Ward v. Colorado Eastern R. Co.

• Decision Date: 13 May 1912
• Parties: WARD v. COLORADO EASTERN R. CO. [d]
• Court: Colorado Court of Appeals

125 P. 567

22 Colo.App. 332

WARD v. COLORADO EASTERN R. CO. ^[d]

Court of Appeals of Colorado

May 13, 1912

Appeal from District Court, City and County of Denver; Carlton M Bliss, Judge.

Action by Edward F. Ward against the Colorado Eastern Railroad Company. From an order dissolving a temporary injunction and a decree dismissing the bill, plaintiff appeals. Reversed and remanded, with directions.

John A Rush, for appellant.

Rogers Ellis & Johnson, for appellee.

CUNNINGHAM J.

In order to make as clear as possible the discussion of the points presented for consideration by this appeal, we shall first state chronologically the historical facts out of which they spring. The italics used throughout are ours.

In January, 1886, the council of the city of Denver passed an ordinance granting to the Denver Railroad &amp Land Company the right to lay and operate a single track of three feet gauge on a short section or portion of Wewatta street; the distance on said street covered by the grant being but a few blocks. Said track was to be used for general steam railway purposes. Sections 6 and 7 of said ordinance read as follows:

"Sec. 6. That the existence and duration of the privileges hereby granted is upon the condition that the tracks of said company shall be completed and that trains shall be in actual and regular use each day for the carriage of freight and passengers within six months from the date of the publication of this ordinance; that the duration of the said privileges shall only continue so long as trains are in regular use as aforesaid, otherwise this ordinance is to be null and void, and the said privileges forfeited, unless legally obstructed by adverse proceedings.

"Sec. 7. That the privileges hereby granted to said company shall not be subject to transfer or assignment either voluntarily or by operation of law, except by the consent of the city council of the city of Denver first had and obtained."

In March of the year following, 1887, an ordinance was passed by the said city council, recognizing a change of the corporate name from the "Denver Railroad & Land Company" to the "Denver Railroad, Land & Coal Company." By said ordinance of 1887 the company was also given the right to make the road standard gauge by laying a third rail and to extend the same on Wewatta street some five or six blocks farther than by the first ordinance it was permitted to do. Section 3 of the ordinance of 1887 reads as follows: "Sec. 3. That the terms and requirements of said ordinance No. 8 of the series of 1886, so far as applicable, shall apply to and constitute the term and requirements in the laying of said additional rail and in the extension of the track of said company within the city and the provisions in said ordinance as to laying the tracks in the center of the street, placing the same at grade, and the changing, elevating or lowering the same by requirement of the city council, and in general all the provisions of said ordinance No. 8 shall be held to apply specifically to the additional grant or franchise herein conferred upon said company."

At the November election in 1902, an amendment to the Constitution of this state was adopted, which amendment is known as article 20; the last paragraph of section 4 of said amendment reading as follows: "No franchise relating to any street, alley or public place of the said city and county shall be granted except upon the vote of the qualified taxpaying electors, and the question of its being granted shall be submitted to such vote upon the deposit with the treasurer of the expense (to be determined by said treasurer) of such submission by the applicant for said franchise." This amendment, by proclamation of the Governor duly issued, went into effect on or about December 1, 1902. On October 5, 1903, almost a year after the adoption of the aforesaid amendment, the city council, proceeding under the old city charter, passed an ordinance purporting to grant to defendant company a right of way or franchise over certain streets and alleys of said city and county of Denver, on which it had not theretofore claimed or been granted any privileges. This ordinance was to take effect upon the company accepting the conditions of the same, among which was one annulling the Wewatta street franchise or grant. We assume, nothing in the record to the contrary appearing, that the company accepted the conditions of the ordinance, and relinguished whatever right it possessed in virtue of the former ordinance in and to the Wewatta street grant. The right of way which the last ordinance attempted to vest in the company passed along and over a portion of Cline street in the city and county of Denver, on which is a two-story brick hotel property, in which plaintiff resided, and which he owned and operated as a hotel.

The amendment of the Constitution, referred to, provides, among other things, for the adoption of a new charter by the consolidated municipality of the city and county of Denver, which its adoption created; but the new charter had not been adopted at the time of the passage of the third ordinance above referred to. The amendment contained a provision reading as follows: "The charter and ordinances of the city of Denver as the same shall exist when this amendment takes effect, shall, for the time being only, and as far as applicable, be the charter and ordinances of the city and county of Denver." Notwithstanding the conditions in section 7 of the ordinance of 1886, forbidding the grantee or beneficiary therein named to transfer the franchise by said ordinance granted it, the corporation appears to have given a trust deed, early in 1887, which included said franchise. This trust deed was later foreclosed, and it is admitted that whatever rights appellee ever had in and to the Wewatta street grant were transferred to it by one Burke, who bought the property under the foreclosure of the trust deed aforesaid.

Although almost 20 years had elapsed between the date of the Wewatta street grants and the passage of the ordinance of 1903, no attempt appears to have been made by the company to construct a road on Wewatta street, or otherwise comply with section 6 of the ordinance of 1886. Whatever right appellee has in Cline street is dependent wholly upon the last of the three ordinances; that is, the one passed in 1903.

The plaintiff, Ward, filed his bill of complaint in the district court, alleging that the defendant company was preparing to grade and lay its tracks across Cline street, at a considerable elevation above the natural surface of said street, in the vicinity of his property, in such a manner as to intercept travel, seriously curtail his trade, and thereby greatly diminish the income which he enjoyed therefrom, and depreciate the market value of his real estate, consisting of six lots and the hotel building. He further charged that the defendant was thus proceeding in the construction of its roadbed and in the laying of its tracks without warrant, right, or authority. He asked that the defendant be enjoined and restrained from proceeding with said work. A temporary restraining order was granted. The defendant answered, asserting, among other things, its right to lay the track under the ordinance of 1903. A hearing was had, resulting in the dissolution of the temporary restraining order, and the dismissal of plaintiff's bill, from which order and decree the plaintiff prosecutes this appeal. No evidence was offered on the hearing by the defendant. The evidence produced by the plaintiff clearly established his contention that the completion of defendant's road across Cline street would result in substantial damage to his business, reducing most seriously the daily income which he derived from his hotel property, and depreciate the market value of his real estate (estimated to be $50,000) fully one-half.

1. If the ordinance of 1903 was valid, then the judgment of the trial court is manifestly correct, and plaintiff's relief is not by injunction. The validity of the ordinance turns upon the proper construction of that portion of article 20 of the Constitution which provides for the submission of all proposed franchises relating to streets and alleys to a vote of the qualified taxpaying electors.

Succinctly stated, defendant's position as to article 20 is that the power of the city and county of Denver to grant a franchise remained unchanged and unaffected by the amendment until the new charter of the city and county of Denver had been adopted and gone into effect. In other words, the amendment constituted the fundamental law of the city and county of Denver only after the taking effect of the new charter. Any other interpretation of the amendment, say counsel for the defendant, would give a retrospective effect to it, and would make of article 20 an amendment to the old and then existing charter of the city of Denver, which, by the amendment, was made the charter of the newly created municipality, as far as applicable. Plaintiff insists that by the adoption of article 20 all power and authority to grant such franchises as the one under consideration was eo instanti taken from the city council and vested in the taxpaying electors. In short, the plaintiff affirms, and the defendant denies, that the provision of the amendment pertaining to franchises was self-executing.

Article 20 of the Constitution has received the attention of the courts of review of this state upon several occasions.

In McMurray v. Wright, 19 Colo.App. 22, 73 P. 259, Thompson P.J., speaking for the court, said: "The old charter of the city of Denver, in so far as it is the charter of the city and county of Denver, is likewise to be considered in determining the extent of the council's authority....