2021 Colorado Code
Title 40 - Utilities
Article 24 - Electric and Street Railroads
§ 40-24-101. Street Railway - Consent Necessary

Nothing in articles 20 to 33 of this title shall be construed to allow the construction of any street or other railroad or other structure or substructure for any purpose on, below, or elevated above the surface of the ground of any street or alley within the limits of any such city or town by any corporation or person without the consent of the local authorities of such city or town; but no such consent, however enacted or expressed, on any consideration whatever shall operate to relieve or protect any person or corporation constructing any such street or other railroad or structure or substructure against any claim for damages to private property which otherwise, without such consent, might be lawfully maintained against such person or corporation.

History. Source: G.L. § 219. G.S. § 266. L. 1885: P. 152, § 1. R.S. 08: § 5420. C.L. § 2823. CSA: C. 139, § 9. CRS 53: § 116-5-1. C.R.S. 1963: § 116-5-1. L. 77: Entire section amended, p. 1240, § 2, effective July 1. History. Source: G.L. § 219. G.S. § 266. L. 1885: P. 152, § 1. R.S. 08: § 5420. C.L. § 2823. CSA: C. 139, § 9. CRS 53: § 116-5-1. C.R.S. 1963: § 116-5-1. L. 77: Entire section amended, p. 1240, § 2, effective July 1.

This section reenacts, in effect, § 11 of art. XV, Colo. Const., and further declares, substantially, that the consent upon the part of a city to the construction of a street railroad therein shall not operate to relieve or protect those constructing the road, etc., “against any claim for damages to private property, which otherwise, without such consent, might be lawfully maintained against” the persons constructing the road. Harrison v. Denver City Tramway Co., 54 Colo. 593 , 131 P. 409 (1913).

Insufficient complaint under this section. A complaint under this section states no cause of action where it contains no allegation that the railway track is above or below the surface of the street, or was in anywise improperly or negligently constructed, or that the road, as a structure, in any way hampers ingress or egress. Where the inconvenience alleged arises from “the frequency with which cars are operated upon said tracks”, and in no sense from the structure itself, the defendant is not liable for inconvenience of either character, because they are merely incident to the use of the highway for public travel. Denver & S. F. Ry. v. Hannegan, 43 Colo. 122 , 95 P. 343, 127 Am. St. R. 100, 16 L.R.A. (n.s.) 874 (1908); Harrison v. Denver City Tramway Co., 54 Colo. 593 , 131 P. 409 (1913).

Railroad's liability for damage or taking of private property is the same as that of city. This section makes it certain, as between municipalities and those constructing street railroads therein, that the latter shall make compensation for private property taken or damaged in the construction of such public works. In other words, as to the liability for compensation for private property taken or damaged, those constructing the road stand in the place of the city. Harrison v. Denver City Tramway Co., 54 Colo. 593 , 131 P. 409 (1913).

Under this section plaintiff's rights depend solely upon whether the property has been taken or damaged. Harrison v. Denver City Tramway Co., 54 Colo. 593 , 131 P. 409 (1913).

It must appear that plaintiff had some right in, use of, or interest pertaining to the property which has been wholly or partially destroyed before she can maintain a cause of action for damages to her property. Harrison v. Denver City Tramway Co., 54 Colo. 593 , 131 P. 409 (1913).

The right disturbed may be either public or private, but it must be a right which is enjoyed in connection with one's property, and which gave to it an additional value, and without which, or as affected by the disturbance, the property itself is damaged. The disturbance of the right of easement may be at a distance from the property injured, but the interference must be with some right held with regard to that property. Gilbert v. Greeley, S. L. & Pac. Ry., 13 Colo. 501 , 22 P. 814 (1889); Harrison v. Denver City Tramway Co., 54 Colo. 593 , 131 P. 409 (1913).

The injury sustained must be damages to one's property, not incidental injuries arising from a careful exercise of legal rights by defendant in a manner that does not invade the legal rights of plaintiff. City of Denver v. Bayer, 7 Colo. 113 , 2 P. 6 (1883); Denver Circle R. R. v. Nestor, 10 Colo. 403 , 15 P. 714 (1887); Harrison v. Denver City Tramway Co., 54 Colo. 593 , 131 P. 409 (1913).

The use of the streets in municipalities for street railway is one of the ordinary and usual purposes for which such streets and highways may be used. Harrison v. Denver City Tramway Co., 54 Colo. 593 , 131 P. 409 (1913).

The use of the streets in municipalities for street railway does not entitle the adjoining owner to compensation. Such a street railway, so laid and operated as not to materially impair access to, or the enjoyment of, the adjacent property may lawfully be placed in the public highways of the city, if expressly sanctioned by proper authority. Such a use does not impose any additional burden entitling the owner of adjoining land to compensation; nor can it be justly regarded, at the present day, as any substantial impairment of the public easement or of the private rights of proprietors of land abutting on the street. Harrison v. Denver City Tramway Co., 54 Colo. 593 , 131 P. 409 (1913).

Noises and vibrations of cars give no cause of action. The annoyances, discomfort, and injury, suffered by the abutter from the ringing of bells, and loud and discordant noises produced by the cars in passing over the tracks and around curves, are, excepting as to degree, suffered by the public generally so far as such noises and vibrations are heard and felt, and give no action. Harrison v. Denver City Tramway Co., 54 Colo. 593 , 131 P. 409 (1913).

The abutter is entitled to receive at, or remove from his premises, persons or goods, and to have vehicles stand in front thereof upon the street, for the time reasonably necessary for this purpose, even though this may temporarily interfere with the passage of others; and if this right is interfered with he may have redress therefor in a proper action. Harrison v. Denver City Tramway Co., 54 Colo. 593 , 131 P. 409 (1913).