The Arvada enterprise., 1913-12-04
JUDGE HARRY S: CLASS GIVES
OPINION IN SIDEWALK CASE

I property held by city for the bcnctt
and use of the whole public should not
be allowed to ripen into prescriptive
title. The city is in some respects not
"A division of the state, but II is at least
an agent Of the state, exercising, with
in certain Limits, governmental -func-
tions and powers, If prescription does
not run against me state it should not
run against city in respect to rights
which are entrusted to the city for the
benefit of the public generally, and as
to which 1t exercises governmental
powers y municipal corporation is en-
trusted with the care and control OF its
streets for the use and benefit not of
its own inhabitants, but of the whole
public, and prescription, which does not
run against the state. should not run
against its trustees. Every unauthor-
lied encroachment upon street, by
which its use is in danger of impair
ment is a public nuisance. and cannot
be justified or sanctioned by the lapse
of time, however great"
AS an instance of the difficulty which
courts of review have experienced in
arriving at the true rule in these mat
ters, | cite the cases of Wheeling V.
Campbell, II w. Va. SO, and Ralston
V. Weston, 46 w. Va. p. 544, Ann, Sta
vol. rs. at p. S34. In the former case
the cout hold that the statutes of limi
tations did run against the municipal
ity. In the latter case, the Court com
pletely reversed itself and delivered
itself OF n scathing criticism of the
doctrine laid down in the earlier case
of Wheeling V. Campbell, saying THE
doctrine of stare decisis cannot be in
volved to perpetuate public nuisances
or destroy the sovereignty and welfare
of the people," and over-rule their pre-
vious decisions insofar as they hold
that public easements in the public
I highways can be destroyed by private
individuals, contrary to the sovereign
will of the people, and are hereby dis
approved as enormously propounding
the law"
In Ralston v. Weston, supra, the
Court says:
The only logical conclusion that can
possibly be reached is that the public
easement in all highways of the state,
| wherever situated, is sacred from indi-
vidual encroachmcnts, and all interfer-
ence herewith, by private interests is
n continuing public nuisance, subject
to abatement wheneer the growing
necessities of the public require such
easement for the uses to which the land
to which it attaches was originally
dedicated. This conclusion Is sustained
by vast and increasing weight of au-
thority, including England, Canada, the
U. s. the states of Alabama, California.
Colorado, Indiana, Illinois Iowa, Kan
sas, Louisiana, Maine. Maryland, Mass
achusetts, Minnesota, Mississippi, Mis-
souri, Montana, New York, New Hamp-
shire, Nosth Gxrolina, New Jersey, Ohio.
lPennsylvania, Rhode Island Tennessee,
Texas. Utah Washington. Wisconsin
and virginia
In the light of the reasoning of the
foregoing authorities which are lead
ing cases on the subject | conclude
that the statute of limitations in this
OF 1npo AGAINST "a nlnpipi-
pality with reference to its roads,
streets or highways.
One of the basic principles of Equity
is that the Court may and should
wherever possible administer fully and
| completely the respective rights of the
parties as they may appear. While II
may be possible that the circumstan.
ces attending the case at bar are such
that the plaintiffs may have been mis-.
led by some Affirmative act on the
part of the municipal authorities OF
the County OF Jefferson or of the Town
of Arvada, and that the plaintiffs may
have suffered injury or damage there
by, there are no facts in the record up
on which the Court could predicate a
judgment for the damage or injury
sustained. Under the authorities, ]
believe the plaintiffs have no right to
any part of the street in controversy,
and If the plaintiffs have suffered dam
ages through the tortious of wrongful
acts of the county or town they are
relegated to their action at law.
The application Of the plaintiffs for
temporary injunction is denied.
Pronounced as OF the 25th day OF
November, A. d. 1913.
By the Court:
II. s. CLASS,
Judge
rnIJo, rnIn 1lIq