Opinion
Tinsley & Frantz, Mansur Tinsley, Lakewood, for plaintiff-appellant.
John P. Moore, Atty. Gen., Joseph M. Montano, Wayne B. Schroeder, Sp. Asst. Attys. Gen., Denver, for defendant-appelllee.
VanCISE, Judge.
Asserting that the operation of a permanent port-of-entry near his property constituted a private nuisance, Webster brought an action for damages against the Department of Revenue. Webster appeals from dismissal of that action. We affirm.
In 1962, Webster purchased a hotel and restaurant fronting on U.S. Highway 6--40 west of Idaho Springs at Downeyville, Colorado. At the time he acquired the property, there was a mobile port-of-entry, operated by the Department of Revenue, adjacent to this highway about 100 yards west of the hotel and restaurant. In 1965, Interstate Highway 70 was completed to the south of the area and an interchange from it to U.S. Highway 6--40 was constructed at Downeyville. In that same year, the Department of Revenue erected a permanent port-of-entry at approximately the same location as the previous mobile port-of-entry.
In February 1971, Webster sued the Department of Revenue for damages on a nuisance theory. He claimed that establishment of the permanent port-of-entry and the resulting heavy, almost continuous truck traffic thereto caused a reduction in the value of his property and loss of profits from his business. In a trial to the court, the action was dismissed at the conclusion of Webster's case.
The only issue raised in Webster's motion for new trial was whether he was barred from recovery of damages by the fact that mobile port-of-entry had existed at the same location at the time he acquired his land. Other issues discussed in his brief are not properly before this court and will not be considered on review. Platte Valley Elevators v. Gebauer, 127 Colo. 356, 256 P.2d 903; O. E. Cady v. City of Arvada, 31 Colo.App. 85, 499 P.2d 1203.
In a trial to the court, the test to be applied in granting or denying defendant's motion for judgment at the conclusion of plaintiff's case is not whether plaintiff has presented a prima facie case, but whether judgment in favor of the defendant was justified by a preponderance of the evidence adduced upon plaintiff's case. Rubens v. Pember, 170 Colo. 182, 460 P.2d 803; Niernberg v. Gavin, 123 Colo. 1, 224 P.2d 215, and See Teodonno v. Bachman, 158 Colo. 1, 404 P.2d 284.
The evidence is in conflict as to whether Webster suffered any injury to his business and property resulting from the existence and operation of the permanent port-of-entry over and above that caused by the pre-existing mobile port-of-entry. See Majestic Heights Co. v. Board of County Commissioners, 173 Colo. 178, 476 P.2d 745; Platte & Denver Ditch Co. v. Anderson, 8 Colo. 131, 6 P. 515. Furthermore, conflicting reasonable inferences can be drawn from the evidence as to whether these additional damages, if any, are different in kind rather than merely in degree (and therefore non-compensable) from those suffered by the general public. See Majestic Heights Co. v. Board of County Commissioners, Supra; Troiano v. Colorado Department of Highways, 170 Colo. 484, 463 P.2d 448; LaVelle v. Town of Julesburg, 49 Colo. 290, 112 P. 774. Therefore, the court's determinations on these issues are binding on us.
Judgment affirmed.
SMITH and RULAND, JJ., concur.