Smith v. Clifton District

10 Citing cases

  1. City of Steamboat Springs v. Johnson

    252 P.3d 1142 (Colo. App. 2010)   Cited 15 times
    Reading Smith as limited to its facts and concluding that a restrictive covenant was a compensable property interest

    The City concedes, and we agree, that Johnson's right to limit the areas to greenbelt uses was a protected property interest. This result is not contrary to Smith v. Clifton Sanitation District, 134 Colo. 116, 300 P.2d 548 (1956). Smith, citing the rule that "[p]arties may not by contract between themselves restrict the exercise of the power of eminent domain," denied compensation to persons who had "scheme[d]" in an "invalid" manner that was "contrary to sound public policy" to record restrictive covenants on the "eve of the filing of a condemnation case.

  2. Town of Monument v. State

    467 P.3d 1126 (Colo. App. 2018)   Cited 3 times

    The Town originally named only itself (as the owner of the parcel in question) and the county treasurer as defendants. ¶ 2 Everyone recognized that the case came down to deciding whether the Colorado Supreme Court's decision in Smith v. Clifton Sanitation District , 134 Colo. 116, 300 P.2d 548 (1956), or the Colorado Court of Appeals’ decision in City of Steamboat Springs v. Johnson , 252 P.3d 1142 (Colo. App. 2010), controls. In the former, an eminent domain case, the court held that a restrictive covenant wasn't a compensable property interest.

  3. Forest View Co. v. Town of Monument

    464 P.3d 774 (Colo. 2020)   Cited 4 times

    But does the existence of a restrictive covenant change the analysis? We answered this question over half a century ago in the negative, holding in Smith v. Clifton Sanitation District , 134 Colo. 116, 300 P.2d 548 (1956), that when state or local government acquires property subject to a restrictive covenant and uses it for purposes inconsistent with that covenant, "no claim for damages arises by virtue of such a covenant as in the instant case, in favor of the owners of other property" subject to the covenant. Id . at 550.

  4. Southern Cal. Edison Co. v. Bourgerie

    9 Cal.3d 169 (Cal. 1973)   Cited 33 times
    Holding that property owners are entitled to be compensated for the violation of building restrictions in eminent domain proceedings

    The conceptual premises underlying eminent domain proceedings add further support to the holding in Friesen. In Smith v. Clifton Sanitation District, 134 Colo. 116, 120 [ 300 P.2d 548], the court remarked "We think it is fundamental that where a company, corporation or agency of the state is vested with the right of eminent domain and has acquired property through eminent domain proceedings and is using the property for public purposes, no claim for damages arises by virtue of such a covenant as in the instant case, in favor of the owners of other property on account of such use by the condemner. Were the rule otherwise the right of eminent domain could be defeated if the condemning authority had to respond in damages.

  5. Direct Mail Services, Inc. v. Best

    729 F.2d 672 (10th Cir. 1984)   Cited 6 times

    Persons may not by contract or otherwise restrict the State's exercise of its lawful eminent domain authority. See Smith v. Clifton Sanitation District, 134 Colo. 116, 300 P.2d 548 (1956). This is not meant to imply that in no event may the lessee maintain an action against the State for an unlawful taking after an award to the lessor.

  6. School District No. 3 v. Country Club

    241 S.C. 215 (S.C. 1962)   Cited 5 times

    The following cases did not permit recovery: Herr v.Board of Education of Newark, 82 N.J.L. 610, 83 A. 173; Doan v. Cleveland Shortline Ry. Co., 92 Ohio St. 461, 112 N.E. 505; Clifton George Co. v. Great Southern Life Ins.Co., Tex. Civ. App., 247 S.W. 912; City of Houston v.Wynne, Tex. Civ. App., 279 S.W. 916; Fuller v. TownBoard of Madison, 193 Wis. 549, 214 N.W. 324; Sackettv. Los Angeles City School District of Los Angeles County, 118 Cal.App. 254, 5 P.2d 23; Moses et al. v. Hazen, 63 App. D.C. 104, 69 F.2d 842, 98 A.L.R. 386; Anderson v. Lynch, 188 Ga. 154, 3 S.E.2d 85, 122 A.L.R. 1456; Board of Public Instruction of Dade County,Florida v. Town of Bay Harbor Islands, Fla., 81 So.2d 637; State of West Va. ex rel. Wells v. City of Dunbar, 142 W. Va. 332, 95 S.E.2d 457; Smith v. Clifton SanitationDistrict, 134 Colo. 116, 300 P.2d 548. "* * * So where an easement is in the form of a restriction, a taking for a use which will defeat the restriction is a taking of the property of the owner of the dominant estate.

  7. Creegan v. State

    342 P.3d 2 (Kan. Ct. App. 2015)

    In some cases, particularly those favoring the contract-rights treatment of restrictive covenants, the courts have expressly invoked loss allocation. See Smith v. Clifton District, 134 Colo. 116, 120, 300 P.2d 548 (1956); Board of Public Instruction v. Town of Bay Harbor I., 81 So.2d 637, 644–45 (Fla.1955); cf. Southern Cal. Edison Co. v. Bourgerie, 9 Cal.3d 169, 175, 107 Cal.Rptr. 76, 507 P.2d 964 (1973) (dismissing contract-rights approach as “placing a disproportionate share of the costs of public improvements upon a few individuals”). In others, it ripples covertly beneath the articulated reasons, perhaps accounting for the conclusory explanations of the results.

  8. Leigh v. Village of Los Lunas

    137 N.M. 119 (N.M. Ct. App. 2004)   Cited 14 times
    Holding that an easement in the form of a restrictive covenant constitutes a valuable property right and, thus, a violation of such a covenant requires compensation

    {10} The essence of the minority view is (1) that restrictive covenants are not property entitled to eminent domain protection but are merely contractual rights, (2) that it is against public policy to restrict the government's eminent domain power through private agreements, and (3) that to require compensation would create undue financial burden for the public. See, e.g., United States v. Certain Lands in Jamestown, 112 F. 622, 628-29 (C.C.D.R.I. 1899); Burma Hills Dev. Co. v. Marr, 285 Ala. 141, 229 So.2d 776, 781-82 (1969); Smith v. Clifton Sanitation Dist., 134 Colo. 116, 300 P.2d 548, 550 (1956) (en banc); Bd. of Pub. Instruction v. Town of Bay Harbor Islands, 81 So.2d 637, 642 (Fla. 1955); Anderson v. Lynch, 188 Ga. 154, 3 S.E.2d 85, 89 (1939). The Village looks to these minority view jurisdictions for support.

  9. Washington Sub. San. Com'n v. Frankel

    57 Md. App. 419 (Md. Ct. Spec. App. 1984)   Cited 10 times
    Rejecting argument that restrictive covenants are contracts and, therefore, unenforceable against government entities undertaking projects benefiting the public because the argument says nothing more than “they are void because they are void”

    Despite this rather formidable array of authority, WSSC urges us to adopt the minority view which denies compensation to the owner of the dominant tenement when land subject to a restrictive covenant is condemned. That position is espoused by Wharton v. United States, 153 F. 876 (1st Cir. 1907) (affirming U.S. v. Certain Lands in Jamestown, 112 F. 622 (CC D.R.I. 1899)); Burma Hills Development Co. v. Marr, 285 Ala. 141, 229 So.2d 776 (1969); Arkansas State Highway Comm. v. McNeill, 238 Ark. 244, 381 S.W.2d 425, 435 (1964); Smith v. Clifton Sanitation District, 134 Colo. 116, 300 P.2d 548 (1956) ( semble); Moses v. Hazen, 69 F.2d 842 (D.C.App. 1934); Board of Public Instruction v. Bay Harbor Islands, 81 So.2d 637 (Fla. 1955); Anderson v. Lynch, 188 Ga. 154, 3 S.E.2d 85 (1939); Doan v. Cleveland Short Line Ry. Co., 92 Ohio St. 461, 112 N.E. 505 (1915); Burke v. Oklahoma City, 350 P.2d 264 (Okla. 1960); Hospital Service District No. 2 v. Dean, 345 So.2d 234 (La. App. 1977); Houston v. Wynne, 279 S.W. 916 (Tex.Civ.App. 1925); but cf. Houston v. McCarthy, 464 S.W.2d 381 (Tex.Civ.App. 1971); and State ex rel. Wells v. Dunbar, 142 W. Va. 332, 95 S.E.2d 457 (1956).

  10. Gremillion v. Rapides Paris School Board

    134 So. 2d 700 (La. Ct. App. 1961)   Cited 8 times
    In Gremillion, then Judge (now Justice) Tate of our circuit reviewed thoroughly the status of this issue in various other jurisdictions. It was noted that the question is de novo in Louisiana.

    In the sense that such restrictive covenants cannot affect the state's acquiring or use of the land for public purposes, they do not constitute, as against the sovereign, any property right which must be compensated for the violation or damaging thereof by the use of the property for a governmental purpose. Among decisions so holding, after discussion of the conflicting authorities, are: State ex rel. Wells v. City of Dunbar, 142 W. Va. 332, 95 S.E.2d 457 (1956); Smith v. Clifton Sanitation District, 134 Colo. 116, 300 P.2d 548 (1956); Board of Public Instruction struction of Dade County v. Town of Bay Harbor, Fla., 81 So.2d 637 (1955); Anderson v. Lynch, 188 Ga. 154, 3 S.E.2d 85, 122 A.L.R. 1456 (1939). Some of these decisions also note that in many instances, such as for example in cases of the large modern subdivisions containing many hundreds or even thousands of lot owners, an insuperable burden to exercise of the governmental power of eminent domain would be created by any requirement that all other lot owners be impleaded or compensated before any public improvement be undertaken upon any individual lot of the entire tract subject to restrictive covenants.