dissenting:
I respectfully dissent.
The parties to this action have stipulated that the land in question was held by Denver as trustee for park purposes only. Neither. C.R.S. ’53, 120-6-10, allowing for the purchase or condemnation of local service roads, nor 120-13-35 (11) which allows the state to acquire lands for state highway purposes by purchase, gift or condemnation authorize a trustee to dispose of trust land without the consent of the trust beneficiaries by way of sale or gift. Thus I believe the plaintiff in error (hereinafter called the plaintiff) to be correct when she urges that eminent domain proceedings are the only means by which her interests, and those of other citizens, can be taken from them.
Trust property is held, whether by an individual, pri*595vate corporation or municipal corporation, for the beneficiaries of the trust. Here the land was held for the benefit of this plaintiff and other citizens of Denver. They had a special interest in it as distinguished from the general public interest in public property. The fact that Denver holds this particular park land as trustee for park purposes only distinguishes it from lands acquired or held by Denver for general governmental or proprietary purposes. As to the latter types of lands the City Council, unless expressly restricted, could make a sale thereof to the state by city ordinance. As to its park trust property it was necessary to require the state to prove the necessity of the taking and the amount to be paid therefor in a court of law, where the trust beneficiaries could appear and be heard. It is their equitable right, not that of the mere legal title holder, which is involved.
This plaintiff’s rights have been guaranteed by Sections 3 and 6 of Art. II of the Colorado Constitution, which provide that all persons have the “inalienable” right “of acquiring, possessing and protecting property” (Sec. 5); and that “Courts of justice shall be open to every person, and a speedy remedy afforded for every injury to person, property or character; * * * ” (Sec. 6). Insofar as the statutes in question have deprived the plaintiff of her day in court they also violate the Fourteenth Amendment to the United States Constitution which expressly provides in part that “ * * *; nor shall any state deprive any person of life, liberty or property without due process of law, nor deny to. any person within its jurisdiction the equal protection of the laws.”
As I read it, Section 4, Article XX of the Colorado Constitution does not require the city to put the matter to a vote of the people as urged by plaintiff; such vote is required by that section only for “franchises” to streets, alleys and public places, and the use intended by the state is not within the terms of that section. However, section 5 of Article 3 of the Charter of the City and *596County of Denver as revised May 15, 1955, does provide that “No portion of any park now belonging to or hereafter acquired by the City and County shall be sold or leased at any time. * * Plaintiff correctly urges that this does not authorize a sale even to another public body for any purpose unless the matter is first submitted to a vote of the people, in whom rests the power to change this charter provision if they so wish. Of course, the prohibition against sale or lease must fall before the power of the state in condemnation proceedings as pointed out by the majority opinion, citing Town of Greenwood Village v. District Court (1958), 138 Colo. 283, 332 P. (2d) 210, and Burns v. Metropolitan District (1950), 325 Mass. 731, 92 N.E. (2d) 381. With this I agree but I cannot agree that the statutes or these cases stand for the proposition “that there are no limitations on the types of property that can be acquired by the State, through condemnation proceedings or otherwise, for highway purposes.” (Emphasis supplied.) Nor can I agree that any statute or case cited by the majority opinion relating to the necessity for prior negotiations for settlement, applies to a situation such as that before us, where court proceedings are required to overcome express charter prohibitions.
It might be that had proper proceedings been conducted in court it would have been determined that the taking was not necessary, or that it could have been done cheaper by widening the highway on both sides, or on the east side instead of the west side only, as was done. In all of these matters the plaintiff had the right to be heard in court, and that right has been denied to her.
The City and County of Denver should have been the first to recognize its responsibility to refrain from sitting as both judge and jury on its own trusteeship. While this writ of error was pending it should not have risked the possibility that it would have to take back what it had disposed of, or restore at the taxpayers’ expense the many trees destroyed by its action.
*597I would reverse the trial court and order proper condemnation proceedings through the courts to determine the necessity for the taking and the just compensation to be paid if the taking was justified.