Von Richthofen v. Bijou Irrigation District , 52 Colo. 527 ( 1911 )

Air. Justice GabbErt

delivered the opinion of the court.

The purpose of the testimony objected to, and the effect of the instruction given, was to permit the jury, in determining the damages to the residue of the land of respondent, to take into consideration the fact that petitioner had constructed the drain ditch, and that thereby seepage water which would otherwise find its way on-to the lands of respondent would be intercepted, and thus her damages on that account lessened. On this subject the trial court ruled and instructed to the effect that while petitioner was not entitled to any compensation for the construction of the drainage ditch, yet in assessing the damage to the lands of respondent, that would be caused by seepage from the intake canal, the existence of the drainage ditch and its effect in arresting or preventing seepage,, should be taken into consideration. So that, the onlysquestiofi presented for determination is, whether or not .respondent’s .damages could be lessened by a consideration of these matters. She is entitled to her damage before the title to her land is taken by petitioner, The damage which she will suffer from this seepage and the expense necessary for her to incur and continue in order to reduce such damages to the minimum, is what she is entitled to recover and receive in money. In constructing appliances with this money in order to avoid injury to her land from seepage, she is entitled to exercise her own judgment, and cannot be required to accept, in advance, the arrangements which petitioner seeks to make for her, by the construction of-an independent ditch. If, by the existence of the seepage ditch at the present time, her damages are to be lessened, there is no guarantee on the part of -the petitioner that it will be continued and maintained. If it is not, then respondent will be deprived of her land without payment of the damages in advance, which the constitution and the statutes contemplate shall be .done, as a condition precedent to depriving her of her title; for she would have naught, in so far as her damages were reduced by the consideration of the. existence of the seepage ditch and its likelihood to prevent injury to her lands, with, which to.compensate her for the expense she must incur in order to prevent damage from seepage in the event the petitioner should abandon the drain ditch, or fail to keep it in repair.

The law provides that certain benefits may be considered in assessing damages for land taken under- the Rminent Domain Act, but such benefits are those growing out of the improvement itself, and not those derived from some other independent improvement. Respondent is entitled to have the “just compensation" provided by law paid in money, and she cannot be required, in lieu thereof, to accept, in whole or in part, any benefit except she consents, which the law does not recognize-. The money she is entitled to receive as damages she may employ in any w'ay, ancl for any purpose, she may choose.- She is 'under no" obligation to use'it in constructing' -a drainage ditch'. She may do so if she chooses, but if- she does not; the petitioner cannot complain. -She may prefer to invest it in some" other enterprise rather'than in expending it'in preventing injury to her laud. And yet, should the instruction of the court be upheld, she would-be' deprived of the authority to control her own affairs and exercise her own judgment in matters of this kind.—Central Oh. R. R. Co. v. Holler, 7 Oh. St. 220; Chesapeake & Oh. R. R. Co. v. Patton, 6 W. Va. 147; Chi., M. & St. P. Ry. Co. v. Melville, 66 Ill. 329; Railroad Co. v. Halstead, 7 W. Va. 301.

But it is not necessary to discuss the subject further,because it is clear, from the decisions of this court in Burlington & C. R. Co. v. Schweikart, 10 Colo. 178, and Great Western Ry. Co. v. Ackroyd, 44 Colo. 454, that the trial court erred in admitting the testimony referred to, and in instructing the jury, as also by refusing to give the instruction requested. ' From these cases, the principle which controls the case at bar is deducible; which is to (he effect that the constitution and the Eminent Domain statute contemplate a compensation in money to One whose lands are taken under the Eminent Domain Act; that these requirements cannot be satisfied or dispensed with 'by requiring him to accept a plan, device or structure of the petitioner designed to lessen his damage, which is no part of, and entirely independent of the structure'or improvement for which the land is -taken, but that Ire is‘entitled to make such provision for Himself, and recover, as an element of his damage, what it would cost him.

' -Respondent’s damages should have been assessed without'regard to the seepage ditch.' We might acid; that -t-he'caáe -was -tried before the Opinion in-the Acñroyd-case wá'fe''handeddown:''

Decided June 5, A. D. 1911. -Rehearing denied. July 1, A. D. 1912.

.,.!...,.Counsel .for..petitioner call attention..to authorities wherein it has been held that any fact which, by reason of tire conditions upon which the property1 is' taken, or the character of the .'improvements, or'the manner in which it is¡.ma.de,.-.or-:the nature and..situation of the land taken, or-'the ¡residue, tends to-reduce the damages otherwise-ac1 crulng to the land owner,'may properly be considered in favor of the appropriator in the assessment of damage. It is .not .necessary to go into .a discussion of .this proposition, for the very obvious reason that the ditch .which petitioner contended below should be considered in assessing • damages,•■ is in no sense connected with,' Or a part of, the intake canal. '■ . '

The judgment of the-district court is reversed and the cause remanded for further proceedings in harmony with- the views expressed in this opinion.. .

Reversed and remanded'.

’■ '■ -'"Chief Justice'C’ampbeee and Mr.'Justice BaieEy concur! - ’