Opinion
No. 16,537.
Decided October 30, 1950.
An original proceeding in the nature of prohibition to require defendants to show cause why a certain case pending in the district court of the City and County of Denver should not be dismissed on the ground that the court "was without jurisdiction to proceed therewith." The order to show cause was vacated and the writ discharged.
1. EMINENT DOMAIN — Statutes. Under pertinent statutes where the right to take private property for public or private use without the owner's consent is conferred by law, and the compensation to be paid for the property cannot be agreed upon by the parties interested, "it shall be lawful for the party authorized to take or damage the property so required."
2. Jurisdiction — Appeal and Error. In an eminent domain proceeding, it is held, under the presented circumstances, that the trial court did not exceed its justification nor abuse its discretion in entertaining the action.
Original Proceeding.
Messrs. DICKERSON, MORRISSEY ZARLENGO, Mr. ALBERT E. SHERLOCK, Mr. ALBERT T. FRANTZ, Mr. MILTON BERGER, Mr. DARWIN D. COIT, Mr. GEORGE A. CROWDER, Mr. RICHARD DOWNING, Mr. FRED M. WINNER, Mr. CHARLES A. MURDOCK, for plaintiffs.
Mr. J. GLENN DONALDSON, Mr. ABE L. HOFFMAN, Mr. GILBERT GOLDSTEIN, for defendants.
THIS is an original proceeding in the nature of prohibition brought pursuant of Rule 106, R.C.P. Colo. to require defendants to show cause why a certain action, No. A71032, entitled "The Housing Authority of the City and County of Denver, a Municipal corporation, vs. Florence M. Ames, Old Timers Baseball Association, a Colorado Corporation, et al.," pending in the district court of the City and County of Denver, should not dismisses for the reason, as alleged, that, said district court was without jurisdiction to proceed therewith. The district court action, to which reference is made, is one brought by the Housing Authority to condemn certain unplatted land statute in section 9, township 4 south, range 68 west, of the 6th P.M., City and County of Denver, for the purpose of constructing thereon a housing project. In accordance with the prayer of the complaint filed herein, an order was entered July 24, 1950, requiring that the Housing Authority the District Judge, show cause why they should not be prohibited from conducting further proceedings in said action. The material portion of said order is as follows:
"Wherefore, defendants are directed pursuant to order of court, within twenty days of the date hereof, to show cause why they should not be prohibited from conducting further proceeding in Civil Action No. A-71032 in the District Court of the Second Judicial District, which case is entitled 'The Housing Authority of the City and County of Denver, a Municipal corporation, petitioner, vs. Florence M. Ames, et al., respondents'; and defendants shall cause to be certified to this Court a transcript of all proceedings, including a transcript of all testimony, in said case No. A-71032, within said twenty day period; and defendant Alfred A. Arraj, as said Judge, shall stay all further proceedings in said case No. A-71032, pending a complete determination of the issue before this Court."
Thereafter in compliance with the writ and on September 11, 1950, defendants filed "Return on Order to Show Cause," to which plaintiffs, after leave, filed their reply.
Rule 106, R.C.P. Colo., provides inter alia, that our review of a trial court's proceedings "shall not be extended further than to determine whether the inferior tribunal has exceeded its jurisdiction or abused its discretion."
The gist of the contention of plaintiffs generally is, that the trial court did not have jurisdiction of the case, in that Housing Authority did not, prior to the institution of its condemnation proceeding, negotiate with plaintiffs in an effort to reach an agreement upon compensation to be paid for the property sought to be condemned. Specifically it was alleged in the complaint filed in this court:
"Commencing June 26, 1950, a hearing on the demand for immediate possession was held before defendant, Alfred A. Arraj, as District Judge sitting specially in the District Court of the Second Judicial District, in which hearing the evidence presented by The Denver Housing Authority conclusively demonstrated that the District Court of the Second Judicial District was without jurisdiction to hear the case or to award immediate possession all as is more fully hereinafter set forth. * * *"
"In the condemnation suit in the District Court, the evidence of The Denver Housing Authority affirmatively and conclusively showed that The Denver Housing Authority had at no time made any offer to purchase the property sought to be condemned and that there was not at any time a good faith effort made by The Denver Housing Authority to agree with plaintiffs on the value of the property sought to condemned; nor was there any good faith negotiation by The Denver Housing Authority to authority to buy the property at a fair price from Old Timers baseball Association of Colorado or from Old Timers West-bar-Val-Wood Park, Inc., * * *.
"* * * that no offer to purchase was at any time made to plaintiffs by anyone.
* * *
"* * * it affirmatively appears from the record that the condemnation action seeking to seize plaintiffs, land was arbitrarily and illegally instituted without any offer for the purchase of said land having been made and even without the highest offer the bare option having been made.
* * *
"* * * that the jurisdictional requirement of a good faith attempts to agree upon the value of the property sought to be taken was disregarded.
* * *
"The Denver Housing Authority presented no evidence of any offer to the Old Timers except offer of the witness Hyman to obtain a mere option for $1.00 consideration buy the land at a price below his actual authority and far below the price known to The Denver Housing Authority to be fair."
The complaint for the writ in prohibition was verified by William A. Black, as follows:
"State of Colorado, ) ) ss. City and county of Denver )
"William A. Black, of lawful age, being first duly sworn, on oath deposes and say: "(a) That he is the president of plaintiff, Old Timers Baseball Association of Colorado, a Colorado corporation. (b) That he is a director of plaintiff Old Timers West-bar-Val-Wood, Park, Inc., a Colorado corporation. (c) That he had read the foregoing complaint and knows its contents and that the matters therein set forth are true to the best of his knowledge, information and belief.
"William A. Black
"Subscribed and sworn to before me this 14th day of July 1950.
"My commission expires October 14, 1953. "Elizabeth E. Long Notary Public."
[1, 2] The above contention of plaintiff is based upon (1) The provisions of section 2, chapter 61, '35 C.S.A.; and, (2) upon our interpretation thereof Mulford v. Farmers Reservoir Irrigation Company, 62 Colo. 167, 161 Pac. 301. The above statute provides: "In all cases where the right to take private property for public or private use without the owners' consent * * * has been heretofore or shall hereafter be conferred by general laws or special charter * * * and the compensation to be paid for in respect of the property sought to be appropriated or damaged for the purposes above mentioned cannot be agreed upon by the parties interested, * * * it shall be lawful for the party authorized, to take or damage the property so required * * *."
In constructing the above statute, we said in Mulford v. Farmer Reservoir Irrigation Company, supra. "It is apparent from these express provisions of the statute that failure to agree upon compensation to be paid for land sought to be taken or damaged is made a condition precedent to the right to institute and maintain proceedings thereunder at all, and is clearly jurisdictional, * * *."
Attached to the defendants' return on order to show cause, is transcript of the proceedings in the district court, comprising two voluminous typewritten volumes, which we were required to examine to ascertain whether or not negotiations were in fact carried on in an effort to reach an agreement as to the value of the property, and whether or not the parties were unable to agree upon whether or not the parties were unable to agree upon the amount of such compensation. The trial court, in denying plaintiffs motion to dismiss the condemnation proceedings, found that there was sufficient evidence to establish that Housing Authority had fully complied with the requirements of the above statute had decision prior to the institution of the condemnation proceedings. If there is any evidence in the record to sustain the action of the trial court we are concluded thereby and are required to find that it did not exceed its jurisdiction or abuse its discretion.
The testimony shows that the Housing Authority employed two appraisers who fixed the value of the two parcels belonging to the Old Timers Baseball Association at $15,100; that two parties were employed to negotiate with the various owners, including the Old Timers operation, in an effort to arrive at the value of the property; that Judge Black, president of the Old Timers, was called upon by one of negotiators whose showed him a map of the project which indicated thereon the amount the Housing Authority Was willing to pay for each parcel involved, to wit: $13,500 for one, and $2100 for the other, that the offer was refused; and the negotiator was informed that the property was not for sale and that the association was not interested in selling the land; that the negotiations between Judge Black and the representative of the Housing Authority took place some time prior to the commencement of the condemnation action May 31, 1950; and that there was no substantial variance between the testimony of the representatives of the authority and Judge Black with respect to the above testimony.
At the hearing before the trial court on June 26, 1950, Judge Black testified in apart as follows: "Q. Did he [Hyman, the Housing Authority Negotiator] make any offer at the time or ask for any option? A. Well, this plat had the figures on it $15,100, and that was the price that he said he was authorized to pay for it. Q. Did he say that he was authorized to pay or that he was seeking an option at that price? A. He didn't mention an option. * * *
* * *
"Q. Judge Black, you testified that the price mentioned by Mr. Hyman $15,000 was ridiculously low, I believe he stated. A. That is right.
* * *
Q. When you told Hyman that the price was too low, what did he say about it? A. He said that the only figure he had was the figure contained on the plat, which was $13,000 for the ten acres and $2100 for this other strip which he said amounts to three acres. I didn't measure it."
Judge Black had previously testified: I asked him [Mr. Gail, manager of the Housing Authority] for the plat, and he stated that I could have the plat, but he wanted it back, I think he said shortly before the first of the month. I called a meeting of the Board of Directors and I submitted a photostatic copy of this map which he gave me, * * *. And I presented this plat to the Board of Directors, together with the price which they had offered us. We discussed the matter. * * * and we considered that the price was unreasonable, in view of the present market and the use for which we wanted it, * * * and so I just left the matter that way until I believe Mr. Human came back in and had a conversation with me about, 'Do you want to sell the property?' And I told him that the property was not for sale."
On cross-examination Judge Black further testified: "Q. You did however, testify that you took this matter of $15,100 up with the Board of Directors of the Old Timers Baseball Association of Colorado? A. I certainly did. Q And you did testified that the said Board of Directors decided that the property was not for sale? A. It wasn't for sale at that price because we couldn't buy a site comparable to that for anywhere near that figure."
In the answer of the Old Timers Association in the trial court to the petition in condemnation, it is alleged:
"Replying further thereto, these respondents admit that they cannot agree with the petitioner on the amount of compensation to be paid for the property in question for the reason that said property was dedicated to the youth of America for a recreational park on April 12, 1946. * * *"
In the face of the above admission and the sworn testimony of Judge Black at the hearing, it is difficult to understand the basis for the statement in the complaint filed in this proceeding that no effort had been made by the housing Authority to agree upon the proper compensation to be paid for the parcels to be condemned prior to the commencement of the condemnation action.
We conclude that the trial court did not exceed its jurisdiction nor abuse its discretion.
The order to show cause is vacated and the writ discharged.