Duff v. City and County of Denver

362 P.2d 1049 (1961)

J. W. DUFF, also known as Joseph W. Duff, Plaintiff in Error, v. CITY AND COUNTY OF DENVER, a Municipal Corporation, Defendant in Error.

No. 19380.

Supreme Court of Colorado. En Banc.

June 26, 1961.

Rehearing Denied July 17, 1961.

*1050 Caddes & Capra, Denver, for plaintiff in error.

Donald E. Kelley, Earl T. Thrasher, Hans W. Johnson, Denver, for defendant in error.

SUTTON, Justice.

We will refer to plaintiff in error as Duff and defendant in error as Denver.

Denver sought by eminent domain proceedings to acquire Duff's privately owned land to expand its municipally owned Stapleton Airfield. Duff's use of his land at the time of suit was generally as a private or fixed base operator for the storage and servicing of private airplanes. Denver contemplated using the land for supporting facilities such as airplane parking areas, taxiways and similar purposes, and possibly some for leasing to other base operators for operations similar to those now conducted by Duff.

Duff's contention is that the facts presented contemplate the forcible seizure of his lands with the ultimate view of merely changing his private ownership to the private lease of a city tenant, and asserts that even with compensation such taking is invalid. He passes over the fact that his land is sought in accord with an agreement of the City and the Federal Aviation Agency to complete the planned expansion of the airfield for airport facilities as well as safety control. In other words he contends there is no public necessity for or public purpose in the taking, though the use contemplated by the city is, according to the testimony, "* * * for the installation of necessary Airport facilities, such as service roads, aircraft taxiways, airplane parking appurtenances, airplane hangars, airplane shopping facilities, and other similar appurtenances to the Airfield."

A review of the record presented as well as consideration of the briefs and oral arguments of counsel leads us to conclude that this case is governed by C.R.S. `53, 5-4-1 and by our decisions in Brodhead v. Denver, 1952, 126 Colo. 119, 247 P.2d 140 and Denver v. Commissioners, 1945, 113 Colo. 150, 156 P.2d 101.

The judgment is affirmed.

DOYLE, J., not participating.