City of Goldfield v. Golden Cycle Gold Mining Co.

Gabbert, C. J., delivered the opinion of the court: The constitution inhibits the general assembly from passing laws vacating streets. Sec. 25, art. V. The power to vacate streets may, however, be delegated to municipal corporations, but this power cannot be exercised arbitrarily, and without regard to the rights and necessities of the public. Whitsett v. Union D. & R. Co., 10 Colo. 243, 15 Pac. 339. The acts of the general assembly under which the vacation deed was executed permit a street to be arbitrarily vacated by private parties, without regard to the interest or convenience of the public, or of individual rights. Public streets are for the use of the public, and if officials of a municipal corporation, who, by virtue of their control over streets have the power to determine’when they may be vacated without injury to the public, cannot exercise this power in an arbitrary manner, it follows as of course that the General Assembly is without authority to confer upon private individuals the power to arbitrarily vacate a street.' The facts of this case demonstrate the necessity for this conclusion. Main Street is one of the principal streets of the city. Its use is necessary for the convenience of the public. Underneath the surface of that portion of it embraced within the vacation deed the city has laid and maintained a water main which is used for supplying the inhabitants of [224] the city with water. If the deed is valid the city may be greatly hindered in repairing or maintaining the water main included in the part of Main Street attempted to be vacated, or may be compelled to construct such part of the main through other territory. In other words, if the vacation deed is upheld a part of Main Street is arbitrarily vacated without regard to the interest and convenience of the public or the rights of the city. In our opinion private individuals cannot be clothed with authority to exercise such an arbitrary power, and the vacation deed is therefore a nullity. The judgment of the District Court is reversed and the cause remanded for further proceedings in harmony with the views expressed in this opinion. Judgment reversed. Decision en banc. Scott, J., not participating.