Opinion
No. 72-068 (Supreme Court No. 24727)
Decided June 6, 1972. Rehearing denied June 27, 1972. Certiorari granted October 24, 1972.
Trespass action for damages and to require defendants to restore the property to its former condition. From award of damages verdicts totaling $1600, plaintiff appealed.
Reversed
1. PRACTICE AND PROCEDURE — Pre-trial Conference — No Facts — No Consent of Parties — Trial Court — Not — Resolve Disputed Issues. In action for damages caused by defendants' alleged trespass upon plaintiff's property and for injunctive relief, there is nothing in the record indicating that trial court had before it at pre-trial conference facts which would establish city's right to condemn easement across the property nor does record indicate facts or the consent of the parties which would permit trial court to make a determination of plaintiff's right to injunctive relief; thus, the trial court should not have resolved those disputed issues in its pre-trial order.
2. ADVERSE POSSESSION — Trespass — Action — Damages — First Date — Error — Restrict — Date of Quiet Title Decree. In action for trespass to real property, plaintiff's title to the property having been acquired by virtue of adverse possession as established in prior quiet title action, plaintiff is entitled to damages for any injury caused by defendants from the first date of her adverse possession, subject to any defenses defendants might have; thus, trial court erred in restricting her evidence of damages to acts of defendants occurring subsequent to date of quiet title decree.
Appeal from the District Court of Boulder County, Honorable Howard O. Ashton, Judge.
James H. Snyder, Wesley H. Doan, for plaintiff-appellant.
Hollenbeck, King, French and Mills, Guy A. Hollenbeck, Peter C. Kietze, for defendants-appellees Spring Valley Estates, Inc. and James M. Burger.
Walter L. Wagenhals, City Attorney, Gilbert M. Sackheim, Assistant, for defendant-appellee City of Boulder, Colorado.
This case was transferred from the Supreme Court pursuant to statute.
This action was brought by Minnie May Cunningham against the named defendants for damages caused by defendants' alleged trespass upon her property and to require defendants to restore the property and to require defendants to restore the property to its former condition. Trial was to a jury which returned a verdict in plaintiff's favor of $1,000 against defendants Spring Valley Estates and James Burger and for $600 against the defendant City of Boulder. Plaintiff appeals, alleging the trial court erroneously determined controverted issues of law and fact in its pre-trial order. We agree with plaintiff and reverse the judgment.
This controversy arose out of the following facts: On or about April 19, 1966, defendant Spring Valley Estates, Inc., (Spring Valley) applied to defendant City of Boulder (City) for sanitation sewer service for its subdivision lying north and west of the City. These parties thereafter entered into an agreement whereby the City agreed that if Spring Valley constructed the necessary sewer main, conveyed it to the City and granted the City an easement extending several feet on each side of the main, the City would connect the main onto the existing sewer main within the City limits and furnish the subdivision with the requested sewer service. Construction on the main was commenced prior to July 1966.
Record title to the strip of land, through which the sewer main was to be constructed, was held by defendant James Burger, the president of Spring Valley. Plaintiff, Minnie May Cunningham, was the record owner of approximately four acres partially abutting the strip of land in question. On July 12, 1966, plaintiff brought a quiet title action against Burger, claiming title by adverse possession to this strip of land. Judgment was entered July 15, 1967, quieting the title in plaintiff. The present action for damages and an injunction was commenced on October 11, 1968.
Plaintiff's complaint alleged that she had been the owner of the strip of land at all times pertinent to the action and, in her first claim for relief, sought damages for injury to the strip of land and her adjacent property and damages for alleged mental and physical injury to herself. Plaintiff's second claim was for injunctive relief for restoration of her property to its former condition. James Burger's and Spring Valley's answer, as an affirmative defense, denied plaintiff had been owner of the property at the time of the construction and asserted that when she became owner, i.e., July 15, 1967, she acquired the title subject to an easement for the maintenance and repair of the sewer line. City of Boulder's answer requested that the trial court regard the action as one in inverse condemnation and vest a permanent easement in the City.
The pre-trial order complained of stated, inter alia, that the defendant City had a right to a sewer easement on the basis of inverse condemnation, denied plaintiff's request for injunctive relief and restricted plaintiff's evidence and damages to mental anguish and physical suffering caused by defendant's acts occurring subsequent to the date of the quiet title decree. The partial transcript provided this court shows that the order was signed over plaintiff's objection.
[1] There is nothing in the record indicating that the trial court had before it any facts which would establish the City's right to condemn this easement, and further the record does show that the plaintiff objected to this determination at the pre-trial conference. Nor does the record indicate that the trial court had any facts before it or the consent of the parties to make a determination of plaintiff's right to injunctive relief. As stated in Glisan v. Kurth, 153 Colo. 102, 384 P.2d 946, "Pre-trial conferences are not intended to serve as a substitute for the trial of cases, nor to be utilized as a method to bypass the traditional manner of resolving factual issues." In the absence of agreement or admissions by the parties, the trial court should not resolve disputed issues in a pre-trial order. See Ferguson v. Hurford, 132 Colo. 507, 290 P.2d 229.
[2] Plaintiff also contends that, as a matter of law, the trial court erred in restricting her evidence of damages to acts of defendants occurring subsequent to July 15, 1967, the date of the quiet title decree. The partial transcript provided this court does not disclose the dates of plaintiff's adverse possession. However, in the quiet title action, plaintiff had the burden of proving, and did prove, that she had acquired title to the property in question. See Buell v. Redding Miller, Inc., 163 Colo. 286, 430 P.2d 471. Consequently, plaintiff is entitled to damages for any injury caused by defendants from the first date of her adverse possession subject to any defenses defendants might have. See 1967 Perm. Supp., C.R.S. 1963, 118-7-1(1); Moss v. O'Brien, 165 Colo. 93, 437 P.2d 348; Riggs v. McMurtry, 157 Colo. 33, 400 P.2d 916; Beard v. Henn, 28 Ill.2d 11, 190 N.E.2d 345. Therefore the trial court's ruling on damages was also erroneous.
We have considered the other issues raised in this appeal, but feel it is unnecessary to rule upon them in light of our holding.
Judgment reversed and cause remanded to the trial court for a new trial on all issues.
JUDGE COYTE and JUDGE PIERCE concur.