Colorado § 38-1-106 - Jury.

§ 38-1-106. Jury.

The owner of the property involved in any proceeding brought under the provisions of this article, before the appointment of commissioners, as provided in section 38-1-105, and before the expiration of the time for the defendant to appear and answer, may demand a jury of freeholders residing in the county in which the petition is filed to determine the compensation to be allowed in the manner provided in this article. Such demand may be made in the pleadings or by a separate writing filed with the clerk. Such jury shall consist of six persons, unless a larger number is demanded by any party to the proceeding. In no case shall the number of jurors exceed twelve. Any party so demanding a larger number than six jurors shall advance the fees for such additional jurors for one day's service according to the rate allowed jurors in the district court.

Source: G.L. § 1064. G.S. C. § 243. L. 1889: p. 156, § 1. R.S. 08: § 2421. C.L. § 6317. CSA: C. 61, § 7. CRS 53: § 50-1-7. L. 61: p. 374, § 4. C.R.S. 1963: § 50-1-7. L. 66: p. 30, § 2.

ANNOTATION

Section complies with constitution. This section complies with § 15 of art. II, Colo. Const., in providing for a board of commissioners or a jury to ascertain the compensation for taking private property against the owner's consent. Trippe v. Overacker, 7 Colo. 72, 1 P. 695 (1883).

Privilege of jury trial is unconditional; when demanded in proper time, it must be allowed. Sand Creek Lateral Irrigation Co. v. Davis, 17 Colo. 326, 29 P. 742 (1892).

Disposition of preliminary matters before jury called required. All preliminary matters are, in a regular and orderly course, to be disposed of before a jury is called to assess damages; for, unless the right to condemn be first established, there will be no damage, hence no occasion for a jury, and the jury comes for that single purpose, and for no other. Colo. Fuel & Iron Co. v. Four Mile Ry., 29 Colo. 90, 66 P. 902 (1901); Kaschke v. Camfield, 46 Colo. 60, 102 P. 1061 (1909).

Where a jury is demanded and impaneled to try the question of damages caused by taking land for a right-of-way for a ditch, the question of the necessity for taking the land cannot be tried before the jury. Thompson v. De Weese-Dye Ditch & Reservoir Co., 25 Colo. 243, 53 P. 507 (1898).

Right to demand jury of freeholders afforded in inverse condemnation. This section provides that a landowner may demand a jury of freeholders to determine the damages or compensation to be awarded in an eminent domain proceeding. The same right should likewise be afforded a landowner seeking redress, after the fact, in an inverse condemnation action. Ossman v. Mtn. States Tel. & Tel. Co., 184 Colo. 360, 520 P.2d 738 (1974).

Inverse condemnation and common-law claim not litigated in same suit. The requirement of a jury of freeholders in an inverse condemnation action and the lack of such a requirement in an ordinary civil action leads to the conclusion that an inverse condemnation claim cannot be litigated in the same lawsuit with a common-law claim. Ossman v. Mtn. States Tel. & Tel. Co., 184 Colo. 360, 520 P.2d 738 (1974).

Challenge for cause should be sustained to juror who is not freeholder. State Dept. of Hwys. v. Ogden, 638 P.2d 832 (Colo. App. 1981).

Retrial required where jury not made up of freeholders. Where, although the owner of property involved in a condemnation proceeding requested merely a "jury of six" and the trial court attempted to qualify the jury as freeholders, a juror did not hear the question and thus was not discovered that he was not a freeholder, there is no waiver of a jury made up of freeholders. The case must be retried before a properly constituted jury. State Dept. of Hwys. v. Ogden, 638 P.2d 832 (Colo. App. 1981).

Defendant is not entitled to have his damages assessed twice in an eminent domain proceeding, first by a commission, and then by a jury; a jury trial is allowed in lieu of an assessment of damages by a commission. Trippe v. Overacker, 7 Colo. 72, 1 P. 695 (1883); Snider v. Town of Platteville, 75 Colo. 589, 227 P. 548 (1924).

Verdict of jury is a special verdict in a special statutory proceeding under this section since the jury is concerned only with determining the amount of compensation to be paid the owners of property taken. City of Aurora v. Powell, 153 Colo. 4, 383 P.2d 798 (1963).

Striking answer no justification for reversible error. Striking out an answer in condemnation proceedings by the trial court is not an error that would justify reversal. Whitehead v. City of Denver, 13 Colo. App. 134, 56 P. 913 (1899).

Under this section, unlike C.R.C.P. 38, no fees need be advanced at time of jury demand. It is only if more than six jurors are requested that any fees must be advanced, and then the only fees required are those for the number of jurors beyond the initial six. Town of Red Cliff v. Reider, 851 P.2d 282 (Colo. App. 1993).

Although landowners waived their right to a jury of twelve by not tendering fees at the time of their jury demand, they did not thereby waive their statutory right to a trial by a six-person jury. Town of Red Cliff v. Reider, 851 P.2d 282 (Colo. App. 1993).

Applied in Sw. Land Co. v. Hickory Jackson Ditch Co., 18 Colo. 489, 33 P. 275 (1893); Siedler v. Seely, 8 Colo. App. 499, 46 P. 848 (1896); Union P.R.R. v. Colo. Postal Tel. Cable Co., 30 Colo. 133, 69 P. 564 (1902); Broadmoor Land Co. v. Curr, 142 F. 421 (8th Cir. 1905).