Deepe v. United States , 103 Colo. 294 ( 1938 )

THE plaintiff in error Deepe filed a cross-petition in certain condemnation proceedings pending in the district court of Arapahoe county. The court's action in striking the cross-petition from the files is now before us for review.

The condemnation proceedings in question were instituted on behalf of the United States of America and the City and County of Denver against one Lyttle as respondent, by virtue of the eminent domain statutes of Colorado (c. 61, '35 C. S. A.) and under authority of an Act of Congress approved August 26, 1937, 50 Stat. at Large, Part 1, p. 857, c. 834. The petitioners thereby sought to condemn an eighty-acre farm in Arapahoe county for use by the United States as an aerial gunnery and bombing range appurtenant to a branch of the Air Corps Technical School.

The cross-petition alleges that Deepe is sole owner of a valuable public service telephone franchise in the town of Parker, Douglas county, Colorado, and vicinity; that the franchise covers a large territory in Douglas and Elbert counties and twenty sections of land in Arapahoe county; that he operates a public telephone service under the public franchise and for this purpose maintains a telephone exchange at Parker and has constructed, maintains, owns and operates rural telephone lines connecting said local exchange with rural subscribers throughout the territory covered by the franchise; that the respondent Lyttle now is and for a long time has been a patron of the cross-petitioner, and regularly contracted and paid for the telephone service at his rural home and residence on the eighty acres sought to be condemned; that the cross-petitioner operates his exchange and service in accordance with his franchise under the name of Cherry Creek Telephone Company; that in order to serve the public in accordance with the terms and provisions of his franchise he has gone to great expense in the matter of constructing, maintaining and operating his exchange and rural lines; that by condemning and taking the Lyttle farm for the uses stated by the petitioners and by taking other adjacent and contiguous lands in the aforesaid twenty-section area in Arapahoe county for a like purpose the petitioners are confiscating and destroying approximately seven and one-half miles of cross-petitioner's telephone line as now constructed and maintained and are completely destroying his telephone franchise through all of the twenty sections of Arapahoe county land referred to; that the damage caused him by such taking of said lands and such impairment of said franchise, and by rendering said seven and one-half miles of his telephone lines useless, results regardless of whether all of said twenty-section area is condemned or title thereto is obtained by private purchase and agreement with the owner of said lands; that cross-petitioner's overhead expense in maintaining his Parker telephone exchange and rural telephone service throughout that part of the territory covered by his franchise, after said twenty Arapahoe county sections are eliminated therefrom, will be the same as it now is; that the materials and supplies which he now has on hand, amounting to several hundred dollars in value and purchased by him for the purpose of maintaining his telephone lines and rural telephone service and from time to time extending them to other potential patrons living in the aforesaid twenty sections, would be left on his hands and he will have no present use therefor and there is no prospect that he will in the near future have any use for such materials and supplies and therefore his investment in the same for some time to come will be a dead investment; that the petitioners will be the taking of the lands of said respondent Lyttle and by the taking and acquiring of other lands in said twenty sections cause damage to the cross-petitioner in the sum of $2,500.

The cross-petitioner prays for damages and demands a jury trial.

To the cross-petition the petitioners interposed a general demurrer and, at the suggestion of counsel for the cross-petitioner, the petitioners made a motion to strike the cross-petition from the files. As already stated, this motion was sustained, the court holding that the cross-petition does not state facts sufficient to constitute a cause of action for intervention.

It is obvious that the cross-petitioner's allegations fall far short of entitling him to relief.

The implication, for instance, that by condemnation of the Lyttle farm the possible loss of the respondent Lyttle as a patron of the cross-petitioner's telephone exchange gives rise to a proper claim for damages is clearly without any sound basis. This is of no more consequence than would be a similar loss of business by reason of discontinuance of the Lyttle telephone due to a voluntary sale of the Lyttle land or to a discontinuance by Lyttle for any other reason or for no reason at all. If such discontinuance should violate a subsisting contract, the remedy would of course be an action on that contract and not relief in the condemnation proceedings.

Telephone and other public utilities, like other industries and individual enterprises, must naturally take their chances on possible changes in the business of a community, changes which may and often do vitally affect the business income, sometimes favorably, sometimes otherwise. Expectations of growth and development in a given territory, like the fear of permanent or temporary recessions or entire disappearance of business, may indeed count as elements of calculation in the planning of one's investments in such territory; but so long as changed conditions result from lawful activities they of themselves do not create vested interests if successful, nor, if adverse, do they supply a ground for charging the loss to others.

[1, 2] The provision under which the cross-petitioner claims the right to intervene is section 12 of the Eminent Domain Act, supra. This section requires a showing that a cross-petitioner "is an owner or has an interest in the property sought to be taken or damaged by the petitioner." Deepe, the present cross-petitioner, plainly fails to bring himself within the reasonable meaning of the section, for he alleges no facts which indicate any such ownership or interest in relation to the eighty-acre Lyttle farm, the only property here sought to be condemned. The power to take property by condemnation is a lawful one and belongs unconditionally to any person, natural or artificial, who can qualify under the legal requirements. The interest which, under the Constitution and statutes, entitles a person to compensation for injury must have a direct and actual concrete connection with the specific land attempted to be taken.

The fact that a reserve stock of materials and supplies for repair, replenishment or extension may or will eventually prove larger than will be needed in the future is of course irrelevant. Such an item is sought to be alleged by the cross-petitioner here, but it would manifestly be too speculative even to rank as an element of damages if a cause of action were sufficiently stated.

For the reasons given above, the district court was right in refusing to permit the cross-petitioner to intervene.

Judgment affirmed.

MR. JUSTICE HILLIARD dissents.

MR. CHIEF JUSTICE BURKE, MR. JUSTICE YOUNG and MR. JUSTICE HILLIARD not participating.