Venetucci v. City of Colorado Springs

• Decision Date: 30 November 1936
• Docket Number: 13638.
• Citation: 63 P.2d 462,99 Colo. 389
• Parties: VENETUCCI v. CITY OF COLORADO SPRINGS.
• Court: Colorado Supreme Court

63 P.2d 462

99 Colo. 389

VENETUCCI v. CITY OF COLORADO SPRINGS.

No. 13638.

Supreme Court of Colorado

November 30, 1936

In Department.

Error to District Court, El Paso County; John C. Young, Judge.

Suit by Nicholas Venetucci against the City of Colorado Springs. To review an adverse judgment, the plaintiff brings error.

Affirmed.

Strachan & Horn, of Colorado Springs, for plaintiff in error.

Ben S Wendelken, of Colorado Springs, for defendant in error.

BUTLER Justice.

Nicholas Venetucci sued the City of Colorado Springs for damages. He claims that a dike constructed by defendant diverted onto his property surface or flood water that, but for such dike would have gone elsewhere. The verdict and judgment went against him, and he is here seeking a reversal of the judgment.

Plaintiff's counsel argue only two assignments of error; namely: '(1) That the verdict and judgment is contrary to all of the evidence and is not supported by the evidence; and (2) that the Court erred in giving to the jury its instruction No 3.'

1. About two miles northeast of Colorado Springs is a platted area known as Papetown (marked 'Papeton' on a map in evidence). In the extreme southeast corner thereof plaintiff owns four lots on which there are two dwelling houses. The plaintiff also owns 65 acres of land lying immediately east of Papetown. About the center of the tract were an orchard and a garden of some 4 or 5 acres.

In 1932 there was a flood. The water passed through the orchard and the garden and through plaintiff's Papetown lots, destroying the orchard and removing from their foundations plaintiff's two houses. The land in the southeast part of Papetown is several feet higher than that in the center and northern parts of Papetown.

The plaintiff contends that the damage to his property was due to a dike constructed by the city; whereas the city contends that it was caused, not by the dike, but by the unprecedented volume of water that covered land that had not been affected by previous floods, and that caused damage everywhere in the vicinity of plaintiff's property greatly in excess of that caused by previous floods.

Northeast of Colorado Springs is Templeton Gap, a narrow valley running in a northeasterly and southwesterly direction. The mouth of the gap through which the water is discharged is situated at the northeast corner of the plaintiff's 65-acre tract of land, and about one-half mile east of Papetown, and some two miles northeast of the city. Normally, Templeton Gap is dry, but in times of heavy rain it carries large quantities of water, which at times 'becomes a raging torrent.' There is evidence tending to establish the following additional facts: Originally and normally, the water discharged from Templeton Gap flowed or was hurled to the west across the plaintiff's land and across Papetown. However, the natural course of the water was interfered with by certain artificial obstructions placed in Templeton Gap. The obstructions consisted of a mine dump in the north half of the channel, a mine road built across the channel, and an embankment thrown up to keep the water pumped from the mine from seeping back into the mine workings. The obstructions turned the water to the south, gradually cutting a channel in that direction and causing an everincreasing quantity of water to flow to the south into Shooks Run, a natural channel passing through the city. In 1922, during a severe flood, 25 per cent. of the water was thus diverted to the south and 75 per cent. flowed to the west. In 1927, to maintain that division of water, the city built a dike at the mouth of Templeton Gap on land owned by the city. The dike commenced a few feet northwest of the southeast bank of the gap and ran in a direction a little south of west to and across the northwest bank, and ended at the north line of plaintiff's land, thereby dividing the water so that 25 per cent. thereof would continue to flow south and 75 per cent. west, as it did during the flood of 1922.

There is some evidence tending to support the plaintiff's contention that before the erection of the dike, though a small portion of plaintiff's 65-acre tract would receive some water, it was not sufficient to damage the land, and that flood water went north of Papetown and through the northern part and the center of Papetown, but not across plaintiff's lots.

But there were witnesses who testified as follows: Between 1900 and 1903 there were two floods, and, while the water did not run through plaintiff's houses in Papetown, it was close to them. Between 1900 and...