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HomeMy WebLinkAboutLAURIE SUBDIVISION PUD, 1ST & 2ND FILINGS - MODIFICATION OF CONDITIONS OF APPROVAL - 44-89E & F - REPORTS - RECOMMENDATION/REPORT W/ATTACHMENTSSTAFF REPORT PROJECT: Laurie Subdivision PUD 1st & 2nd Filing, Modification of Conditions of Approval - #44-89E APPLICANT: Dr. William M. Musslewhite c/o Jack Johnson Company 1910 Prospector Ave., Suite 200 Park City, UT 84060 OWNER: Same PROJECT DESCRIPTION: This is a request to modify the conditions of final approval, which required execution of the development agreement, final plat and final plans prior to the next Planning and Zoning Board meeting. The applicant is requesting an additional six months for completing this condition. RECOMMENDATION: Approval EXECUTIVE SUMMARY: The applicant is requesting an additional six months to complete the condition of final approval, which required execution of the development agreement, final plat and final plans prior to the next Planning and Zoning Board meeting. This request would require execution of final documents prior to October 26, 1992. DEVELOPMENT SERVICES 300 LaPorte Ave. P.O. Boa 580 Fort Collins. CO 80522-0580 (303) 221-6750 PLANNING DEPARTMENT • Laurie Subdivision PUD, 1st and 2nd Filings - Modification of Conditions of Approval - ##44-89E,F April 27, 1992 P & Z Meeting Page 2 COMMENTS 1. Background: The final PUD received approval at the March 23, 1992 Planning and Zoning Board meeting. Included with this approval was a condition relating to executing the development agreement, final plans and final plat prior to the next Board meeting. The Applewood Irrigation Association is an owner/proprietor of this development because the Association has a prescriptive easement for the existing irrigation channel on the site. The remaining details regarding the irrigation pipeline route have not been finalized, so neither the Association or the applicant has signed the development agreement, final plat or final plans. The applicant has requested an additional six months to complete this condition. Staff supports this request, due to the nature of the negotiations between the applicant and the Applewood Irrigation Association. Staff is recommending the following condition: The development agreement, final plat and final plans for the planned unit development be executed by the developer and all other owners and proprietors (as defined by Colorado Statute) prior to the October 26, 1992 meeting of the Planning and Zoning Board; or, if not so executed, that the developer, at said October 26, 1992 meeting, apply to the Board for an extension of time. If the staff and the developer disagree over the provisions to be included in the development agreement, the developer may present such dispute to the Board for resolution if such presentation is made prior to the October 26, 1992 meeting of the Board. The Board may table any such decision, until both the staff and the developer have had reasonable time to present sufficient information to the Board to enable it to make its decision. If this condition is not met within the time established herein (or as extended, if applicable), then the final approval of this planned unit development shall become null and void and of no effect. The date of final approval for this planned unit development shall be deemed to be the date that the condition is met, for purposes of determining the vesting of rights. RECOMMENDATION Staff supports this request to require that final documents be executed prior to the October 26, 1992 Planning and Zoning Board • Laurie Subdivision PUD, 1st and 2nd Filings - Modification of Conditions of Approval - #44-89E,F April 27, 1992 P & Z Meeting Page 3 meeting, due to the nature of the negotiations between the applicant and the Applewood Irrigation Association. Staff is recommending the following condition: The development agreement, final plat and final plans for the planned unit development be executed by the developer and all other owners and proprietors (as defined by Colorado Statute) prior to the October 26, 1992 meeting of the Planning and Zoning Board; or, if not so executed, that the developer, at said October 26, 1992 meeting, apply to the Board for an extension of time. If the staff and the developer disagree over the provisions to be included in the development agreement, the developer may present such dispute to the Board for resolution if such presentation is made prior to the October 26, 1992 meeting of the Board. The Board may table any such decision, until both the staff and the developer have had reasonable time to present sufficient information to the Board to enable it to make its decision. If this condition is not met within the time established herein (or as extended, if applicable), then the final approval of this planned unit development shall become null and void and of no effect. The date of final approval for this planned unit development shall be deemed to be the date that the condition is met, for purposes of determining the vesting of rights. ILI ise APPLEWOOD WATER ASSOCIATION, INC. and APPLEWOOD HOMEOWNERS' ASSOCIATION P.O. Box 8292 Fort Collins, Colorado 80526 (303) 482-2125 April 3, 1992_ Russell B. Sanford Attorney at Law` 125 S. Howes, Suite 1100 Fort Collins, CO 80521 Re: Laurie Subdivision pipeline Dear Russ: As we discussed earlier today, the Applewood Water Association Board of Directors met yesterday to respond to the proposal you made on behalf of Dr. Musselwhite, joined in by Mr. Spencer, at our previous meeting on March 26th. This proposal was, in essence, to replace only that portion or our irrigation ditch crossing the Subdivision with a pipeline. Before discussing our response, I would like to clarify the law regarding our right to an undisturbed ditch. Your position has been that your client has the right to change the location of our ditch and pipe it without our approval so long as the quantity and quality of the irrigation water remain the same. You have cited the Brown and Stuart cases in support of this position. In doing so you have ignored the leading case of Valley Development Co. v. Weeks, 147 Colo. 591 (1961). This case is directly on point, references the Brown and Stuart cases and specifically rejects your interpretation of them. Under -the Valley Development holding, your client has no right to alter our ditch without our approval. In our conversation you acknowledged familiarity with the Valley Development case. In view of that -I am puzzled by your renewed threat to sue us if we reject your client's offer. We would undoubtedly prevail in such an action and would expect to recover our attorney's fees and costs. You could also be subject to a Rule 11 sanction for signing a meritless complaint. Your client should also be aware that any attempt to interfere with our ditch in order to create a fait accompli will result in our immediate filing of an action for a declaratory judgment and injunction. That said, your client's offer falls short of the Board's requirements. It will not approve a pipeline across Laurie Subdivision unless your client also pays for an extension of the line down the existing ditch to the siphon crossing Shields Street. In exploring this route before, the owners of the property immediately to the south objected unless they were granted access to their property through the Subdivision. If your client remains unwilling to provide that access or cannot negotiate a satisfactory agreement with the second owner to the south, we would agree to pursue a private condemnation proceeding for a pipeline. In that case, your client would bear the additional cost of the proceeding _ plus any damages assessed for the taking. Since condemnation could not be completed before the beginning of this year's irrigation season, installation of the pipeline may have to proceed in two stages. The first stage would be the installation of that portion of the line crossing the Subdivision, ending in a drop structure. We would agree to abandon that part of the currently platted pipeline -easement running along the southern boundary of the Subdivision to Shields Street when it is no longer needed. An additional easement or easements for access will be necessary to service the inlet structure for the pipeline and the drop structure, if installed. This is the bare outline of our offer. We will have additional requirements, and a detailed set of plans, specifications and a construction timetable will have to be generated, tied to the development contract with the City of Fort Collins. If a two -stage installation procedure is necessary, additional arrangements will be required to assure completion. We look forward to further negotiations. Sincerely, MS ark W. t iss President, Applewood Water Association, Inc. cc: Board of Directors William Brown Sherry Albertson -Clark Paul Eckman Ray Spencer Dennis Donovan Planning and Zoning Board Review Reqtmements Certification Owner Certification 7'. T 77 4 4T :1 N 0-- I 'lilt 2, 11 24 l„�� Statement at Planning Objectives . . .... .... . .... .. Project Site Vicinity Map 19 J J,J ��� Scale: r=59 1st 2nd Notes: Tabulations F&V U—SU, fix) ftcel Sao. Goss An"KIKIdtfSt Fry1,. P Pa,cel Size. 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T.a..—evr.2T,ec• ..alv.nL. • -a -T- _.:_- .y.-__..1. - eI_>_.....—_l__vr_ >_ _�•r,so.o. . - -- - ei.,. i.. �•�r �v..-;,_-0.„--.• o.�• tr �.-.o�.�r._.••T•_,!-e,—T1_ r..— ..- __ .- _. 4migrI( o w mmK —.11 zt a.t i APPLEWOOD WATER ASSOCIATION, INC. and APPLEWOOD HOMEOWNERS' ASSOCIATION P.O. Box 8292 Fort Collins, Colorado 80526 (303) 482-2125 April 3, 1992 Russell B. Sanford Attorney at Law 125 S. Howes, Suite 1100 Fort Collins, CO 80521 Re: Laurie Subdivision pipeline Dear Russ: As we discussed earlier today, the Applewood Water Association Board of Directors met yesterday to respond to the proposal you made on behalf of Dr. Musselwhite, joined in by Mr. Spencer, at our previous meeting on March 26th. This proposal was, in essence, to replace only that portion or our irrigation ditch crossing the Subdivision with a pipeline. Before discussing our response, I would like to clarify the law regarding our right to an undisturbed ditch. Your position has been that your client has the right to change the location of our ditch and pipe it without our approval so long as the quantity and quality of the irrigation water remain the same. You have cited the Brown and Stuart cases in support of this position. In doing so you have ignored the leading case of Valley Development Co. v. Weeks, 147 Colo. 591 (1961). This case is directly on point, references the Brown and Stuart cases and specifically rejects your interpretation of them. Under the Valley Development holding, your client has no right to alter our ditch without our approval. In our conversation you acknowledged familiarity with the Valley Development case. In view of that I am puzzled by your renewed threat to sue us if we reject your client's offer. We would undoubtedly prevail in such an action and would expect to recover our attorney's fees and costs. You could also be subject to a Rule 11 sanction for signing a meritless complaint. Your client should also be aware that any attempt to interfere with our ditch in order to create a fait accompli will result in our immediate filing of an action for a declaratory judgment and injunction. That said, your client's offer falls short of the Board's requirements. It will not approve a pipeline across Laurie Subdivision unless your client also pays for an extension of the line down the existing ditch to the siphon crossing Shields Street. In exploring this route before, the owners of the property immediately to the south objected unless they were granted access to their property through the Subdivision. If your client remains unwilling to provide that access or cannot negotiate a satisfactory agreement with the second owner to the south, we would agree to pursue a private condemnation proceeding for a pipeline. In that case, your client would bear the additional cost of the proceeding plus any damages assessed for the taking. Since condemnation could not be completed before the beginning of this year's irrigation season, installation of the pipeline may have to proceed in two stages. The first stage would be the installation of that portion of the line crossing the Subdivision, ending in a drop structure. We would agree to abandon that part of the currently platted pipeline easement running along the southern boundary of the Subdivision to Shields Street when it is no longer needed. An additional easement or easements for access will be necessary to service the inlet structure for the pipeline and the drop structure, if installed. This is the bare outline of our offer. We will have additional requirements, and a detailed set of plans, specifications and a construction timetable will have to be generated, tied to the development contract with the City of Fort Collins. If a two -stage installation procedure is necessary, additional arrangements will be required to assure completion. We look forward to further negotiations. Sincerely, M:It ark W. iss President, Applewood Water Association, Inc. cc. Board of Directors William Brown Sherry Albertson -Clark Paul Eckman Ray Spencer Dennis Donovan 590 RAY V. PEOPLE [ 147 Colo. in 41 A.L.R. (2d) 266, under an introductory comment which reads as follows: "Trial judges in criminal cases generally are extremely careful as to communications between the jurors and themselves outside of court and after submission of a case to them. In many cases a contention that the judge had such communications with the jurors as to have a prejudicial effect or otherwise constitute reversible er- ror, has been rejected." We further note that other decisions of this court have examined the communication in order to determine whether it was prejudicial. See Dill v. People, 94 Colo. 230. 29 P. (2d) 1035; Holland v. People, 30 Colo. 94, 69 Pac. 519. The communication here in issue does not dis- close that any prejudice whatever resulted to defendants and we must, therefore, reject the contention that any such communication between court and jury constitutes reversible error. 2. In support of their contention that the presence on the jury of the wife of a commissioned deputy sheriff prevented them from having a fair and impartial trial, defendants cite Tate v. People, 125 Colo. 527, 247 P. (2d) 665. [21 On this point the record reveals that the juror in question was subjected to searching questions regarding the admitted fact that her husband was a member of a merchant police force in Jefferson County. The specific question whether he had been commissioned as a deputy sheriff was not asked. Counsel did not pursue the sub- ject further, and being advised that the juror's husband was a police officer, the fact that he was also a deputy sheriff could have added nothing material to his decision as to whether he should challenge the juror as biased because of her husband's occupation. The disability of the juror who served in the Tate case was clear. There the juror was shown to be a deputy sheriff. This fact first appeared after the jury was se- lected. Counsel immediately challenged the juror. In April, '61 J VALLEY CO. V. WEEKS 691 holding that a deputy sheriff who owed allegiance to the sheriff, the prosecuting witness in the case, was neces- sarily disqualified, the court observed: " * * * Loyalty to his superior officer would undoubt- edly be expected to have its weight." In the instant case the juror was shown to be a teacher, and to have disclosed the facts in response to questions. Having mentioned that her husband was a police officer she was not required to volunteer facts, of which her knowledge may have been limited, as to the source of his commission. The judgment is affirmed. MR. JUSTICE MOORE and MR. JUSTICE SUTTON concur. f No. 19,139. ( VALLEY DEVELOPMENT CO., ET AL. v. ROSE L. WEEKS. \` \ (884 P. 12d1 730) I Decided September 5,-1464. - ----- ------ ------ Action for damages for interference with easement in ditch for conveyance of irrigation water. Judgment for plaintiff. Affirmed in Part, - Reversed in Part. 1. WATER RI(;IITS — Easetnent—Inter%erence—Retrtedy--Coieditio)is. Where plaintiff had a vested right in an irrigation ditch across defendants' lands and to have water flow therein, such right could not be interfered with without her consent, but once such interference had been accomplished by alteration of the location 1 of such ditch, the court had equitable power to prescribe condi- tions which defendants were required to perform to insure delivery of water to plaintiff's lands. 2. DAMAGES --Duly to Atitigate-Reasonable Preoaution—Deterini- 0 �J 592 VALLEY CO. V. WEEKS [ 147 Colo. nation. The rule is that one may not recover damages for an injury which by reasonable precaution or exertion he might have avoided; what constitutes reasonable precaution is for the trier of facts to determine upon the evidence. 3. Mental Aneuiah—When Recoverable. Under ordinary cir- cumstances there can be no recovery in tort for mental anguish suffered by a plaintiff for injury to his property, either real or personal, in the absence of evidence that such injury was inspired by fraud, malice or like motives. 4. Mental Anguish — When Recoverable — Classification. The rule relating to damages for mental suffering is divided into three categories: (a) pure tort where no contractual relation exists and the acts complained of are attended with wilful and wanton conduct; (b) breach of contract where the acts attend- ing such breach are accompanied by wilful, insulting or wanton conduct, in which category damages may be recovered for mental suffering alone; (c) where breach is unintentional and unaccompanied by wanton, wilful or insulting conduct, damages for mental suffering are not recoverable. Error to the District Court of Arapahoe County, Hon. Harold H. Harrison, Judge. Mr. CLARENCE L. BARTHOLIC, Mr. RoaERT L. BARTHOLIC, for plaintiffs in error. Messrs. DAWSON, NAGEL, SHERMAN & HOWARD, Mr. RAYMOND J. TURNER, for defendant in error. En Banc. MR. JUSTICE SUTTON delivered. the opinion of the Court. WE will refer to Weeks, plaintiff below and defendant in error here, as "Weeks"; and to plaintiffs in error Val- ley Development Company, et al., as "Valley" or defend- ants, unless necessary to refer to them by name. Weeks sought an injunction and damages against Val- ley, its officers and numerous other defendants. She alleged that she was the owner of certain farm lands (located north of Centennial Race Track in Arapahoe April, '61 J VALLEY CO. V. WEEKS 593 County, Colorado) and further that she was the owner of a certain water right as well as a ditch right in the Brown Ditch, which supplies her lands with irrigation water. The Brown Ditch at one time traversed the prop- erty owned or previously owned by Valley, and Weeks with others had an easement for the ditch across that property. Valley subdivided and platted this tract. In doing so it determined that the open ditch to Weeks' land would have to be moved and placed underground in a conduit to make the subdivision feasible. It is al- leged that Valley, knowing of Weeks' legal rights to the water and ditch, intentionally destroyed and relocated the ditch with the consent of several of the other ditch owners but without the knowledge or consent of Weeks. The record shows that Valley erected houses on the ground where the ditch was formerly located and sold them to purported good faith purchasers. Weeks complained in the trial court that she had been deprived of her irrigation water, water right, ditch .and ditch right, and had been damaged by a crop loss in 1957 and by pain and suffering. The prayer of the complaint was for an injunction requiring the defendants to restore the ditch to its for- mer location; that her water right (denied by Valley in its answer) be established in her; that Valley and the other defendants be enjoined from further interference with the water right; and for damages both general and exemplary. The case was tried to the court without a jury. Find- ings of fact and judgment were entered against the de- fendants. The trial court found that it was impossible to restore the ditch to its former course by mandatory in- junction because innocent persons had purchased houses from defendants which defendants had constructed on the land where the ditch formerly existed. It did, how- ever, grant other equitable relief (not in issue here) and damages both for loss of Weeks' crops in the amount of $525 and for her pain and suffering in the amount of • 594 VALLEY CO. V. WEEKS [ 147 Colo. $3500, resulting from the alleged intentional invasion of Weeks' property right. The court denied exemplary damages, finding no willful, wanton, evil or malicious disregard on the part of the defendants. Motion for a new trial was dispensed with and the defendants are here by writ of error seeking a reversal. It is urged that defendants had a right to relocate the ditch without Weeks' consent so long as an adequate substitute was provided and that in finding to the con- trary the court was in error. Defendants contend that the substitute was adequate and hence the findings of damages for the loss of crops and for pain and suffer- ing were not warranted. ' Our first consideration is directed to whether the de- fendants had a legal right to destroy the vested property right of plaintiff by providing a substitute deemed ade- quate by them without securing her consent. To support their contention the defendants place great reliance upon the case of Brown v. Bradbury (1941) , 110 Colo. 537, 135 P.. (2d) 1013, which found in favor of the defendant under somewhat similar facts and in so finding quoted from the earlier case of Stuart v. Jefferson County (1914), 25 Colo. App. 568, 139 Pac. 577. It was said in Stuart that "Davis had neither a legal nor an equitable right, as against the plaintiff, to destroy * * * said ditch, or to substitute a buried pipe therefor, without providing for plaintiff other adequate and satisfactory means for receiving his water from said carrier so that his lands could be advantageously irrigated as prior to said change, * * * ." Upon its face Brown would appear to approve the right asserted here, a right in conflict with well settled property law, not only in other jurisdictions, but in our own as well. However, we think that to attribute such result to Brown is to misconstrue its true meaning and intent, for there the trial court under its equitable pow- ers imposed conditions on the removal fully recognizing the Stuart case doctrine, part of which it cited as set April, '61 ] VALLEY CO. V. WEEKS 59 '—) forth above. This court merely held that on the record presented there it would not disturb an equitable judg- ment. Cherrichigno v. Dickinson (1917), 63 Colo. 443, 167 Pac. 1178, clearly states the rule that an owner of a servi- ent tenement has no right for his own convenience or profit to change the location of a ditch, or to do any- thing which will interfere with the vested rights of a dominant tenement therein, without the consent of that party. And, in Kane v. Porter (1925), 77 Colo. 257, 235 Pac. 561, the contention that one may destroy another's property was strongly rejected. There it was said: "Defendants, however, say that the cost of the new ditch would be but a trifle and they invoke the maxim de minimis non curat lex. That maxim does not apply to the case of positive and wrongful invasion of another's property. 18 C.J. 481. One might as well say that he may knock down my garden fence because it isn't a very good one and I can make another for $3." We believe that Cherrichigno and Kane correctly set forth the applicable law except where a trial court has, under its equitable powers in cases involving easements, determined the conditions under which such easement may be altered where other equities have arisen. In cases of the latter type the Brown doctrine is applicable. It will be noted that -even in Stuart, supra, the court speaks frequently of the "vested rights" of the ditch owner and that any such relocation of the ditch must be to the "satisfaction" of that party. This word was per- haps not emphasized as much as needed for clarity in the final holding of the case, but it was clearly indi- cated throughout the opinion. A careful study of the Brown opinion leads to the con- clusion that it is not unreconcilable with precedent. It will be noted that there the plaintiff's rights, though the location was altered, were not in reality forfeited. He obtained equitable relief very similar to that in the in- stant case. The court there, as here, merely declined to • :7 596 VALLEY CO. V. WEEKS [ 147 Colo. order the ditch replaced in its original location after other equities intervened. The result was proper, but the reason misleading, and while the present defendants have been misled by their reliance upon it, they may not insist upon their own interpretation as the basis of their responsibility to the plaintiff. 111 The trial court was correct in holding that We a right that interference and alteration had been accomplished, the trial court had the equitable power to determine what should be done about it. We next consider whether the trial court erred in find- ;. ing that Weeks was damaged to the extent of $525.00 for crop loss. The defendants urge that the finding was not war- ranted for Weeks herself testified that she neither , planted nor attempted to plant a crop during thc,. ir.-iga- tion season in 1957. From the record it appears that crops had been raised prior to 1957 and subsequent to that year. Weeks' position is that knowing she had no water in 1957 at planting time due to defendant's wrong- ful acts, nothing but a small amount of hay was raised; that it was her duty to mitigate the damages by avoiding the expense of seed and labor upon the mere hope that water might later be forthcoming; that such useless ex- penditures would have aggravated the damages. In this she is correct. [21 The rule is well settled that one may not recover damages for an injury which he might by reasorrablE precautions or exertions have avoided. Mack v. Jackson (1886) , 9 Colo. 536, 13 Pac. 542; Denver v. Noble (1951), 124 Colo. 392, 237 P. (2d) 637. What constitutes a "red- sonable" precaution is for the trier of facts to determine upon the evidence. Upon the record before us the trial court was justified in finding for Weeks on this element of damage. April, '61 J VALLEY CO. V. WEEKS 597 The next question is whether the trial court erred in awarding damages for pain and suffering to Weeks as a result of her invaded property rights without a physical touching of her person. [31 The answer to this problem is not of easy solution for it lies within one of those fields of jurisprudence where a wide divergence of authority exists with various shades of interpretation and application of the law. See 28 A.L.R. (2d) 1070, et seq., and see State v. Baltinrore Transit Co. (1951), 197 Md. 528, 80 A. (2d) 13, 28 A.L.R. 1062. Without detailing at length various opinions in the above citations, suffice it to say that under ordinary cir- cumstances there can be no recovery in tort for mental anguish suffered by a plaintiff in connection with an injury to his property, either real or personal. Where, however, the act occasioning the injury to property was inspired by fraud, malice, or like motives, mental suf- fering is often held to be a proper element of damage. In other words, in the usual case the complaint and proof must show breach of a duty to be the efficient cause of the injury averred. There are, of course, excep- tions to the doctrine. For example, "* * * 'where the wrongful act complained of is the proximate cause of the injury * * * and where the injury ought in the light of circumstances to have been contemplated as a natural and probable consequence thereof, the case falls within the exception and should be left to the jury.' This is the same doctrine as was followed in the case of Palsgraf v. Long Island R.R. Company, supra." State, supra. Insult or contumely also are elements that have resulted in lia- bility where there has been merely an injury to property or its possession as distinguished from one to the person. State, supra, and Dawsey v. Newton (1943), 244 Ala. 661, 15 So. (2d) 271. The latter case was one for dam- ages for trespass where the defendants had knowingly entered upon plaintiff's lands and cut down certain oak trees. The plaintiff alleged statutory damages as well as asserting a right to be compensated for "his mental pain EN 598 VALLEY CO. V. WEEKS [ 147 Colo. and anguish." Mr. Justice Livingston speaking for the court held that the plaintiff was entitled to nominal dam- ages and that "When a trespass to property is committed under circumstances of insult or contumely (as there where defendants had been forewarned) mental suffer- ing may be compensated for, when it is a proximate, con- sequence." (Citing four earlier Alabama cases.) The court said: "We are persuaded that under the evidence in this case the question of plaintiff's mental suffering was prop- erly left to the determination of the jury * * Notable among the exceptions to the general rule are those cases dealing with dead bodies and graves (see 12 A.L.R. 342, 113 A.L.R. 1128, 172 A.L.R. 554, 17 A.L.R. (2d) 770); and, of course, those dealing with miscar- riages induced by various causes are of common knowl- edge. Allegation and proof of a willful or wanton tort as distinguished from a negligent injury, seems to be the most common distinction in the authorities. 28 A.L.R. (2d), supra. In cases like Dawsey, supra, the liability has been sustained because a defendant or his agent had made a forcible trespass upon realty occupied by the plaintiff under such circumstances of insult or contumely that the mental disturbance or fright of the plaintiff was a condition to be reasonably anticipated. In Sager v. Sisters of Mercy (1927) , 81 Colo. 498, 256 Pac. 8, de- fendants' acts were held actionable where the plaintiff's personal belongings were taken from her dwelling and wrongfully destroyed, thus applying the same rule to personal property. Unfortunately, in Sager the court did not point out that liability was incurred due to the abu- sive and unjustified acts of the defendants. There malice in law was implied by defendants' unwarranted conduct. It is well to point out here that such cases differ from those involving breach of an express or implied con- tract where liability has been imposed for pain, suffering, invasion of privacy, or humiliation. For example, see Westesen v. Olathe State Bank (1925) , 78 Colo. 217, 240 April,'61 ] VALLEY CO. V. WEEKS 599 Pac. 689 (promised credit denied after acted upon); Fitzsimmons v. Olinger Mortuary Assoc. (1932) , 91 Colo. 544, 17 P. (2d) 535 (photographing and publicizing re- moval of a corpse from a chartered plane hired by the mortician) ; McCreery v. Miller's Groceteria, Company, et al. (1936), 99 Colo. 499, 64 P. (2d) 803 (unauthorized display of a personal photograph). [4] In Hall v. Jackson (1913) , 24 Colo. App. 225, 134 Pac. 151, damages relating to mental pain and suffering are classified in three categories: (A) Cases of pure tort, where no contractual relation exists and the acts complained of are attended with willful and wanton con- duct; (B) Cases where a breach of contract has occurred and acts attending such a breach are accompanied by willful, insulting or wanton conduct (in these two cate- gories substantial damages may be recovered for mental suffering alone); and (C) Cases of mere passive breach of contract by one not engaged in a business of a quasi public nature, where the breach is unintentional and not accompanied by wanton, willful or insulting acts. In such case damages for mental suffering are not recover- able. Hall also points out that "It may be said with safety that at common law no action could be maintained to recover for mental suffering in the absence of bodily injury occasioning such suffering. The law has moved from that position far forward today as the authorities referred to testify. Turning now to the facts and findings in the instant case. First it appears that although Weeks was under treatment for a nervous condition supposedly brought on by defendants' alleged intentional conduct, the record suggests that treatment for such ailment was begun in 1955 following the death of her husband and when de- fendants sought to condemn a sewer line across her prop- erty. The ditch matter did not arise until 1957, and Weeks' testimony was that she did not know of the de- struction of the ditch until March of that year. • 600 VALLEY CO. V. WEEKS [ 147 Colo. Secondly, as mentioned earlier, the trial court found no willful and wanton conduct on the part of defendants, thus the case does not fall within either the first category of Hall, supra, or within any of the other exceptions noted. This finding, based upon disputed evidence, will not be disturbed on review. A fortiori, in the absence of such a finding, no basis for the award of such damages appears, hence it was error for the trial court to award damages in any amount to plaintiff for mental pain and suffering. Lastly, defendants urge that the court should not have granted Weeks judgment against individual defendants who were officers of the corporation, but should have limited liability, if any, to Valley. In Snowden v. Taggart (1932), 91 Colo. 525, 17 Pae. (2d) 305, it was held that the agents of a corporation who commit a tort while acting for the corporation are personally liable, and may not escape liability by hiding behind the corporate shield. Though the trial court found these individual defendants were not guilty of willful or wanton conduct, it did not find them free of fault. In this state of the record the court was justified in finding the individual defendants jointly and severally liable with the corporation. The parties having indicated in their oral argument before this court that Weeks is now willing to accept the substitute easement, no further discussion is had thereon. We find in this connection that the record supports the conditions attached and the burdens imposed by the trial court respecting the liability of defendants for the future use and maintenance of the substitute conduit. No other matters constituting error appearing in the record, the judgment is reversed as to the award of the $3500.00 for pain and suffering, in all other respects it is affirmed. Mr. Justice Moore and Mr. Justice McWilliams con- uur in the result. Mr. Justice Day not participating. April, '61 j SCHLITTENHARDT v. BERNASKY 601 No. 19,318. TED SCHLITTENHARDT V. J. L. BERNASKY. (364 P. 12d1 A6) �. Decided September 6, 1861. Action to recover agreed price for plowing land, to which defendant counterclaimed for conversion of chat- h.` tels. Judgment for plaintiff. Affirmed in Part, Reversed in Part. 1. CONvkRsioN—Chattels—Detnuted—Refusal to Deli ver—Conditiunb. Where an unlawful and wholly unjustified seizure of chattels is shown, the doctrine of qualified refusal to surrender has no application. 2. Chat tels—�Se:izare--Clain —Do Pita ad for Palltnant-17111nwful Gott versioe—liividenoo. Evidence that plaintiff took possession of chattels and urbitrurlly demanded payment of pre-oxistinR debt before owner would be permitted to take possession there- of, amounted to an unlawful conversion of such chattels. Error to the District Court of Kit Carson County, Hon. Austin Hoyt, Judge. Mr. EDWARD C. HASTINGS, Mr. WALTER BOHM, for plain- c!'Jl tiff in error. Messrs. THOMAS & THOMAS, for defendant in error. In Department. Opinion by MR. JUSTICE MOORE. PLAINTIFF in error was defendant in the trial court and defendant in error was plaintiff. The parties will be re- ferred to as they appeared in the trial court.