Whitehead v. City of Denver

• Decision Date: 13 March 1899
• Citation: 13 Colo.App. 134,56 P. 913
• Parties: WHITEHEAD et al. v. CITY OF DENVER.
• Court: Colorado Court of Appeals

56 P. 913

13 Colo.App. 134

WHITEHEAD et al. v. CITY OF DENVER.

Court of Appeals of Colorado

March 13, 1899

Appeal from district court, Arapahoe county.

Condemnation proceeding by the city of Denver against Andrew Whitehead and others. There was a judgment for complainant, and defendants appeal. Reversed.

Wells &amp Taylor, for appellants.

George C. Norris, Emerson J. Short, and F.A. Williams, for appellee.

BISSELL, J.

A petition in the name of the city of Denver was presented which sought the condemnation of certain lands for park purposes outside the corporate limits. Alfred H. and George T. Miles were named as defendants, though the petition averred that Alfred H. Miles appeared by the record to be the owner in fee, and George T. Miles, Andrew Whitehead, and Edwin K. Whitehead claimed or appeared to have some claim or interest, legal or equitable, in and to the property. The principal question concerns the status of the petition, and raises the inquiry whether it was filed by the city, or in its behalf by persons authorized to initiate such proceedings. The premise on which the opinion must rest is that the powers of municipalities are matters of direct grant from the legislature, and whatever powers this limited sovereignty seeks to exercise must either be found within the terms of the grant, or must be necessarily incident or requisite to the exercise of the authority conferred.

At or before the appearance day, the Whiteheads filed a pleading in the form of an answer, taking issue on some matters of fact set up in the petition, and suggesting the defensive facts on which they disputed the authority of the city to condemn the land. The city filed a motion to strike this answer from the files, which was sustained, and on this order which struck their answer the Whiteheads predicate error. They insist that under the present practice, and the statute relating to condemnation, as amended in 1889, they had a right to file an answer and present an issue, and on the petition and answer have the hearing and introduce their testimony. The answer is that it has been decided by the supreme court that no answer is either requisite or permissible; the proceedings being both initiated, continued, and concluded on the petition and the proof which the parties in interest may respectively offer. This position is supported by Railroad Co. v Griffith, 17 Colo. 598, 31 P. 171. In examining the matter of practice in these proceedings, that court considered the statute regulating them, and undoubtedly held that there was no provision in the statute as it then stood for written pleadings, other than the petition. As they construed the act, it contemplates that the cause shall be heard alone on the petition; it being taken as denied, and both parties being at liberty to produce such proof as they may be able in support of, or in opposition to, the application. The act, however, was subsequently amended. Sess.Laws 1889, p. 156. By this act, section 7 of the act of 1877 was amended; and, as amended, it provides "that any party to any proceeding brought under the provisions of this act, before the appointment of commissioners *** and before the expiration of the time for the defendant to appear and answer. ***" The phraseology of this amendatory provision undoubtedly contemplates the filing of an answer within the time provided for the defendant's appearance. The right conferred is one to demand a jury to ascertain the damages. The amendatory section provides that "demand may be made in the pleadings, or by a separate writing filed with the clerk." This statute would seem to be sufficiently broad to justify the defendant to file an answer, and we are quite of the opinion that, had this statute been then in force, the supreme court might have concluded, not necessarily that an answer was requisite, but at least that it was permissible and that it would not have been error for the court to permit one to be filed. Notwithstanding this, we do not believe the action of the court in striking it out is, of necessity, an error which would disturb the judgment. The answer being stricken out, the case was triable on the petition; and the defendant still had the right, which was accorded to him by the court, to introduce whatever evidence he had in opposition to the proceeding. In the present case, the answer was permitted to stand as an affidavit; and the court proceeded to hear, not exactly the issues, but the application, and, on the testimony which both sides offered, to determine the propriety of the condemnation. We do not in any wise intend to criticise the opinion of the supreme court in 17 Colo. and 31 Pac., but believe that the amendatory act contains a sufficiently full and broad indication of the legislative purpose to warrant the defendant to file an answer. We do not conclude, however, that a failure on the part of the defendant to file one would entitle the petitioner to a judgment as of default, or preclude the defendant from introducing his proof, if he failed to file one. In other words, there is no distinct and specific direction that the defendant shall tender an answer; and, in the absence of any such definite direction, whether the court permits one to be filed, or strikes one out that has been filed, it would not affect the substantial rights and interests of the defendants or claimants to such an extent as to compel us to overturn any judgment which the court might enter.

The next proposition on which the appellants rely, and in which we concur in general with their views, is that, to authorize proceedings in condemnation by the city, the city council, as such, must authorize and institute the proceedings. There have been of late years some very broad and marked changes in the charter under which the city of Denver acts. It has always been a city acting under a special charter which has from time to time been amended, but, as it now stands, it seems to be a tolerably complete system of municipal government. The acts relating to it are found in the Session Laws of 1893, amended by the acts of 1895 and 1897. We shall make no reference to the volumes of the Session Laws, since we have before us a copy of the charter of...