maintenance, and operation of telegraph lines in the state of Colorado, and the sale or other disposition of such lines. Respondent offered to prove that these articles of incorporation were drawn and executed at the request of the Postal Telegraph Cable Company of New York; that no stock had ever been subscribed and paid for, except sufficient to authorize the qualification of directors; that it was not expected the latter would raise any money by subscription to stock or otherwise; that all money would be furnished by the New York company; and that both directors and officers of petitioner would be under the direction and control of that company. Respondent also offered to prove the existence of a highway along, adjacent, and near to respondent's right of way for the whole distance, upon which a telegraph line could easily and cheaply be constructed. It also offered to prove that the petitioner had not obtained leave from the corporate authorities of certain towns through which the proposed line of telegraph must be constructed in utilizing the right of way sought to be condemned to construct its line through such town. These offers were refused. On the filing of the report the respondent moved to dismiss the proceedings because no proofs had been offered by the petitioner tending to prove the necessity for taking the right of way in question, which motion was denied.

Counsel for respondent contend that these several matters present prejudicial error, for the reason that petitioner had failed to prove that the property sought to be condemned was to be taken for a public use, or that there was any necessity for taking it. It is also urged that, in view of the issues made by the pleadings, the respondent had the right to introduce at the hearing before the commissioners the testimony refused, for the reason that such testimony tended to establish a state of facts from which it would appear the taking of the land in question was for a private, and not a public, use, and that there was no necessity for such taking. These matters might well be disposed of upon the ground that the law does not contemplate that commissioners in condemnation proceedings shall consider or determine such questions. On the contrary, they are to be determined by the court or judge, but, unless so presented for determination before the appointment of commissioners, or the right to do so is in some way reserved, they are waived. Section 1720, 1 Mills' Ann. St., provides that the court or judge may appoint a board of commissioners to ascertain the necessity for taking lands sought to be condemned. What propositions may be raised upon the question of necessity will vary according to the circumstances of each particular case. In this instance, however, so far as disclosed by the pleadings, or any matter discussed in the briefs, we are of the opinion that the authority of the commissioners on that question would be limited to a determination of the one of quantity of land, or, more accurately speaking, the width of the proposed right of way sufficient to serve the reasonable physical needs of petitioner in erecting and maintaining its telegraph line. Ordinarily, the authority of commissioners on the subject is so limited. In effect, this court has so decided in the recent case of Gibson v. Cann (Colo. Sup.) 66 P. 879. It was certainly never intended that commissioners should be required to determine questions the solution of which depends upon the application of intricate questions of law such as would be presented by the trial of issues tendered by the answer of respondent. This court has frequently decided, in cases where the question of damages in condemnation proceedings was submitted to a jury, that the only matter proper for the jury to consider was the one of damages, and that all other questions must be settled in limine. Irrigation Co. v. Davis, 17 Colo. 326, 29 P. 742; Thompson v. Reservoir Co., 25 Colo. 243, 53 P. 507; Siedler v. Seely, 8 Colo.App. 499, 46 P. 848; Colorado Fuel & Iron Co. v. Four Mile R. Co., 29 Colo. 90, 66 P. 902. On principle the same rule is applicable to the case at bar. The commissioners were appointed without objection on the part of respondent. There was no attempt upon its part to submit to the court the determination of any of the questions of fact upon which it relied to defeat the proceeding until after the report was filed. Respondent did not seek to prove that petitioner did not require the quantity of land sought to be condemned, nor by its pleadings was any such defense suggested. None of the matters above mentioned which respondent sought to submit to the commissioners were of a character which it was the province of that body to determine; and by the course pursued the right to have them determined by the court was waived. The reason for this conclusion is obvious. If, for any reason, the petitioner in condemnation proceedings is not entitled to exercise the right of eminent domain, or take a particular tract, these questions should be determined by the court in limine. If adverse to the petitioner, that is the end of the proceeding. Irrigation Co. v. Davis, supra. In this connection we call attention to the case last cited. In that case the petitioner sought to have a right of way condemned through an already-existing ditch. It was held that, if the respondent desired to have the question of the feasibility and practicability of taking a right of way through such ditch determined, the question should have been referred to a board of commissioners appointed by the court, as the law directs. This holding, however, was based upon the provisions of sections 2261, 2262, 1 Mills' Ann. St., which provide that lands improved or occupied shall not, without the written consent of the owner, be subjected to the burden of more than one irrigating ditch constructed for the purpose of conveying water through such property to lands adjoining or beyond, when the object can be feasibly and practicably attained by uniting and conveying all the water necessary through such property in one ditch; and that, where it is necessary to convey water for the purposes of irrigation through the improved or occupied lands of another, the shortest and most direct route practicable upon which such ditch can be constructed shall be selected. These provisions, however, have no application to the case at bar. Neither were they invoked in Gibson v. Cann, ...