1972, April, Pg. 52. The Environment.

1 Colo.Law. 52

Colorado Lawyer

1972.

1972, April, Pg. 52.

The Environment

521972, April, Pg. 52The EnvironmentThe following opinion rendered May 7, 1971 was selected for reproduction because of its significant impact on Colorado law. On January 13, 1972, Castle Concrete's motion for a new trial was denied without argument. The case is now on appeal to the Colorado Court of Appeals.In the District Court Within and for the County of El Paso and State of Colorado Civil Action No. 62488

Laverne Green, et al., Plaintiffs,

v.

Castle Concrete Company, Defendant.

Findings of fact and conclusions of law.

This matter duly came on for hearing before the court without a jury on February 8, 1971. The plaintiffs appeared by Howard Morrison, Esquire, their attorney. Defendant appeared by Evans, Peterson and Torbet, its attorneys. Evidence, oral, documentary and photographic, was received on the following dates, namely: February 8, 9, 10, 11, 16, 17, 18, 23, 24, 25, 26, March 1 and 2, 1971. The court shortly thereafter viewed the site of the quarry involved and of the Queen's Quarry. An Amicus Curiae brief by Springs Area Beautiful Association and the Sierra Club was filed March 8, 1971, without leave of court but consent to its filing was given by the court on April 7, 1971, pursuant to motion and notice. The court on April 5, 1971, entered its order reopening the case for the sole purpose of receiving evidence concerning zoning and set the hearing for April 14, 1971, on which date additional evidence was taken on this matter. The court having considered the evidence, the briefs, having consulted the law and being fully advised in the premises

DOTH FIND:

1. This claim was commenced on June 18, 1970, and was tried on the Second Amended Complaint. The Second Amended Complaint charges the defendant is about to commit a nuisance by the operation of a quarry for rock which it is in the process of opening. The nuisance is caused by blasting, the shaking and tremoring of homes of plaintiffs by the blasting and by dust and small particles, which will be deposited in the homes of plaintiffs and the loading of the air with residue from the quarry. It is further averred that the plaintiffs are entitled to an aesthetic view of the front range of the Rocky Mountains and the operation will jeopardize their right to a decent environment, and that they are entitled to all rights granted to people by the Ninth Amendment Article to the Constitution of the United States of America. The Complaint prays that the defendant be permanently enjoined from its quarry operation in the Williams Canyon Quarry.

   The Answer of the defendant admits the opening of the quarry and its intent to pursue the operation, denies the nuisance averments of plaintiffs, avers the quarry operations were begun in the area forty years ago, that the defendant owns the land and the same is properly zoned for mining.

   The claim came to trial on these issues.

2. The court takes judicial notice of the

   53following facts contained in this paragraph. The term "front range" is a loosely applied term to several ranges of the Rocky Mountains rising from the plains of Colorado. These ranges have no foothills. The east face of these ranges are visible for miles to the east by those persons approaching the Rocky Mountains from the east. The Front Range contains two of the great mountains of Colorado---they are Longs Peak and Pikes Peak. The great majority of the people of the State of Colorado reside close to and within sight of the Front Range. A chain of cities, including Boulder, Denver, Fort Collins, Loveland, Greeley, Colorado Springs and Pueblo, lie just east of this range. The Colorado Rocky Mountains are a magnet attracting many tourists each year. The Front Range rising as it does abruptly from the great plains is a unique sight. It is in this range that the inhabitants of Colorado's cities play and go to for recreation and which attracts many of our tourists. What happens in this Front Range is of considerable importance to our people, both economically and otherwise.

   The portion of the Front Range involved in this claim is the southern portion thereof known as the Rampart Range commencing at Devil's Head south of Denver and ending in the Ute Pass Fault where it meets the Pikes Peak Massif. It has an almost uniform height of 9,000 feet. The City of Colorado Springs lies immediately to the east of this vicinity and the City of Manitou Springs lies west of Colorado Springs and south of the land in question. The population of the City of Colorado Springs according to the census was 135,060 in 1970, 70,194 in 1960 and 45,472 in 1950. The population of Manitou Springs in 1970 was 4,171 and in 1960 was 3,626. The population of El Paso County, in which the two cities are located, in 1970 was 235,972. The Chamber of Commerce of the City of Colorado estimates that the number of annual visitors to the Pikes Peak Region in 1970, most of whom were tourists, were 3,080,000 and they spent $85,470,000.00 In addition, those attending conventions were 77,350 in number and spent $9,282,000.00 The tourist industry is of immense importance to the area involved. The homes in Crystal Hills, a portion of the City of Manitou Springs, are new in construction and are moderately expensive. A severe drought has not occurred in this region since 1966.

3. In the Rampart Range near Colorado Springs there occurs outcroppings of limestone commencing near the City of Manitou Springs almost at its northern boundary at Williams Canyon. This limestone proceeds north and east having an almost right angle in it (see Plaintiffs' Exhibit F-13, a photographic slide) for approximately three miles. The limestone occupies a part of the Fountain formation. It is interpersed by two canyons, Williams and Queens, which exposes to view on either side thereof the strata of limestones as now existing. There is a smaller drainage and canyon known as Black Canyon between the two larger canyons. The drainage of Williams Canyon flows through a part of the business section of the City of Manitou Springs where it joins Fountain Creek. The drainage of Black Canyon likewise flows through a portion of Manitou Springs into Fountain Creek. The limestone formation begins on the west side of Williams Canyon approximately a quarter of a mile therefrom and runs to Queens Canyon and for approximately one-third of a mile on the north side of Queens Canyon. On the west side of Williams Canyon there is a fair sized cave known as the Cave of the Winds, privately operated, and one of the better tourist attractions of the region, visited by many of the tourists of the region. The limestone formations are mostly found in Sections 32, 29, 28 and 21 of Township 13, South, Range 67 West of the 6th Principal Meridian.

4. The defendants own in fee approximately 160 acres of the limestone formation composed of two tracts described as the East Half of the Northwest Quarter and the Northwest Quarter of the Northwest Quarter, the 120 acre tract, and the Southwest Quarter of the Southwest Quarter, the 40 acre tract, all in Section 32, Township 13, South, Range 67 West of the 6th Principal Meridian. Defendant owns the mineral interests but not the surface of the North Half of the Northeast Quarter of Section 32, the Southeast Quarter of Section 29, the South Half of the Northeast Quarter of Section 29, all in said township, being the 320 acre tract. Defendant also owns the mineral rights in adjoining 40 acres and 20 acres described as the South-west

   54Quarter of the Northwest Quarter of Section 28 in said township. The Rampart Range Road, a scenic road used frequently by tourists, traverses a portion of the 20 acre and the 320 acre tract. These properties come within 2,000 feet of Queens Canyon.

5. A quarry on the 120 acres, called in this record the Snyder Quarry, was opened about 1900. It was worked in a desultory fashion from time to time. The last work occurred probably in 1931. The road to it prior to the building of the present road by defendant was called by one witness a "jeep" road. The court visited the property. The workings were not extensive. At most the present size of the worked area of the Snyder Quarry is only three or four acres in extent. The height of the worked faces are not greater than 30 feet. This includes the space used by the defendant in its opening of the quarry in 1970.

6. There is exposed in Williams Canyon strata of limestone resting on a stratum of red sandstone of approximately 200 feet. Some core drilling, about six in number, in the vicinity of the Snyder Quarry indicates this depth of limestone exists close to Williams Canyon. Most of the acreage has not been core drilled. There are ridges and little valleys or gullies, apparently the result of erosion, throughout the property. The limestone does not exist throughout Williams Canyon. It ceases in the upper part of it.

   The defendant owns a tract of some 100 acres on the north side of Queens Canyon and it operates a limestone quarry known as the Queens Canyon Quarry or the Queens Quarry. It does not appear in the record; however, when the court viewed the quarry with Mr. Charles Batley, the quarry manager of the defendant, he stated the limestone in the Queens Quarry was 100 feet in depth, the upper part thereof which apparently contained the high calcium lime having eroded away. The Queens Canyon Quarry is pictured on Plaintiffs' Exhibit D quite prominently. Six million tons of rock have been...