Sorensen v. Town of Greeley

Stallcup, C. Accepting all the facts admitted in evidence, as well as' those excluded and rejected, the plaintiff is without right of recovery against the defendant, the town of Greeley, for the reason that the acts which stopped the flow of water by the way it was going to plaintiff’s lots were the acts of the IT. P. R’y Co., in the construction of a bridge upon its own premises. It is difficult to see any force in the facts shown by the ordinance of September 5, 1881, as it was passed long after the occurrence complained of, and purports to vacate a portion of Jefferson avenue, and to grant the right to the Greeley, Salt Lake & Pacific Railway Company to lay railway tracks thereon; while, from the evidence, it appears that a portion of this avenue was already occupied by the railway of, the U. P. R’y Co., and that plaintiff’s flume passed under this same railway, at a point on this [374] same Jefferson avenue; that the destruction of the flume was caused by the workmen and employees of the said U. P. R’y Co. in raising this same railway, excavating and constructing a bridge thereunder at this point. As to the other ordinance of July 20, 1881, it simply vacated a portion of certain streets lying east of this railway, and granted to Bruce Johnson the right to occupy the said portions so vacated with the said canal. It is nowhere shown or claimed that the town pretended to grant the right to occupy with the canal the ground' occupied by the said railway of the U. P. R’y Co. and flume of the plaintiff. That Bruce Johnson had any right from the said railway company, or any other source, to cross the said railway with the said canal, at this or any other point, does not appear. It would seem that such right would have to come from the railway company, and it appears that the railway company did assent to the same by adjusting its railway to and in excavating for the canal thereunder. There was ample water in the old canal during all this time, so that in this respect the town discharged its duty. In no view of the case can the town be held liable for the injury resulting from such disturbance of the flume and lateral of the plaintiff. The granting of a right of way on a street for a railway by a municipality does not create a liability against the municipality for the damages occasioned by the corporation exercising the rights so granted. The liability in such cases is against the corporation exercising and enjoying such rights. City of Denver v. Bayer, 7 Colo. 113. The judgment should be affirmed! We concur: Macon, C.; Rising, 0. By the Court. For the reasons assigned in the foregoing opinion the judgment is affirmed. Affirmed.