Colorado § 38-1-105 - Adjournment - commission - compensation - defective title - withdrawal of deposit.

§ 38-1-105. Adjournment - commission - compensation - defective title - withdrawal of deposit.

(1) The court may adjourn the proceedings from time to time and shall direct any further notice thereof to be given that may seem proper. The court shall hear proofs and allegations of all parties interested touching the regularity of the proceedings and shall rule upon all objections thereto. Unless a jury is requested by the owner of the property as provided in section 38-1-106, the court shall appoint a board of commissioners of not less than three disinterested and impartial freeholders to determine compensation in the manner provided in this article to be allowed to the owner and persons interested in the lands, real estate, claims, or other property proposed to be taken or damaged in such county for the purposes alleged in the petition. The court shall fix the time and place for the first meeting of such commissioners. Such meeting shall be held at least thirty days prior to the date scheduled for the trial to determine compensation. At the meeting, a voir dire examination shall be conducted by the court and the parties to determine whether the proposed commissioners are disinterested and impartial freeholders. If the court determines that any of the proposed commissioners is not disinterested and impartial, the court shall replace such person and appoint another commissioner, who shall also be subject to voir dire examination. At the hearing to determine compensation, the court shall administer an oath to the commissioners, shall instruct them in writing as to their duties, and, at the conclusion of the testimony, shall instruct them in writing as to the applicable and proper law to be followed by them in arriving at their ascertainment. The court shall fix reasonable compensation for the services and expenses of said commissioners and shall provide the services of a court reporter to record all proceedings had by the commissioners.

(2) The commissioners, before entering upon the duties of their office, shall take an oath to faithfully and impartially discharge their duties as commissioners, and any one of them may administer oaths to witnesses produced before them. The commissioners may request the court or clerk thereof to issue subpoenas to compel witnesses to attend the proceedings and testify as in other civil cases and may adjourn and hold meetings for that purpose. They may request the court to make rulings upon the propriety of the proof or objections of the parties. They shall hear the proofs and allegations of the parties according to the rules of evidence and, after viewing the premises or other property and without fear, favor, or partiality, shall ascertain and certify the proper compensation to be made to said owner or parties interested for the lands, real estate, claims, or other property to be taken or affected, as well as all damages accruing to the owner or parties interested in consequence of the condemnation of the same. The commissioners shall make, subscribe, and file with the clerk of the court in which such proceedings are had a certificate of their ascertainment and assessment, in which such lands, real estate, claims, or other property shall be described with convenient certainty and accuracy.

(3) The court, upon the filing of such certificate or returning of a verdict of a jury as provided in section 38-1-107 and due proof that such compensation and separate sums, if any, are certified or found to have been paid to the parties entitled to the same or have been deposited to the credit of such parties in court or with the clerk of the court for that purpose, shall make and cause to be entered in its minutes a rule describing such lands, real estate, claims, or other property, such ascertainment or compensation with the mode of making it, and each payment or deposit of the compensation, a certified copy of which shall be recorded and indexed in the office of the county clerk and recorder of the proper county in like manner and with like effect as if it were a deed of conveyance from the owner and parties interested to the proper parties. If there is more than one person interested as owner or otherwise in the property and they are unable to agree upon the nature, extent, or value of their respective interests in the total amount of compensation so ascertained and assessed on an undivided basis by either a commission or a jury, the nature, extent, or value of said interests shall thereupon be determined according to law in a separate and subsequent proceeding and distribution made among the several claimants thereto.

(4) Upon the entry of such rule, the petitioner shall become seized in fee unless a lesser interest has been sought, except as provided in this section, of all such lands, real estate, claims, or other property described in said rule as required to be taken, and may take possession and hold and use the same for the purposes specified in such petition, and shall thereupon be discharged from all claims for any damages by reason of any matter specified in such petition, certificate, or rule of said court. No right-of-way or easement acquired by condemnation shall ever give the petitioner any right, title, or interest to any vein, ledge, lode, deposit, oil, natural gas, or other mineral resource found or existing in the premises condemned, except insofar as the same may be required for subsurface support.

(5) If at any time after an attempted or actual ascertainment of compensation under this article or any purchase or by donation to said petitioner of any lands, real estate, claims, or other property for purposes specified in the petition it appears that the title acquired thereby, to all or any part of such lands for the use of such petitioner, is defective or if said assessment fails or is deemed defective, the petitioner may proceed and perfect such title by procuring an ascertainment of the proper compensation to be made to any person who has title, claim, or interest in or lien upon such lands, real estate, claims, or other property and by making payment thereof in the manner provided in section 38-1-112, as near as may be.

(6) (a) At any stage of such new proceedings or of any proceedings under this article, the court, by rule in that behalf made, may authorize the petitioner, if already in possession, to use, and, if not in possession, to take possession of and use, said premises during the pendency and until the final conclusion of such proceedings and may stay all actions and proceedings against such petitioner on account thereof, if such petitioner pays a sufficient sum into court, or to the clerk thereof, to pay the compensation in that behalf when ascertained. The court wherein any such proceedings are had shall determine the amount such petitioner is required to pay or deposit pending any such ascertainment. In every case where possession is so authorized, it is lawful for either party to conduct the proceedings to a conclusion, if the same are delayed by the other party.

(b) Upon proper application to the court or by stipulation between the parties, the owner may withdraw from the sum so deposited an amount not to exceed three-fourths of the highest valuation evidenced or testimony presented by the petitioner at the hearing for possession, unless the petitioner agrees to a larger withdrawal, if all parties interested in the property sought to be acquired consent and agree to such withdrawal. Any such withdrawal of said deposit shall be a partial payment of the amount of total compensation to be paid and shall be deducted by the clerk of the court from any award or verdict entered thereafter.

(c) The petitioner shall not take possession of the property sought to be taken or condemned earlier than thirty days after service of the summons upon the defendant, unless the owner consents to such possession prior to the expiration of the thirty-day period.

Source: G.L. § 1063. G.S. C. § 242. R.S. 08: § 2420. C.L. § 6316. CSA: C. 61, § 6. CRS 53: § 50-1-6. L. 61: p. 371, § 3. L. 63: p. 476, § 1. C.R.S. 1963: § 50-1-6. L. 66: p. 27, § 1. L. 84: (1) amended, p. 972, § 2, effective February 17. L. 85: (6)(c) added, p. 1194, § 3, effective June 6. L. 2008: (4) amended, p. 627, § 1, effective August 5.

ANNOTATION

I. General Consideration.

IV. Damages.

I. GENERAL CONSIDERATION.

Law reviews. For note, "The Real Property Interest Created In a Railroad Upon Acquisition of Its Right-of-Way", see 27 Rocky Mt. L. Rev. 73 (1954). For article, "La Plata Electric Association v. Cummins: A Radical Departure or a Consistent Interpretation of Pre-Existing Equities in Colorado Condemnation Law?", see 65 Den. U. L. Rev. 93 (1988).

Only such interest necessary to accomplish purpose passed. This article passes only such estate or interest in the lands as is reasonably necessary to accomplish the purpose had in view in the condemnation proceeding. Lithgow v. Pearson, 25 Colo. App. 70, 135 P. 759 (1913).

As a result of the 2008 legislative expansion of this section, subsection (4) prohibits a governmental entity from acquiring through condemnation a right to any mineral resource beneath real property that was itself acquired through condemnation for highway purposes except to the extent required for subsurface support. Prior to that expansion, subsection (4) did not prohibit such acquisition by the department of transportation. Dept. of Transp. v. Gypsum Ranch Co., 244 P.3d 127 (Colo. 2010).

Specific land description in order appointing commissioners not required. This section does not require that the land to be taken or damaged should be specifically described in the order appointing the commissioners. Williams v. Bd. of Comm'rs, 48 Colo. 541, 111 P. 71 (1910).

Trial judge is not required to preside at all commissioners' meetings. Bd. of County Comm'rs v. Vail Assocs., 171 Colo. 381, 468 P.2d 842 (1970).

Applied in Smith Canal or Ditch Co. v. Colo. Ice & Storage Co., 34 Colo. 485, 82 P. 940 (1905); Boothroyd v. Bd. of Comm'rs, 43 Colo. 428, 97 P. 255 (1908); Kern v. Minekime, 45 Colo. 378, 101 P. 341 (1909); Hoover-Benninghoff v. Palisade, 48 Colo. 64, 108 P. 983 (1910); United States v. O'Neill, 198 F. 677 (D. Colo. 1912); Keller v. Miller, 63 Colo. 304, 165 P. 774 (1917); Rothwell v. Coffin, 122 Colo. 140, 220 P.2d 1063 (1950); Potashnik v. Pub. Serv. Co., 126 Colo. 98, 247 P.2d 137 (1952); Goldstein v. Denver Urban Renewal Auth., 192 Colo. 422, 560 P.2d 80 (1977); Bd. of County Comm'rs v. Delaney, 41 Colo. App. 548, 592 P.2d 1338 (1978); Buck v. District Court, 199 Colo. 344, 608 P.2d 350 (1980); State Dept. of Hwys. v. Pigg, 656 P.2d 46 (Colo. App. 1982).

II. THE PROCEEDINGS.

A. In General.

B. Questions for Determination in Limine.

C. Power of Commissioners.

A. In General.

Parties entitled to presence at trial, cross-examination, etc. At the trial both parties are entitled to be present, to cross-examine witnesses and to object to the admission or exclusion of any and all documents offered in evidence. Routt County Dev. Co. v. Johnson, 23 Colo. App. 511, 130 P. 1081 (1913).

Petitioner may pay award or abandon proceedings. Under a judgment in condemnation the petitioner may pay the award and take title to the property, or he may abandon the proceedings and, thus, incur no liability for the sum awarded as the value of the property; and this is true even in cases where by virtue of the statute, he has obtained preliminary possession pending trial. Dolores No. 2 Land & Canal Co. v. Hartman, 17 Colo. 138, 29 P. 378 (1891).

Condemning party may discontinue proceedings at any time before the right of the property owner to compensation or damages has become complete, in the absence of a statutory provision showing a legislative intent to the contrary. Denver & N.O.R.R. v. Lamborn, 8 Colo. 380, 8 P. 582 (1885); Denver & R.G.R.R. v. Mills, 59 Colo. 198, 147 P. 681 (1915); Johnson v. Climax Molybdenum Co., 109 Colo. 308, 124 P.2d 929 (1942).

Payment required for costs and damages recoverable upon abandonment. The privilege to so abandon the proceeding does not relieve the condemning party from the payment of such costs and damages as may be lawfully recovered. Denver & R.G.R.R. v. Mills, 59 Colo. 198, 147 P. 681, 1916E Ann. Cas. 985 (1915).

Landowner must recover damages in separate action. Damages occasioned by the occupancy and use of the land by the condemnor, where the condemnor discontinues the proceedings after gaining temporary possession of the property, must be recovered by the landowner in a separate action. Johnson v. Climax Molybdenum Co., 109 Colo. 308, 124 P.2d 929 (1942).

Since landowner's action for damages improper for consideration in condemnation proceedings. The procedural requirement of the landowner having to seek recovery in a separate action arose from the fact that condemnor, after abandoning and discontinuing the proceedings, was relegated to the status of a trespasser ab initio, and the landowner's action for damages, of necessity, had to sound in tort and involved essentials, both in the pleading and trial thereof, not properly subjects for consideration in condemnation proceedings under this section. Johnson v. Climax Molybdenum Co., 109 Colo. 308, 124 P.2d 929 (1942).

Condemnor has burden of maintaining his right by proper proofs, once the landowner has controverted the condemnor's right to condemn. Otero Irrigation Dist. v. Enderud, 122 Colo. 136, 220 P.2d 862 (1950).

Property owner acquires no vested right to compensation awarded until condemnor has secured a vested right to the property condemned, and vice versa. City of Broomfield v. Walnut Creek Dev. Corp., 666 P.2d 1103 (Colo. App. 1982).

Scope of petitioner's showing in pleadings and proof. The petitioner is at liberty to show, by proper pleadings and proof that such title or claim is nothing more than the bare legal title, without any equity in the defendant, and that the damages are merely nominal, or that the defendant's estate is something less than the full legal and equitable interest, on account of the payment and acceptance of the compensation therefor, as pleaded; nothing in disparagement of defendant's title, unless fairly within the scope of the pleadings, could be properly admitted in evidence. Knoth v. Barclay, 8 Colo. 300, 6 P. 924 (1885); G.B. & L. Ry. v. Haggart, 9 Colo. 346, 12 P. 215 (1886); Colo. Cent. R.R. v. Allen, 13 Colo. 229, 22 P. 605 (1889).

Order violating constitution does not vitiate rest of proceedings. Whether an interlocutory order violates constitutional requirement of due process of law or not, it does not vitiate the rest of the proceedings for condemnation and, if in those proceedings, respondents have had notice and have had their compensation judicially ascertained, the case will not be reversed because of such order, unless it is shown that it has injuriously affected their rights upon the merits. Sternberger v. McClain v. People, 9 Colo. 190, 11 P. 85 (1886); San Luis Land, Canal & Imp. Co. v. Kenilworth Canal Co., 3 Colo. App. 244, 32 P. 860 (1893); 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 (1911); Cont'l Mines Power & Reduction Co., 68 Colo. 129, 186 P. 910 (1920).

Issues pertaining to the government's right to take immediate possession of condemned property are properly part of eminent domain proceedings. Because the trial court had jurisdiction to decide issues pertaining to the department of transportation's right to take immediate possession of the property, it necessarily follows that the trial court also had jurisdiction to accept, interpret, and enforce a stipulation which resolved the dispute over such possession. Dept. of Transp. v. Auslaender, 94 P.3d 1239 (Colo. App. 2004).

Although an eminent domain valuation commission is empowered to make evidentiary rulings without consulting the supervisory judge, the judge's evidentiary rulings control and are binding on the commission. This remains true whether the judge rules on the evidentiary issue presented before or after the commission considers its admissibility. Reg'l Transp. Dist. v. 750 W. 48th Ave., LLC, 2015 CO 57, 357 P.3d 179.

If the judge has not ruled on the evidence, then the commission may do so without consulting her. But the judge is still the judge. Under § 38-1-101 (2)(a), she is charged with deciding all questions and issues except the amount of compensation, and the commission must operate within the bounds of the judge's supervisory authority. Therefore, any implicit power in the commission to decide evidentiary rulings is necessarily subsidiary to judicial rulings and the commission has no power to alter those rulings unilaterally. This remains true even when the judicial rulings are made in limine. Reg'l Transp. Dist. v. 750 W. 48th Ave., LLC, 2015 CO 57, 357 P.3d 179.

Trial judge has authority to instruct the commission to disregard evidence that the court finds to be irrelevant, despite the commission having deemed the evidence relevant and admissible during a hearing. Reg'l Transp. Dist. v. 750 W. 48th Ave., LLC, 2015 CO 57, 357 P.3d 179.

B. Questions for Determination in Limine.

Questions for determination by court include: (1) Whether or not the petitioner belongs to the class of persons entitled to condemn; (2) whether or not the property sought to be taken belongs to the class of property that is subject to condemnation; (3) whether or not the purpose for which the property is sought to be taken is one for which condemnation is permitted; (4) whether or not the petitioner and the owner have been able to come to an agreement concerning a purchase of the land; and (5) whether or not the act authorizing the proceeding is constitutional. Pine Martin Mining Co. v. Empire Zinc Co., 90 Colo. 529, 11 P.2d 221 (1932).

Court must determine necessity and purpose of taking land. The question of the necessity of taking land and property from the owner and the question as to whether or not the purpose for which the property is to be taken is a public one are questions which the court must answer because the correct answers are conditioned by rules of law of which the commissioners cannot have competent knowledge. Union P.R.R. v. Colo. Postal Tel. Cable Co., 30 Colo. 133, 69 P. 564 (1902).

Petitioner's entitlement to condemn. If a petitioner is not entitled to condemn a tract, or if a tract should not have been taken are matters for the court to settle in advance. Wassenich v. City & County of Denver, 67 Colo. 456, 186 P. 533 (1919).

Since a right-of-way shall not give the party condemning it any right, title, or interest to any vein, ledge, lode, or deposit in the premises so taken, the question of whether the petitioners were precluded from running a tunnel is a matter which, if proper to consider in condemnation proceedings, must be settled by the court. Colo. Fuel & Iron Co. v. Four Mile Ry., 29 Colo. 90, 66 P. 902 (1901).

Inability to agree is to be determined by court, Kaschke v. Camfield, 46 Colo. 60, 102 P. 1061 (1909).

Feasibility or financial success of enterprise not determinations for court in limine. Whether or not an enterprise is feasible or will be a financial success cannot be inquired into even by commissioners charged with the duty of determining the question of necessity for the project, and clearly such questions were not for the determination of the court in limine. Rothwell v. Coffin, 122 Colo. 140, 220 P.2d 1063 (1950).

Nothing in subsection (1) purports to preclude a court from making determination before trial on the legal question of whether the phrase "private ways of necessity" includes ways for natural gas pipelines. This legal question is distinguished from factual question of necessity, that is, whether the way sought is "reasonably necessary" under the facts and circumstances of the case, which is one for the trier of fact. Akin v. Four Corners Encampment, 179 P.3d 139 (Colo. App. 2007).

Although a trial judge who is overseeing a commission hearing need not affirmatively grant or deny a motion in limine to exclude evidence, if the judge does issue an explicit ruling, then the commission is bound by that ruling and may not deviate from it. Reg'l Transp. Dist. v. 750 W. 48th Ave., LLC, 2015 CO 57, 357 P.3d 179.

C. Power of Commissioners.

Language of subsection (2) is permissive and not mandatory. Bd. of County Comm'rs v. McClure Venture, 41 Colo. App. 524, 594 P.2d 585 (1978).

Province of board fixed by subsection (2). The province of the board of commissioners is fixed by the terms of subsection (2). Broadmoor Land Co. v. Curr, 142 F. 421 (8th Cir. 1905); Routt County Dev. Co. v. Johnson, 23 Colo. App. 511, 130 P. 1081 (1913).

Commissioner is combination of civil juror and judge. State Dept. of Hwys. v. Copper Mt., Inc., 624 P.2d 936 (Colo. App. 1981).

Commissioners to make all evidentiary decisions. The board of commissioners may seek the aid of the trial court in resolving the propriety of the proofs or objections of the parties; however, in the absence of the board's requesting such aid, the board will make all evidentiary decisions. City of Aurora v. Webb, 41 Colo. App. 11, 585 P.2d 288 (1978).

The commission was entitled to consider any competent evidence, including after sales which were comparable in character, close in time and in location, in ascertaining the present, reasonable market value of the condemned property at the date of the taking. State Dept. of Hwys. v. Town of Silverthorne, 707 P.2d 1017 (Colo. App. 1985).

Commissioners may not hold interviews with those not called as witnesses. Routt County Dev. Co. v. Johnson, 23 Colo. App. 511, 130 P. 1081 (1913).

Commissioners may not examine documents not produced at the hearing. Routt County Dev. Co. v. Johnson, 23 Colo. App. 511, 130 P. 1081 (1913).

Commissioners not required to determine questions of law. It was never intended that commissioners should be required to determine questions the solution of which depends upon the application of intricate questions of law such as would be presented by the trial of issues tendered by the answer of respondent. Sand Creek Lateral Irrigation Co. v. Davis, 17 Colo. 326, 29 P. 742 (1892); Siedler v. Seely, 8 Colo. App. 499, 46 P. 848 (1896); Thompson v. DeWeese-Dye Ditch & Reservoir Co., 25 Colo. 243, 53 P. 507 (1898); Gibson v. Cann, 28 Colo. 499, 66 P. 879 (1901); Colo. Fuel & Iron Co. v. Four Mile Ry., 29 Colo. 90, 66 P. 902 (1901); Union P.R.R. v. Colo. Postal Tel. Cable Co., 30 Colo. 133, 69 P. 564 (1902).

Section does not confer roving commission upon commissioners; therefore, the commissioners may not go into the highways and byways in quest of plats, documents, and printed matter. Routt County Dev. Co. v. Johnson, 23 Colo. App. 511, 130 P. 1081 (1913).

Effect of one commissioner's failure to view subject property. Failure of one of commission of three freeholders to view subject property does not vitiate the commission's ascertainment of value and the judgment entered thereon. Bd. of County Comm'rs v. McClure Venture, 41 Colo. App. 524, 594 P.2d 585 (1978).

Disqualification of commissioner. There is no Colorado law on the grounds for disqualification of a commissioner. State Dept. of Hwys. v. Copper Mt., Inc., 624 P.2d 936 (Colo. App. 1981).

Trial court did not err in failing to disqualify commissioner based on the "appearance of impropriety" disqualification standard applicable to judges. Trial court properly held that the applicable standard for disqualifying commissioners under subsection (1) is not "an appearance of partiality" but whether the commissioner was "in fact interested and partial". Practical considerations support the conclusion that the general assembly intended to require actual partiality for disqualifying commissioners. Reg'l Transp. Dist. v. 750 W. 48th Ave., LLC, 2013 COA 168, 369 P.3d 640, aff'd in part, rev'd in part on other grounds, 2015 CO 57, 357 P.3d 179.

In applying the actual bias standard, commissioner's affiliation with two fellow employees who had testified against condemning party as expert witnesses in other unrelated condemnation cases did not make her interested or partial. Thus, the trial court did not abuse its discretion in not disqualifying commissioner despite her affiliation. Reg'l Transp. Dist. v. 750 W. 48th Ave., LLC, 2013 COA 168, 369 P.3d 640, aff'd in part, rev'd in part on other grounds, 2015 CO 57, 357 P.3d 179.

III. DEPOSITS.

A. In General.

B. Withdrawal of Deposits.

A. In General.

Purpose of requiring deposit is to provide the landowner with security for the payment of compensation and damages ultimately awarded. City of Englewood v. Reffel, 34 Colo. App. 103, 522 P.2d 1241 (1974).

Preliminary deposit is not payment, nor part payment, until it is actually so applied. Dolores No. 2 Land & Canal Co. v. Hartman, 17 Colo. 138, 29 P. 378 (1891); Denver & R.G.R.R. v. Mills, 59 Colo. 198, 147 P. 681 (1915).

Deposit required must be sufficient to pay compensation due the landowner when the value of his land is determined by a board of commissioners or a jury as provided. Swift v. Smith, 119 Colo. 126, 201 P.2d 609 (1948).

If the petitioner deposits a sum with the court sufficient to pay the compensation when it is later ascertained, the court may authorize the petitioner to take immediate possession of the property before a final evaluation of the property is made. E-470 Pub. Hwy. Auth. v. 455 Co., 997 P.2d 1273 (Colo. App. 1999).

Court acts as depositary of petitioner. In receiving the preliminary deposit, the court, or its proper officer, acts as the depositary of the petitioner until the deposit is actually applied to its ultimate purpose or is otherwise legally disposed of. Dolores No. 2 Land & Canal Co. v. Hartman, 17 Colo. 138, 29 P. 378 (1891); Denver & R.G.R.R. v. Mills, 59 Colo. 198, 147 P. 681 (1915).

B. Withdrawal of Deposits.

Withdrawals deemed provisional. Withdrawals from the sum deposited pursuant to subsection (6)(b) are provisional, not absolute. City of Englewood v. Reffel, 34 Colo. App. 103, 522 P.2d 1241 (1974).

If deposit withdrawn, petitioner's right of possession suspended. A preliminary deposit in a condemnation proceeding is essential to the petitioner's right of entry and possession and, if by any means, it is withdrawn before the final determination of the controversy, the petitioner's right of possession is suspended. Dolores No. 2 Land & Canal Co. v. Hartman, 17 Colo. 138, 29 P. 378 (1891); Denver & R.G.R.R. v. Mills, 59 Colo. 198, 147 P. 681 (1915).

Refund of excessive withdrawals. If approximation of value is shown to be grossly inflated, there is no justification for allowing the landowner to retain amounts previously withdrawn. City of Englewood v. Reffel, 34 Colo. App. 103, 522 P.2d 1241 (1974).

If courts refused to allow a refund when excessive amounts are withdrawn, the landowners would be unjustly enriched at the public's expense. City of Englewood v. Reffel, 34 Colo. App. 103, 522 P.2d 1241 (1974).

Order demanding landowner refund excess withdrawn not modification of judgment. Where a city in a second judgment succeeded in drastically reducing the amount of the landowners' award in an eminent domain proceeding, but the landowners had under the first judgment, and in accordance with subsection (6)(b), withdrawn a significant excess over the final award, an order of the court demanding a refund was not a modification of the judgment, but was an attempt to give effect to the judgment. City of Englewood v. Reffel, 34 Colo. App. 103, 522 P.2d 1241 (1974).

A deposit withdrawn with the parties' consent need not be immediately returned when the condemnation is abandoned and the award of damages arising from the abandonment is still pending. The withdrawing party may retain those funds until the condemnation damages proceeding is completed but must return any excess beyond the party's actual damages. Aurora Pub. Sch. v. Stapleton Gateway, 2020 COA 73, 465 P.3d 142.

IV. DAMAGES.

Commissioners fix compensation payable to interested parties. The commissioners shall fix the compensation to be paid, not only to the owners, but to all parties interested in the lands taken, as well as all damages accruing to such owners or parties interested in consequence of the condemnation of the same. Hutchinson v. McLaughlin, 15 Colo. 492, 25 P. 317 (1890); Swift v. Smith, 119 Colo. 126, 201 P.2d 609 (1948).

Commissioners to consider highest and best use. The commissioners are not to view the property in its present status only, but rather, the present market value is to be assessed in light of the highest and best use to which the property can reasonably be applied. City of Aurora v. Webb, 41 Colo. App. 11, 585 P.2d 288 (1978).

Probability of upward rezoning. If a probability of upward rezoning exists, the commissioners may take evidence, under the comparable sales method of valuation, of sales of other property which has benefited by the more advantageous zoning status. City of Aurora v. Webb, 41 Colo. App. 11, 585 P.2d 288 (1978).

This state follows version of undivided basis rule. Where a lessor holds a fee simple subject to an encumbrance, such as a lease, this state follows the rule that the property must be valued on an undivided basis, but with some distinctions from the strict undivided fee rule. Montgomery Ward & Co. v. City of Sterling, 185 Colo. 238, 523 P.2d 465 (1974).

Under undivided basis rule, parties have opportunity to agree on apportionment of award, thereby avoiding completely the difficult task of ascertaining the value of the separate interests. Montgomery Ward & Co. v. City of Sterling, 185 Colo. 238, 523 P.2d 465 (1974).

Once the reasonable market value of property in an eminent domain proceeding has been established, the apportionment of that amount among claimants is of no concern to the condemnor. State Dept. of Hwys. v. Town of Silverthorne, 707 P.2d 1017 (Colo. App. 1985).

Undivided basis rule has effect of curbing excessive awards in that it simplifies and narrows the issues in the proceeding in which the condemnor has an interest. Montgomery Ward & Co. v. City of Sterling, 185 Colo. 238, 523 P.2d 465 (1974).

Encumbrance adding or subtracting from fair market value not ignored. The undivided basis rule, as applied in Colorado and, as distinguished from the undivided fee rule adopted in some states, does not ignore the value which an encumbrance may add to or subtract from the fair market value of the property as a whole. Montgomery Ward & Co. v. City of Sterling, 185 Colo. 238, 523 P.2d 465 (1974).

Contract rental adding to value relevant. The undivided basis rule contemplates that where a contract rental adds to the fair market value of the property, evidence of that rental is relevant in determining the compensation to be paid. Montgomery Ward & Co. v. City of Sterling, 185 Colo. 238, 523 P.2d 465 (1974).

If contract rental less than fair rent, latter relevant. Under the undivided basis rule, where a contract rental is less than the fair rental, the fair rental and not the contract rental is the relevant evidence on the issue of compensation. This assures a fair return for the property valued as a whole. Montgomery Ward & Co. v. City of Sterling, 185 Colo. 238, 523 P.2d 465 (1974).

Condemnor need not pay for interest which was not lost by condemnees under the undivided basis rule. Montgomery Ward & Co. v. City of Sterling, 185 Colo. 238, 523 P.2d 465 (1974).

Lessee's compensable rights in leasehold unaffected by lessor's settlement. Where lessee has compensable rights in leasehold, these rights are not affected by lessor's settlement with the condemnor. Montgomery Ward & Co. v. City of Sterling, 185 Colo. 238, 523 P.2d 465 (1974).

Where lessee is party in interest, its compensation is affected by amount which condemnors must pay for entire property taken, and although it may have waived its right to present its own evidence of value, it did not waive its right to insist that the award be based on competent evidence and to cross-examine its source. Montgomery Ward & Co. v. City of Sterling, 185 Colo. 238, 523 P.2d 465 (1974).

Stipulation not proper basis for award. Where a lessee, a party in interest, was not a party to a stipulation between the condemnors and the lessor, and objected to admissibility of the stipulation and asserted its right to cross-examine the appraisers, the stipulation is not a proper basis for the award. Montgomery Ward & Co. v. City of Sterling, 185 Colo. 238, 523 P.2d 465 (1974).

When interest on award accrues. Where the authorization to take possession of property is contingent on a deposit, the date of possession for purposes of entitlement to interest on the award is the date of deposit. Denver Urban Renewal Auth. v. Hayutin, 40 Colo. App. 559, 583 P.2d 296 (1978).

Procedure for determining the total value of the property. In a valuation hearing, the commission and the court properly refused to consider evidence of chain of title to the condemned street. State Dept. of Hwys. v. Town of Silverthorne, 707 P.2d 1017 (Colo. App. 1985).