Colorado § 38-5-106 - Possession pending action.

§ 38-5-106. Possession pending action.

At any time after jurisdiction has been obtained pursuant to section 38-1-103, the petitioner, upon notice to the respondent pursuant to the Colorado rules of civil procedure, may move for an order for immediate possession. Upon such motion and after hearing, the court, by rule in that behalf made, may authorize the petitioner, upon payment into court or to the clerk thereof of the amount determined by the court as probably sufficient to pay the sum that may ultimately be awarded as compensation and damages for the taking, if not in possession to take possession of such right-of-way, and if already in possession to maintain and keep such possession, and in all cases to use and enjoy such right-of-way during the pendency and until the final conclusion of such proceedings, and the court may stay all actions and proceedings against such petitioner on account thereof. Withdrawal from the sum so deposited may be had as provided in section 38-1-105 (6)(b). At such hearing for immediate possession, the court shall hear and dispose of all objections that are raised at that time concerning the motion for immediate possession, the legal sufficiency of the petition, or the regularity of the proceedings in any other respect.

Source: L. 07: p. 386, § 6. R.S. 08: § 2456. C.L. § 6357. CSA: C. 61, § 47. CRS 53: § 50-5-6. C.R.S. 1963: § 50-5-6. L. 75: Entire section amended, p. 1406, § 2, effective July 18.

ANNOTATION

Section inapplicable to acquisition of land for highway purposes. This section has no application whatever to eminent domain proceedings in which rights-of-way for highways are sought, and it is error to assume that this section confers any right or authority to maintain an action hereunder to acquire lands for highway purposes. Swift v. Smith, 119 Colo. 126, 201 P.2d 609 (1948).

Possession may be acquired only if property acquirable by eminent domain. A public service company may not lawfully acquire immediate possession of any property pursuant to this section unless that property could be lawfully acquired by the exercise of eminent domain. Shaklee v. District Court, 636 P.2d 715 (Colo. 1981).

Possession may not be awarded pending determination of public use. Because land cannot lawfully be condemned pending a judicial determination of the issue of public use, neither may immediate possession pendente lite be awarded. Shaklee v. District Court, 636 P.2d 715 (Colo. 1981).

Applied in Colo. Fuel & Iron Co. v. Four Mile Ry., 29 Colo. 90, 66 P. 902 (1901); Lavelle v. Town of Julesburg, 49 Colo. 290, 112 P. 774 (1910); Denver & R.G.R.R. v. Mills, 59 Colo. 198, 147 P. 681 (1915); Mulford v. Farmers' Reservoir & Irrigation Co., 62 Colo. 167, 161 P. 301 (1916); Beth Medrosh Hagodol v. City of Aurora, 126 Colo. 267, 248 P.2d 732 (1952).