Colorado § 38-1-111 - Possession pending appeal.

§ 38-1-111. Possession pending appeal.

In cases in which compensation is ascertained, if the owner of the property taken or affected prosecutes an appeal as provided by law and the Colorado appellate rules, the petitioner may pay into court or to the clerk thereof the amount of compensation ascertained and awarded for the use of the owner and shall thereupon be entitled to take possession and use the property taken or affected the same as if no such appeal had been taken. The money so deposited shall remain on deposit until such appeal has been heard and determined. If the owner elects to receive such money before the determination of said appeal, the appeal shall thereupon be dismissed so far as such owner is concerned. If the appeal is taken by the petitioner, the amount of compensation shall nevertheless be paid into court or to the clerk thereof for the use of the owner of the property condemned or affected before such petitioner has the right to take possession of and use said property so condemned or affected. Such compensation may be paid to such owner, at any time before the determination of such appeal, upon the execution and delivery of a good and sufficient bond by such owner with good and sufficient sureties, to be approved by said court, in a sum double the amount of such compensation, conditioned that such owner will pay and refund to such petitioner all or such part of said sum as said owner may be required or adjudged to pay said petitioner, together with the cost of said appeal.

Source: G.L. § 1071. G.S. C. § 250. R.S. 08: § 2428. C.L. § 6324. CSA: C. 61, § 14. CRS 53: § 50-1-14. C.R.S. 1963: § 50-1-14.

ANNOTATION

Order of additional deposit covering award proper during pending proceedings. Where the petitioner in condemnation proceedings desired to occupy and use the premises pending appellate proceedings, it is proper to order an additional deposit sufficient to cover the amount of the compensation ascertained and awarded. Otero Canal Co. v. Fosdick, 20 Colo. 522, 39 P. 332 (1895).

Use of security deposit in subsequent condemnation proceedings. The security deposit for possession, pending condemnation proceedings, cannot be used in a subsequent condemnation proceeding by the same petitioner and for a portion of the same premises where the damages suffered by respondent through the first proceeding have not been determined and paid. Denver & N.O.R.R. v. Lamborn, 9 Colo. 119, 10 P. 797 (1886).

Dismissal of an appeal by a condemnee who requested a release of funds from the court registry that inadvertently included the $100 nominal damage award being contested and who submitted a copy of a check made payable to the court registry in the amount of $100 would simply advance form over substance and would frustrate rather than promote the function of courts, which is to adjudicate fully the issues presented by the parties. Colo. Mtn. Prop. v. Heineman, 860 P.2d 1388 (Colo. App. 1993).

Statute does not bar appeal without exception when a property owner elects to receive the benefit of a judgment before the determination of an appeal. Property owners may appeal the nature of the title obtained by a water and sanitation district that condemned the property, even though the property owners withdrew the bond that the district deposited with the clerk of court. Steamboat Lake Water & Sanit. v. Halvorson, 252 P.3d 497 (Colo. App. 2011).

Applied in Denver, etc., R. Co. v. Jackson, 6 Colo. 340 (1882); Cunningham v. Quinn, 12 Colo. 473, 21 P. 488 (1889); Dolores No. 2 Land & Canal Co. v. Hartman, 17 Colo. 138, 29 P. 378 (1891); Colo. Fuel & Iron Co. v. Four Mile Ry., 29 Colo. 90, 66 P. 902 (1901); Broadmoor Land Co. v. Curr, 133 F. 37 (8th Cir. 1904); Denver & R.G.R.R. v. Mills, 59 Colo. 198, 147 P. 681 (1915); State Dept. of Hwys. v. Casteel, 781 P.2d 108 (Colo. App. 1989); E-470 Pub. Hwy. Auth. v. 455 Co., 997 P.2d 1273 (Colo. App. 1999).