Law School Case Brief
Pub. Serv. Co. v. Van Wyk, - 27 P.3d 377 (Colo. 2001)
Public Utility Commission decisions are not adjudications of property rights, and thus, do not preclude private rights of action seeking to adjudicate property rights or issues related to those rights.
In 1989, Public Utilities Commission (PUC) granted the application of petitioner Public Service Company of Colorado (PSCo) to increase the voltage from 115 to 230 kilovolts (kV) on its above-ground electric lines in Douglas County. In 1997, PSCo completed the upgrade, and upon its completion, respondents Mark Van Wyk and Erica Van Wyk, the owners and residents of property adjacent to the upgraded Daniels Park Line, filed a lawsuit against PSCo in Colorado state court, on behalf of themselves and all owners of property adjacent to or within 30hundred feet of the line. The Van Wyks' complaint asserted claims of inverse condemnation, trespass, nuisance, and negligence. The Van Wyks alleged that the Daniels Park Line was noisy, particularly during times of high humidity, rain, and snow. They further alleged that electromagnetic fields and noise created by the line have encroached upon their property, resulting in an unlawful taking of their property pursuant to Article II, section 15 of the Colorado Constitution. Furthermore, the Van Wyks argued that the noise, radiation, and electromagnetic particles from the upgraded line have entered their property, and thus, PSCo has committed a trespass. Finally, the Van Wyks alleged that PSCo acted intentionally to create a nuisance by transmitting 230kV of electricity through the line, thereby creating noise, an electromagnetic field, and radiation particles. Based on these claims, the Van Wyks sought money damages from PSCo. The district court dismissed the complaint, holding that the Van Wkys’ suit indirectly sought a reversal of PUC’s ruling, destroying the constitutional authority of PUC. The appellate court reversed the trial court’s decision and held that PUC’s approval of the upgrade of the Daniels Park Line was not dispositive of the Van Wyks' common law tort claims; thus, PUC's decision did not bar the Van Wyks from pursuing their claims against PSCo.
Did the PUC's approval of electric line upgrades by PSCo preclude claims by the Van Wyks and other adjacent property owners for inverse condemnation, trespass, and nuisance against PSCo?
The court affirmed that part of the court of appeals's decision that approved the Van Wyks' claims seeking to adjudicate property rights, and affirmed the ruling sustaining their nuisance claim. The court reversed in part, denying the claims for inverse condemnation and trespass, and remanded to allow litigation of the nuisance claim. The court held that PUC decisions were not adjudications of property rights, and thus, did not preclude private rights of action regarding property rights. The Court further held that while a plaintiff could not assert a claim for intentional nuisance unless a defendant's conduct was both intentional and unreasonable, the Van Wyks, in the case at bar, successfully stated such a claim.
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