Albi Mercantile Co. v. City & County of Denver

Mr. Justice Gabbert delivered the opinion of the court: The complaint appears to be framed entirely upon the theory that the portion of the street in front of plaintiff’s premises was vacated or abandoned; that for this reason the fee of the ground in front of its premises to the centre of the street reverted to it, and the approach is, therefore, being constructed upon its land, without provision having been made for compensating it for the value of the land taken, and resulting damages. This theory is not tenable. If the street was vacated as claimed, the purpose of so doing was to comply with the charter provision requiring the city authorities to provide for the vacation of the portion of ’the street over and along which the approach would be constructed. This, however, did not vest plaintiff with the fee of the street, as claimed, for the reason that, according to the express provision of the charter the fee of the street, nevertheless, remained in the city; so that it is evident property belonging to the plaintiff would not be taken by the construction of the approach. The erection of this structure may have so impaired its ingress and egress as to entitle it to compensation for the injuries thus occasioned, but this right does not entitle it to an injunction under the averments of its complaint restraining the construction of the approach until such compensation has been paid. This proposition is so well settled in this jurisdiction that further discussion of it is unnecessary. In brief, where the fee of an abutting lot owner is not sought to be taken, he cannot, [478] Under the constitution or under the statute of eminent domain, enjoin the construction of a viaduct or its approach on a street in front of his lot merely because the damages to his premises thus occasioned are not compensated in advance, provided the structure is being erected under proper legislative and municipal authority —Denver & S. F. R. Co. v. Domke, 11 Colo. 247; Denver, U. & P. Ry. Co. v. Barsloux, 15 Colo. 290; Haskell v. Denver Tramway Co., 23 Colo. 60. As was said in the case last cited, the plaintiff has mistaken its remedy. The above cases, it is true, relate to the construction of railroad and street-car tracks, but the principal upon which they were decided is identical with the one applicable to the case at bar. The city has the unquestioned right to construct viaducts, or provide for their construction and approaches thereto. This is a lawful exercise of its authority which will not be interfered with by injunction, although property owners abutting a street upon which a viaduct or approach is constructed may have a right of action for damages. The judgment of the district court is affirmed. Judgment affirmed... Chief Justice Musser and Mr. Justice Hill concur.