Watson v. City of Ft. Collins

• Decision Date: 30 September 1929
• Docket Number: 12138.
• Citation: 281 P. 355,86 Colo. 305
• Parties: WATSON et al. v. CITY OF FT. COLLINS et al.
• Court: Colorado Supreme Court

281 P. 355

86 Colo. 305

WATSON et al. v. CITY OF FT. COLLINS et al.

No. 12138.

Supreme Court of Colorado, En Banc.

September 30, 1929

Rehearing Denied Oct. 21, 1929.

Error to District Court, Larimer County; Claude C. Coffin, Judge.

Action by J. B. Watson and others against City of Ft. Collins and others. Judgment for defendants, and plaintiffs bring error.

Reversed and remanded, with instructions.

Fred W. Stow and Herbert A. Alpert, both of Ft Collins, for plaintiffs in error.

Neil F Graham, of Ft. Collins, for defendants in error.

CAMPBELL J.

The defendant city of Ft. Collins was originally a municipal corporation formed under our general municipal corporation statute. It is now what is commonly known in this state as a 'home rule city.' It operates under a special charter, by the choice of its inhabitants, who elected to function as a municipality under the twentieth amendment to the state Constitution, which, among other things, confers upon municipalities that are organized thereunder, and which have adopted such a charter, every power possessed by our General Assembly in granting charters generally. Newton v Ft. Collins, 78 Colo. 380, 241 P. 1114. Acting under this special charter, so authorizing the city created an improvement district and authorized the concrete paving of certain streets therein, including Whedbee street.

The plaintiff Watson and his coplaintiffs are the owners of city lots fronting on that part of Whedbee street on which was constructed, and which is now occupied by, the tracks and equipment of the municipal street railway, the property of the city which was acquired before the creating ordinance was enacted. The city now operates this system as a carrier of passengers for hire. The cost of paving this strip occupied by the street railway, about 9 feet in width, in the center of Whedbee street, was assessed by the city against and upon the plaintiffs and their respective abutting properties, in an amount based upon the frontage of their lots, and an additional sum amounting to the cost of paving this central strip occupied by the street railway 9 feet wide and at street intersections. There is no complaint here by the plaintiffs that the amount of the assessment on a frontage basis is improper, but their grievance is that, inasmuch as the amount of such assessment is limited by the special benefits which the abutting owners receive by reason of the improvement, an additional amount, equal to the costs of paving this strip occupied by the city's municipal street railway, is unlawful, because such benefit accrues to its owner, and not to plaintiffs.

The city charter provides that the procedure and regulations respecting public improvements and the amount of costs thereof are within the power of the city council. It also provides that the laws of the state of Colorado in force at the time the charter goes into effect, in relation to cities of the second class, shall apply to Ft. Collins in all respects, except as to certain matters that are not here important. Section 1 of the pertinent general ordinance of 1921, which relates to improvement districts, provides that the city council may order local improvements, like street paving, and may assess the costs wholly or in part upon the properties especially benefited. Section 7 of this ordinance provides that the cost of a street improvement, except as otherwise provided in the ordinance itself, and except at the intersection of streets and alleys, and the share to be paid by street and other railway companies, shall be assessed upon the lots and lands abutting on the street improved in proportion as the frontage of each lot or tract of land is to the frontage of all the lots and lands so improved.

Upon the completion of any local improvement and acceptance of the same by the city council, the city engineer is required to prepare a statement showing the whole cost of the improvement. Thereupon the city clerk, by advertisement for 10 days in some official newspaper published in the city, must notify the owners of the real estate to be assessed and all persons interested generally, that the improvements have been completed and accepted, and this notice must specify the whole cost of the improvement and the share so apportioned to each lot or tract of land or person, and that any complaint or objection that may be made in writing by the persons interested must be filed with the city clerk within 30 days from the first publication of the notice, and the same will be heard and determined by the city council at its first regular meeting after the expiration of the 30 days before the passage of any ordinance assessing the cost of the improvement. Another section provides that after the time designated the city council shall sit as a board of equalization, and hear and determine all such complaints and objections, and may confirm the apportionment or make modifications which seem equitable and just.

The parties are in accord that the main and controlling issues in this case are, and the argument is confined solely to them: First. Did the plaintiffs in error make their written objection and protest to the assessment in ample time? Second. Should the plaintiffs in error, being abutting property owners, be relieved from that portion of the assessment against their property made on account of the paving of the 9-foot strip occupied by the street railway, and at street intersections? These in their order.

The city council caused to be published in April 1927, a preliminary notice by the city clerk, addressed to the owners of property to be assessed for this improvement, that the city council would at a stated time and place consider the ordering or creating by ordinance of the proposed district, and would then hear all complaints or objections that might be made in writing concerning the same by the owners of the property to be assessed, or by any person interested. No complaint or objection was made by the plaintiffs in error in this action, or by any other person, and thereupon the city proceeded to, and did, create the improvement district. Thereafter the city proceeded to pave the street in question, and after completion of the same, and in January, 1928, caused another notice to be published by the city clerk, which...