Colorado § 38-1-102 - Petition - contents - parties.

§ 38-1-102. Petition - contents - parties.

(1) In all cases where the right to take private property for public or private use without the owner's consent or the right to construct or maintain any railroad, spur or side track, public road, toll road, ditch, bridge, ferry, telegraph, flume, or other public or private work or improvement which may damage property not actually taken is conferred by general laws or special charter upon any corporate or municipal authority, public body, officer or agent, person, commissioner, or corporation and the compensation to be paid for, in respect of property sought to be appropriated or damaged for the purposes mentioned, cannot be agreed upon by the parties interested; or, in case the owner of the property is incapable of consenting, or his name or residence is unknown, or he is a nonresident of the state, it is lawful for the party authorized to take or damage the property so required to apply to the judge of the district court where the property or any part thereof is situate by filing with the clerk a petition, setting forth, by reference, his authority in the premises, the purpose for which said property is sought to be taken or damaged, a description of the property, the names of all persons interested as owners or otherwise, as appearing of record, if known, or, if not known, stating that fact, and praying such judge to cause the compensation to be paid to the owner to be assessed. If the proceedings seek to affect the property of persons under guardianship, the guardians or conservators of persons having conservators shall be made parties defendant. Persons interested whose names are unknown may be made parties defendant by the description of the unknown owners. In all such cases an affidavit shall be filed by or on behalf of the petitioner, setting forth that the names of such persons are unknown.

(2) In cases where the property is sought to be taken or damaged by the state for the purpose of establishing, operating, or maintaining any state house or charitable or other state institution or improvement, the petition shall be signed by the governor or such other person as he directs or as is provided by law.

(3) Under the provisions of this section, private property may be taken for private use, for private ways of necessity, and for reservoirs, drains, flumes, or ditches on or across the lands of others for agricultural, mining, milling, domestic, or sanitary purposes.

Source: G.L. § 1059. G.S. C. § 238. L. 1885: p. 200, § 1. L. 01: p. 173, § 1. R.S. 08: § 2416. C.L. § 6312. CSA: C. 61, § 2. CRS 53: § 50-1-2. L. 55: p. 368, § 1. C.R.S. 1963: § 50-1-2. L. 64: p. 265, § 154.

Cross references: For condemnation by tax exempt agency, see § 39-3-134; for taking private property for private use, see § 14 of art. II, Colo. Const.; for taking property for public use, see § 15 of art. II, Colo. Const.; for the right-of-way for ditches and flumes, see § 7 of art. XVI, Colo. Const.

ANNOTATION

I. General Consideration.

I. GENERAL CONSIDERATION.

Law reviews. For comment on City of Thornton v. Farmers Reservoir & Irrigation Co., 194 Colo. 526, 575 P.2d 382 (1978), appearing below, see 56 Den. L. J. 625 (1979). For article, "Access to Mineral Lands in Colorado", see 11 Colo. Law. 870 (1982).

Principal object of condemnation proceedings is to ascertain the price which a petitioner must pay for the land which he desires to acquire, and, until that determination is made by a board or jury and the same has been approved by a court, it cannot be said that the rights of the parties have become fixed or determined. Town of Glendale v. City & County of Denver, 137 Colo. 188, 322 P.2d 1053 (1958).

Proceedings can only be instituted under particular statutes which warrant them. Colo. Midland Ry. v. Ruedi, 2 Colo. App. 202, 29 P. 1034 (1892).

This section contemplates institution of proceedings by one corporation against another as well as by a corporation of a public character against the property of a private individual. San Luis Land, Canal & Imp. Co. v. Kenilworth Canal Co., 3 Colo. App. 244, 32 P. 860 (1893).

Power not assertable by federal oil and gas lessee. The power of condemnation prescribed by this section may not be asserted by a federal oil and gas lessee. Coquina Oil Corp. v. Harry Kourlis Ranch, 643 P.2d 519 (Colo. 1982).

Power not assertable by owner of unpatented mining claim. Precious Offer. Mineral Exch. v. McLain, 194 P.3d 455 (Colo. App. 2008).

Good faith offer prerequisite to failure to agree upon purchase price. The prerequisite of a failure to agree upon the purchase price for the property sought to be condemned generally requires only that the condemning authority make a reasonable good faith offer to reach an agreement with the owner of the property for its purchase. City of Thornton v. Farmers Reservoir & Irrigation Co., 194 Colo. 526, 575 P.2d 382 (1978); Bd. of County Comm'rs, v. Blecha, 697 P.2d 416 (Colo. App. 1985); City of Holyoke v. Schlachter Farms R.L.L.P., 22 P.3d 960 (Colo. App. 2001).

Where the negotiator for the plaintiff stated a price for land to the president of defendant association, who informed board of directors of offered price and all refused to accept it, this constituted failure to agree which was a condition precedent to jurisdiction of the trial court in a condemnation proceeding brought pursuant to this section. Old Timers Baseball Ass'n v. Hous. Auth., 122 Colo. 597, 224 P.2d 219 (1950).

Requirement of good faith negotiations under this section is not a restriction on the court's subject matter jurisdiction but is merely an element of the claim for relief. Minto v. Lambert, 870 P.2d 572 (Colo. App. 1993).

Trial court did not err in finding that the good faith negotiation requirement under subsection (1) was satisfied. Here, record supports trial court's determination because: (1) Petitioner made two separate offers, both of which exceeded the appraisal, (2) respondents declined to accept either offer, although they had been afforded a reasonable time in which to do so, and (3) their only counteroffer was substantially greater than either of petitioner's offers and the only appraisal. Sheridan Redev. Agency v. Knightsbridge Land Co., 166 P.3d 259 (Colo. App. 2007).

Property owner has privilege of controverting petitioner's right to condemn. Kaschke v. Camfield, 46 Colo. 60, 102 P. 1061 (1909).

Thereafter, petitioner has burden to maintain right by proper proofs. When property owner controverts petitioner's right to condemn, the burden is upon the petitioner to maintain his right by proper proofs. Kaschke v. Camfield, 46 Colo. 60, 102 P. 1061 (1909).

Where owner fails to make contest, petitioner's right to condemn deemed admitted. Where the owner fails to make a contest, in the proper manner and at the proper time, the right in the petitioner to condemn will be deemed admitted, leaving the amount of damages to be awarded as the sole matter in dispute. Kaschke v. Camfield, 46 Colo. 60, 102 P. 1061 (1909).

Petitioner must prove failure to agree upon compensation for land taken. The burden of proof is upon the petitioner in a condemnation action to establish by competent evidence that there was a failure to agree upon the compensation to be paid for land sought to be taken or damaged. Stalford v. Bd. of County Comm'rs, 128 Colo. 441, 263 P.2d 436 (1953); City of Thornton v. Farmers Reservoir & Irrigation Co., 194 Colo. 526, 575 P.2d 382 (1978).

Failure to agree on compensation prerequisite to institution of proceedings. Failure to agree upon compensation to be paid for land sought to be taken or damaged is a condition precedent to the right to institute and maintain proceedings at all and is clearly jurisdictional. Mulford v. Farmers Reservoir & Irrigation Co., 62 Colo. 167, 161 P. 301 (1916); Stalford v. Bd. of County Comm'rs, 128 Colo. 441, 263 P.2d 436 (1953); Welch v. City & County of Denver, 141 Colo. 587, 349 P.2d 352 (1960).

Effect of owner's silence or failure to propose counter offer. If the property owner remains silent or rejects the offer without making an acceptable counter-offer, a condemnation action may be instituted. City of Thornton v. Farmers Reservoir & Irrigation Co., 194 Colo. 526, 575 P.2d 382 (1978).

Agreement precludes institution of proceedings. Where an agreement was reached between the state, which was the condemnor, and the city, which was the landowner, the state is not compelled to institute condemnation proceedings because, by enacting an ordinance authorizing the use of park lands for highway purposes, all was accomplished by condemnation proceedings. Welch v. City & County of Denver, 141 Colo. 587, 349 P.2d 352 (1960).

Order for temporary possession not reviewable by writ of error. An order for temporary possession is interlocutory and not a final judgment or final determination of the action; thus are not reviewable by writ of error. Town of Glendale v. City & County of Denver, 137 Colo. 188, 322 P.2d 1053 (1958).

Doctrines of claim preclusion and issue preclusion apply, and condemnees cannot revisit the valuation of the property acquired as determined in earlier condemnation proceedings in a subsequent civil action claiming a taking without just compensation. The issue of damages for the taking of the acquired property was actually and necessarily adjudicated in the prior condemnation proceeding where the condemnees had a full and fair opportunity to litigate the issue. Wall v. City of Aurora, 172 P.3d 934 (Colo. App. 2007).

Record supports trial court's determination that corporation engaged in good faith negotiations. Requirement of good faith negotiation under subsection (1) satisfied where condemning authority makes a reasonable good faith offer to reach an agreement with property owner and allows owner sufficient time to respond. Here, condemning authority made several offers, some of which exceeded properties' appraised values, landowners did not accept offers, although they had a reasonable time to do so, and landowners' counteroffers demanded substantially more than condemning authority's offers and properties' appraised values. Sinclair Transp. Co. v. Sandberg, 228 P.3d 198 (Colo. App. 2009), rev'd on other grounds sub nom. Larson v. Sinclair Transp. Co., 2012 CO 36, 284 P.3d 42.

Applied in Colo. Midlands Ry. v. Croman, 16 Colo. 381, 27 P. 256 (1891); Town of Lyons v. City of Longmont, 54 Colo. 112, 129 P. 198 (1912); Otero Irrigation Dist. v. Enderud, 122 Colo. 136, 220 P.2d 862 (1950); Rabinoff v. District Court, 145 Colo. 225, 360 P.2d 114 (1961); Buck v. District Court, 199 Colo. 344, 608 P.2d 350 (1980); Direct Mail Servs., Inc. v. Colo., 557 F. Supp. 851 (D. Colo. 1983), aff'd, 729 F.2d 672 (10th Cir. 1984); Thornton Dev. Auth. v. Upah, 640 F. Supp. 1071 (D. Colo. 1986).

II. PROPERTY SUBJECT TO EMINENT DOMAIN.

A. Private Property.

B. Way of Necessity.

C. Property Devoted to Public Use.

A. Private Property.

Property held by corporation deemed private. Property held by public corporation which is not devoted to, or needed for, a public use, is as much private property as though held by an individual. Denver Power & Irrigation Co. v. Denver & R.G.R.R., 30 Colo. 204, 69 P. 568 (1902).

B. Way of Necessity.

Common-law way of necessity is easement founded upon implied grant. Where one party conveys property, he also conveys whatever is necessary to the beneficial use of that property by which it is assumed that, when a party conveys property, he also conveys whatever is necessary to the beneficial use of that property. Crystal Park Co. v. Morton, 27 Colo. App. 74, 146 P. 566 (1915); Minto v. Lambert, 870 P.2d 572 (Colo. App. 1993).

Way of necessity arises only in favor of grantee over grantor's land, and not over the lands of a stranger. Crystal Park Co. v. Morton, 27 Colo. App. 74, 146 P. 566 (1915).

Necessity does not create right, as it always originates in some grant or change of ownership. Crystal Park Co. v. Morton, 27 Colo. App. 74, 146 P. 566 (1915).

Section 14 of article II of the state constitution is a general inhibition against taking private property for private use without the consent of the owner, but with certain exceptions. The exceptions are constitutional grants of rights and powers not existing before the adoption of the constitution, namely, the right to take private property for private use, without the consent of the owner, in the instances therein enumerated. Crystal Park Co. v. Morton, 27 Colo. App. 74, 146 P. 566 (1915).

Private and public ways of necessity distinguished. Private ways of necessity differ from public ways of necessity only in the fact that they are private; private ways of necessity refer particularly to, and include, passageways or roadways which are indispensable to the practical use of the property for which they are claimed. Crystal Park Co. v. Morton, 27 Colo. App. 74, 146 P. 566 (1915).

Private ways of necessity are not limited to ways desired for agricultural, mining, milling, domestic, or sanitary purposes, as are those for reservoirs, drains, flumes, and ditches. Crystal Park Co. v. Morton, 27 Colo. App. 74, 146 P. 566 (1915); Childers v. Quartz Creek Land Co., 946 P.2d 534 (Colo. App. 1997).

When private corporation may condemn land for private way of necessity. A private corporation may condemn land for a private way of necessity where the nature of its business and the situation of its property require the way, and where, under like conditions, other persons not corporate may condemn. Crystal Park Co. v. Morton, 27 Colo. App. 74, 146 P. 566 (1915).

Courts may determine what constitutes private way of necessity in any particular case, unless restrained by the general assembly. Crystal Park Co. v. Morton, 27 Colo. App. 74, 146 P. 566 (1915).

Private way of necessity may be condemned when the need is reasonably necessary and the common law or other legal remedy does not provide a present enforceable legal right to an alternate mode of access that is reasonable and practical. Minto v. Lambert, 870 P.2d 572 (Colo. App. 1993).

State highway department cannot condemn property for a private way of necessity. Although state highway department has express statutory authority to condemn property for local service roads and for highway construction, the department has no statutory authority to "stand in the shoes" of a private landowner and condemn a private way of necessity which the landowner has the right to assert under this section. Dept. of Hwys. v. Denver & Rio Grande W.R., 789 P.2d 1088 (Colo. 1990).

The phrase "private ways of necessity" in subsection (3) does not include natural gas pipelines. Phrase is limited to passageways, such as paths, bridges, and tunnels, and roadways that provide legal access connecting landlocked property to a public road. Petitioners do not seek to condemn an easement to provide such access but rather to construct and maintain an underground natural gas pipeline and related equipment and facilities. As such, petition did not identify a purpose for which taking property is permitted under this section and section 14 of article II of the state constitution. Akin v. Four Corners Encampment, 179 P.3d 139 (Colo. App. 2007).

If the defendant pleads the existence of an alternate route of private access across property not owned by the defendant, defendant has the burden of establishing the existence of an acceptable alternate route and of proving that plaintiffs have the present enforceable legal right to use it. West v. Hinksmon, 857 P.2d 483 (Colo. App. 1992).

Defendant should be permitted to show that an alternate route across defendant's property exists that would be less damaging than that proposed by plaintiff. West v. Hinksmon, 857 P.2d 483 (Colo. App. 1992).

When a petitioner seeks to condemn private way of necessity for access to property it wishes to develop in the future, it must demonstrate a purpose for the condemnation that enables the trial court to examine both the scope of and necessity for the proposed condemnation, so that the burden to be imposed upon the condemnee's property may be ascertained and circumscribed through the trial court's condemnation order. Glenelk Ass'n v. Lewis, 260 P.3d 1117 (Colo. 2011).

Condemnor failed to articulate a concrete development proposal for the subject property nor did he sufficiently engage the county's land use approval process prior to initiating the condemnation proceeding. Record fails to clarify condemnor's intended use of the property or size of the planned road with sufficient specificity to allow trial court to analyze necessity of requested easement. Condemnor's failure to sufficiently articulate development plan prevented trial court from determining scope of proposed condemnation sufficiently to determine scope of burden to be imposed upon the property to be condemned. Given evidentiary shortcomings in the record, trial court correctly concluded that it could not determine whether particular way of necessity requested by condemnor was indispensable and, therefore, trial court correctly denied condemnor's request for immediate possession and dismissed the condemnation petition. Glenelk Ass'n v. Lewis, 260 P.3d 1117 (Colo. 2011).

Trial court's determination in declaratory judgment action brought under constitutional counterpart of subsection (3) of this section, § 14 of article II of the state constitution, that defendants failed to rebut plaintiff's showing of an entitlement to a private way of necessity is not clearly erroneous. Trial court held plaintiff may condemn private way of necessity across defendants' property pursuant to constitutional section. Trial court's determinations that plaintiff proved that a way of necessity is reasonably necessary and that defendants did not prove, in any concrete fashion, that plaintiff has either an alternate route of access or a present enforceable legal right to use one are not clearly erroneous. Tieze v. Killam, 179 P.3d 10 (Colo. App. 2007).

C. Property Devoted to Public Use.

Condemnation of property already devoted to public use limited. Property already devoted to a public use cannot be taken for another in such manner or to such an extent that the use to which it is devoted will be wholly defeated or superseded, except where a public exigency requires that it be taken. Denver Power & Irrigation Co. v. Denver & R.G.R.R., 30 Colo. 204, 69 P. 568 (1902); Beth Medrosh Hagodol v. City of Aurora, 126 Colo. 267, 248 P.2d 732 (1932).

Land already appropriated as a right-of-way by a railroad company cannot be taken for a reservoir site to an extent which would totally deprive the railroad company of its use, unless a public necessity requires that it be taken. Denver Power & Irrigation Co. v. Denver & R.G.R.R., 30 Colo. 204, 69 P. 568 (1902).

Property held for a public use may be taken under the exercise of the right of eminent domain for the same or a different public use, when such taking does not materially interfere with the uses for which it is already held. Colo. E. Ry. v. Union Pac. Ry., 41 F. 293 (D. Colo. 1890); Union P. R. R. v. Colo. Postal Tel. Cable Co., 30 Colo. 133, 69 P. 564 (1902).

City may not condemn property already dedicated to public use. Beth Medrosh Hagodol v. City of Aurora, 126 Colo. 267, 248 P.2d 732 (1952).

III. THE PETITION.

A. Contents.

B. Sufficiency.

C. Parties.

A. Contents.

Petition to reflect property value or amount in controversy. The petition should show the value of the property sought to be taken or the amount involved in the proceeding. Colo. Cent. R.R. v. Allen, 13 Colo. 229, 22 P. 605 (1889).

Authority to condemn need not appear in petition. Kaschke v. Camfield, 46 Colo. 60, 102 P. 1061 (1909).

Definiteness required in description of condemned property. A petition that describes the right-of-way sought to be condemned with sufficient definiteness that any one versed in the nomenclature employed for the description of lands could locate it without any trouble, contains a sufficient description. Colo. Fuel & Iron Co. v. Four Mile Ry., 29 Colo. 90, 66 P. 902 (1901).

Although this section requires that a petition for condemnation provide a description of the property to be condemned and the purpose for which the property is to be condemned, it does not require the petitioner to provide a metes and bounds legal description of the property nor to specify the particular uses for which the property is to be condemned. Bly v. Story, 241 P.3d 529 (Colo. 2010).

Averments of shortest route practicable, etc., unnecessary. The petition for a way for an irrigating ditch, over the cultivated lands of another, need not aver that the way sought is the shortest and most direct route practicable, etc. Mulford v. Farmers' Reservoir & Irrigation Co., 62 Colo. 167, 161 P. 301 (1916).

Deficient petition to be dismissed. If the petitioner is unable to bring himself within the descriptio personae of some act from which he derives his rights, or if he fails to show that he is seeking to take private property and desires to ascertain its value in that proceeding, his petition must be dismissed. Colo. Midland Ry. v. Ruedi, 2 Colo. App. 202, 29 P. 1034 (1892).

Nature of easement. Unless the exact nature of an easement sought to be taken is fixed by law, petition must describe in detail the nature of the use to be made of the land so that the burden on the landowner can be accurately evaluated. State Dept. of Hwys. v. Woolley, 696 P.2d 828 (Colo. App. 1984).

Slope easement defined in State Dept. of Hwys. v. Woolley, 696 P.2d 828 (Colo. App. 1984).

B. Sufficiency.

Sufficient showing of public purpose in petition. In a proceeding to condemn a right-of-way for a telegraph line, a petition which alleges that petitioner is a corporation organized for the purpose of erecting and maintaining lines of magnetic telegraph in this state is sufficient to show that the line to be established is for public use. Union P.R.R. v. Colo. Postal Tel. Cable Co., 30 Colo. 133, 69 P. 564 (1902).

C. Parties.

Unknown interested parties. Where the names of interested parties are unknown, this section authorizes the institution of proceedings against the owner appearing of record or, if not known stating that fact; but this section does not and could not lawfully undertake to conclude the rights and transmute the title of the real owner without notice and having his day in court. Colo. E.R.R. v. Chicago, B. & Q. Ry., 141 F. 898 (8th Cir. 1905).

Shareholders necessary parties in mutual ditch corporation action. Pursuant to C.R.C.P. 19, the district court should join as parties to a condemnation action those shareholders in a mutual ditch corporation whose water rights would be affected by the condemnation action of the defendant as of the date of the initiation of the condemnation action and all parties in interest. Jacobucci v. District Court, 189 Colo. 380, 541 P.2d 667 (1975).