Colorado § 38-1-114 - Formula for computing compensation - definitions.

§ 38-1-114. Formula for computing compensation - definitions.

(1) Except for the provisions of subsection (2) of this section that shall apply to acquisitions for highways and transportation projects undertaken by the regional transportation district created by article 9 of title 32, C.R.S., the right to compensation and the amount thereof, including damages and benefits, if any, shall be determined initially as of the date the petitioner is authorized by agreement, stipulation, or court order to take possession or the date of trial or hearing to assess compensation, whichever is earlier, but any amount of compensation determined initially shall remain subject to adjustment for one year after the date of the initial determination to provide for additional damages or benefits not reasonably foreseeable at the time of the initial determination. In estimating the value of all property actually taken, the true and actual value at such time shall be allowed and awarded. No deduction therefrom shall be allowed for any benefit to the residue of said property. In estimating damages occasioned to other portions of the claimant's property or any part thereof other than that actually taken, the value of the benefits, if any, may be deducted therefrom. In all cases the owner shall receive the full and actual value of all property actually taken. In case the benefit to the property not actually taken exceeds the damages sustained by the owner to the property not actually taken, the owner shall not be required to pay or allow credit for such excess.

(2) (a) For acquisitions for highways and transportation projects undertaken by the regional transportation district created by article 9 of title 32, C.R.S., the right to compensation and the amount thereof, including damages and benefits, if any, shall be determined as of the date the petitioner is authorized by agreement, stipulation, or court order to take possession or the date of trial or hearing to assess compensation, whichever is earlier, but any amount of compensation determined initially shall remain subject to adjustment for one year after the date of the initial determination to provide for additional damages or benefits not reasonably foreseeable at the time of the initial determination.

(b) If an entire tract or parcel of property is condemned, the amount of compensation to be awarded is the reasonable market value of the said property on the date of valuation.

(c) If only a portion of a tract or parcel of land is taken, the damages and special benefits, if any, to the residue of said property shall be determined. When determining damages and special benefits, the appraiser shall take into account a proper discount when the damages and special benefits are forecast beyond one year from the date of appraisal.

(d) In determining the amount of compensation to be paid for such a partial taking, the compensation for the property taken and damages to the residue of said property shall be reduced by the amount of any special benefits which result from the improvement or project, but not to exceed fifty percent of the total amount of compensation to be paid for the property actually taken.

(3) For purposes of this section, "transportation" shall have the same meaning as set forth in section 43-1-102 (6), C.R.S.

Source: G.L. § 1074. G.S. C. § 253. R.S. 08: § 2431. C.L. § 6327. CSA: C. 61, § 17. CRS 53: § 50-1-17. L. 61: p. 375, § 5. L. 63: p. 477, § 2. C.R.S. 1963: § 50-1-17. L. 79: Entire section amended, p. 1381, § 1, effective July 1. L. 87: Entire section amended, p. 1308, § 1, effective July 1. L. 2005: (1) and (2)(a) amended and (3) added, p. 317, § 1, effective August 8.

Cross references: For discussion of instructions and evidence admissible on determination of agricultural land values, see City and County of Denver v. Minshall, 109 Colo. 31, 121 P.2d 667 (1942), and City and County of Denver v. Quick, 108 Colo. 111, 113 P.2d 999 (1941).

ANNOTATION

I. General Consideration.

III. Damages to Residue of Property.

I. GENERAL CONSIDERATION.

Law reviews. For article, "Some Problems of Severance Damage", see 29 Dicta 327 (1952). For article, "Inverse Condemnation — A Viable Alternative", see 51 Den. L. J. 529 (1974). For article, "Status of Landowners Property Slated for Condemnation", see 14 Colo. Law. 1191 (1985).

Right of just compensation guarded. Section 15 of art. II, Colo. Const., guarantees just compensation to the owner when property is taken without his consent, and this right is jealously guarded. Lamborn v. Bell, 18 Colo. 346, 32 P. 989, 20 L.R.A. 241 (1893).

Subsection (2)(d) does not violate art. II, § 15, of the Colorado Constitution, which requires that landowners receive just compensation for property taken or damaged. When an award of compensation for property taken is reduced by the amount of special benefits pursuant to subsection (2)(d), the value of the payment received plus the value of the land still possessed by the landowner after the taking, enhanced by the special benefits, is equivalent to the value of the landowners property prior to the taking. Therefore, the landowner receives just compensation. E-470 Pub. Hwy. Auth. v. Revenig, 91 P.3d 1038 (Colo. 2004).

General compensation rules not strictly applied if result fundamentally unfair. The general rule that compensation is to be determined as of the date of the order of possession cannot be applied strictly if the result would be fundamentally unfair. Bd. of County Comm'rs v. Delaney, 41 Colo. App. 548, 592 P.2d 1338 (1978) (decided prior to 1979 amendment).

State has duty to assure just compensation. It is the duty of the state, in the conduct of an inquest by which the compensation is ascertained, to see that it is just, not merely to the individual whose property is taken, but to the public which is to pay for it. Williams v. City & County of Denver, 147 Colo. 195, 363 P.2d 171 (1961).

Condemnation award is made in gross as a general rule. Vivian v. Bd. of Trustees, 152 Colo. 556, 383 P.2d 801 (1963).

Claimants litigate right to assessed damages among themselves. When the damages are assessed for the taking of the property, it should be paid into court and the claimants can litigate the right thereto among themselves. Denver Power & Irrigation Co. v. Denver & R.G.R.R., 30 Colo. 204, 69 P. 568 (1902); Vivian v. Bd. of Trustees, 152 Colo. 556, 383 P.2d 801 (1963).

Landowner has burden to show property value and damages. In a proceeding to condemn property for public use, the burden is upon the landowner to show the value of the property or interest therein actually taken, as well as the damages, if any, to the residue of such property. Colo. Cent. R.R. v. Allen, 13 Colo. 229, 22 P. 605 (1889).

Petitioner has burden to show benefits, if any, as well as the burden of showing the necessity of the taking, where such matters are litigated. Colo. Cent. R.R. v. Allen, 13 Colo. 229, 22 P. 605 (1889).

Requirement to accept device to lessen damage prohibited. A landowner cannot be required to accept a structure or device of the petitioner, intended to lessen such damage, and which is no part of the improvement for which his land is taken. Von Richtofen v. Bijou Irrigation Dist., 52 Colo. 527, 125 P. 495 (1912).

Invalidity of award must be shown by anyone asserting it by clear and satisfactory evidence. Pub. Serv. Co. v. City of Loveland, 79 Colo. 216, 245 P. 493 (1926).

Value of land taken in condemnation proceeding should be determined as of date of city's possession and not as of the date of valuation hearing if condemnee did not seek damages to the remainder and had accepted a stipulated monetary amount upon condemnation. Therefore, condemnee was only entitled to the difference between the payment accepted and the fair market value of land at time of possession plus interest on the difference from the date of possession. City of Glendale v. Rose, 679 P.2d 1096 (Colo. App. 1983) (action commenced prior to 1979 amendment).

If the property is sought to be condemned under this procedure and if the court authorizes the condemning authority to take possession of the property prior to the valuation hearing, the ultimate award of compensation, based on the property, shall be determined as of the date the petitioner is authorized by the court to take possession. If, however, the condemning authority has not taken possession of the property prior to the valuation hearing, then the valuation date is the date of trial or hearing to assess compensation. Fowler Irrevocable Trust 1992-1 v. City of Boulder, 992 P.2d 1188 (Colo. App. 1999), aff'd in part, rev'd in part on other grounds, 17 P.3d 797 (Colo. 2001).

Where the state takes possession prior to entering into a contract or receiving a court order, fair market value must be determined as of the date of possession. The Mill v. State Dept. of Health, 868 P.2d 1099 (Colo. App. 1993).

The plain language of the statute allows for the determination of true and actual value as of the date of possession. Where mining waste existed on the property as of the date the city took possession but was not discovered until after the city took possession, this section does not preclude the introduction of that information. City of Black Hawk v. Ficke, 215 P.3d 1129 (Colo. App. 2008).

Applied in Twin Lakes Hydraulic Gold Mining Syndicate v. Colo. M. Ry., 16 Colo. 1, 27 P. 258 (1890); San Luis Land, Canal & Imp. Co. v. Kenilworth Canal Co., 3 Colo. App. 244, 32 P. 860 (1893); Lithgow v. Pearson, 25 Colo. App. 70, 135 P. 759 (1913); Pine Martin Mining Co. v. Empire Zinc Co., 90 Colo. 529, 11 P.2d 221 (1932); Fishel v. City & County of Denver, 106 Colo. 576, 108 P.2d 236 (1940); Rullo v. Pub. Serv. Co., 163 Colo. 99, 428 P.2d 708 (1967); Denver Urban Renewal Auth. v. Marshall Mfg. Co., 35 Colo. App. 227, 532 P.2d 746 (1975); Hayden v. Bd. of County Comm'rs, 41 Colo. App. 102, 580 P.2d 830 (1978).

II. DAMAGES FOR PROPERTY ACTUALLY TAKEN.

A. In General.

B. Measure of Compensation Allowed.

A. In General.

Witnesses qualified to testify on property value. A witness may be sufficiently qualified to testify if he is a resident, landowner or farmer in the neighborhood, and is familiar with the value of the property. Bd. of Dirs. v. Calvaresi, 156 Colo. 173, 397 P.2d 877 (1964).

Owner may testify as to his own estimate of value of his land. Bd. of Dirs. v. Calvaresi, 156 Colo. 173, 397 P.2d 877 (1964).

Jury not required to accept owner's conclusions. Where the trial court allowed the owner to testify on his theory of value and past operations, the jury was certainly entitled to weigh the past history against the glowing future predicted, but was not required to accept the owner's conclusions. Ruth v. Dept. of Hwys., 145 Colo. 546, 359 P.2d 1033 (1961).

Rejection of owner's estimate of value harmless error. The rejection of evidence, that defendant had stated, after the improvement was constructed, that he would not take $10,000 for his place, held, in view of testimony given by other witnesses for plaintiff, if error, to be harmless. Wiley Drainage Dist. v. Semmens, 80 Colo. 365, 250 P. 527 (1926).

Laying foundation for expert's cross-examination on property appraisals. Sufficient foundation for cross-examination of an expert as to appraisals of other property which he has made in the area is laid where it is shown: (1) That the appraisal is of a piece of property that he has determined to be comparable or involves similar property in the neighborhood of the condemned property; and (2) that the appraisal is not too remote in time. Bd. of County Comm'rs v. H.A. Nottingham & Sons, 36 Colo. App. 265, 540 P.2d 1126 (1975).

One of the few means a condemnee has to question the credibility of the condemnor's expert witness, other than by contradictory testimony by other witnesses, is to show that the expert has made other inconsistent appraisals of the comparable or of similar neighboring land at a time which is not too remote to provide a reasonable comparison. This line of cross-examination, while ostensibly used for the purpose of testing the witness's credibility, serves, in essence, to elicit additional affirmative evidence of the value of the comparable, and as such, it is relevant for purposes of determining the true value of the land used as a comparison. Bd. of County Comm'rs v. H.A. Nottingham & Sons, 36 Colo. App. 265, 540 P.2d 1126 (1975).

B. Measure of Compensation Allowed.

Compensation allowable is the difference in value of the property before and after the taking is complete. Denver & R.G.R.R. v. Griffith, 17 Colo. 598, 31 P. 171 (1892).

The compensation allowable is the price the property will sell for where there is a demand. Denver N.W. & P. Ry. v. Howe, 49 Colo. 256, 112 P. 779 (1910).

Elements of damages to condemned property such as the cost of restoration of property, estimate of replacement value, and related items are admissible only if they would have a bearing on and influence opinion as to value. Mack v. Bd. of County Comm'rs, 152 Colo. 300, 381 P.2d 987 (1963).

Factors considered in determining proper measure of owner's recovery include: (1) Compensation for the land or property actually taken equal to the true and actual value thereof at the time of the appraisement; and (2) damages to the residue of the land or property not taken, equal to the actual diminution of its market value, if any, for any use to which the same may reasonably be put. City of Denver v. Bayer, 7 Colo. 113, 2 P. 6 (1883); Colo. Cent. R.R. v. Allen, 13 Colo. 229, 22 P. 605 (1889); Colo. M. Ry. v. Brown, 15 Colo. 193, 25 P. 87 (1890).

In arriving at the present value of the property taken and the damages, if any, to the residue, the jury has a right to consider its present condition, improvements, surroundings, and capabilities, and the present use of the land and any reasonable use in the future to which it may be adapted or to which it might be put. Bd. of County Comm'rs v. Noble, 117 Colo. 77, 184 P.2d 142 (1947); Ruth v. Dept. of Hwys., 145 Colo. 546, 359 P.2d 1033 (1961); Dept. of Hwys. v. Schulhoff, 167 Colo. 72, 445 P.2d 402 (1968).

Market value of land. In determining the value of the land taken, the jury is to be governed by the land's market value at the time of the trial. Mulford v. Farmers' Reservoir & Irrigation Co., 62 Colo. 167, 161 P. 301 (1916); Vivian v. Bd. of Trustees, 152 Colo. 556, 383 P.2d 801 (1963).

Market value is the price which property will bring when offered for sale by one who desires but is not obliged to sell it, and is bought by one who desires it but is under no necessity to buy the property. Bd. of County Comm'rs v. Noble, 117 Colo. 77, 184 P.2d 142 (1947); Vivian v. Bd. of Trustees, 152 Colo. 556, 383 P.2d 801 (1963); Dept. of Hwys. v. Schulhoff, 167 Colo. 72, 445 P.2d 402 (1968).

Just compensation excludes factors relating to public acquisition. Under the test of market value, just compensation cannot include any increment arising from the very fact of acquisition of the subject property because, if the land sold in the open market under ordinary and usual circumstances, factors relating to public acquisition would have to be excluded from consideration. Williams v. City & County of Denver, 147 Colo. 195, 363 P.2d 171 (1961).

Just compensation is determined as of the date the petitioner is authorized by agreement, stipulation, or court order to take possession of the subject property and cannot include any increment arising from the very fact of acquisition or the intended use of the property. Wall v. City of Aurora, 172 P.3d 934 (Colo. App. 2007).

Amount of liens cannot be added to award. The award of the commission or the jury must reflect only the fair market value of the property taken and there cannot be added to the award as part of the fair market value the amount of liens which exist against the property. Dept. of Hwys. v. Kelley, 151 Colo. 517, 379 P.2d 386 (1963).

Price paid for similar property in voluntary sale admissible evidence. Evidence of the price paid for similar property in a voluntary sale is admissible on the question of value of the property condemned, provided the properties sold are similar in locality and character to the property in question and not so far removed in point of time to make a comparison unjust or impossible. Dept. of Hwys. v. Schulhoff, 167 Colo. 72, 445 P.2d 402 (1968); W. Slope Gas Co. v. Lake Eldora Corp., 32 Colo. App. 293, 512 P.2d 641 (1973); Bd. of County Comm'rs v. Evergreen, Inc., 35 Colo. App. 171, 532 P.2d 777 (1974); Loloff v. Sterling, 31 Colo. 102, 71 P. 1113 (1903); Herring v. Platte River Power Auth., 728 P.2d 709 (Colo. 1986).

Determination of property similarities rests in trial court's discretion. Whether condemned property and property voluntarily sold are sufficiently similar so that sale price would be aid to the jury in fixing the value of the property condemned rests largely in the sound discretion of the trial court which will not be interfered with unless abused. Dept. of Hwys. v. Schulhoff, 167 Colo. 72, 445 P.2d 402 (1968); W. Slope Gas Co. v. Lake Eldora Corp., 32 Colo. App. 293, 512 P.2d 641 (1973); Herring v. Platte River Power Auth., 728 P.2d 709 (Colo. 1986).

Evidence of value of individual lots in subdivision admissible. Where process of subdivision, platting, recording, and development had progressed to point where individual lots were available as separate units for sale, such land would have a higher market value than land which is merely currently suitable for sale as one tract to a single person who would in turn subdivide or develop the land for sale to others. Therefore, although the question for the jury is the fair market value of the tract as a whole, evidence as to the individual lot values would be both pertinent and necessary to a consideration of the highest and best use of the land. Bd. of County Comm'rs v. Evergreen, Inc., 35 Colo. App. 171, 532 P.2d 777 (1974).

When evidence of enhancement resulting from acquisition admissible. Although evidence relating to enhancement in value as a result of the acquisition of the subjected property is generally inadmissible, there are exceptional situations where the courts will admit evidence of enhancement resulting from an acquisition and they include cases where the location of the proposed project is indefinite or where there is a supplemental taking. Williams v. City & County of Denver, 147 Colo. 195, 363 P.2d 171 (1961); City & County of Denver v. Smith, 152 Colo. 227, 381 P.2d 269 (1963).

Speculative or prospective values are not admissible in arriving at the fair market value of the property. Ruth v. Dept. of Hwys., 145 Colo. 546, 359 P.2d 1033 (1961); Dept. of Hwys. v. Schulhoff, 167 Colo. 72, 445 P.2d 402 (1968).

Fair compensation does not include speculative values either lowering or raising the compensation to be paid. Williams v. City & County of Denver, 147 Colo. 195, 363 P.2d 171 (1961).

Under some circumstances, evidence of a probable change in zoning may be admitted where such change is unrelated to the acquisition of the subject property, and where the change in zoning results from the taking of the subject property, it is not admissible. Williams v. City & County of Denver, 147 Colo. 195, 363 P.2d 171 (1961).

Expert testimony as to value based on mere speculation is not competent. An expert opinion that relies upon an estimate of construction costs that the undisputed evidence demonstrated was not only unreliable, but was mere speculation is not legally competent evidence under CRE 703. Farrar v. Total Petroleum, Inc., 799 P.2d 463 (Colo. App. 1990).

Uses available for adaptation of property considered. The use to which the property taken is subjected may be taken into consideration in determining the proper measure of damages recoverable by the owner of property. City of Denver v. Bayer, 7 Colo. 113, 2 P. 6 (1883); Colo. Cent. R.R. v. Allen, 13 Colo. 229, 22 P. 605 (1889); Colo. M. Ry. v. Brown, 15 Colo. 193, 25 P. 87 (1890).

The most profitable and advantageous use to which the property taken is adapted is the basis upon which fair compensation should be determined. Union Expl. Co. v. Moffat Tunnel Imp. Dist., 104 Colo. 109, 89 P.2d 257 (1939).

If land is so situated that it is actually available for building purposes, its value for such purposes may be considered, even if it is used as a farm or is covered with brush and boulders. Dept. of Hwys. v. Schulhoff, 167 Colo. 72, 445 P.2d 402 (1968).

It is improper, however, for the jury to consider an undeveloped tract of land as though a subdivision thereon is an accomplished fact, and such undeveloped property may not be valued on a per lot basis, the cost factor clearly being too speculative. Dept. of Hwys. v. Schulhoff, 167 Colo. 72, 445 P.2d 402 (1968).

The value of lands taken is to be estimated not merely with reference to the use to which it is at the time applied, but with reference to uses to which it is plainly adapted; thus, the owner of lands having thereon an excavation for an irrigating ditch, never used for the purpose and long since abandoned by the person who made it, is entitled to the market value of the land, taking into account that this excavation is to be considered with reference to the purpose for which it is suited. Roberts v. Scurvin Ditch Co., 22 Colo. App. 120, 125 P. 552 (1912).

Special value for particular uses is to be considered in the assessment. Denver N.W. & P. Ry. v. Howe, 49 Colo. 256, 112 P. 779 (1910).

Contract rental adding to value relevant evidence. 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).

Fair rental is relevant evidence if contract rental less than fair rental. 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).

Rental value of land considered. The rental value of land is an element for the purpose of determining present market value. Vivian v. Bd. of Trustees, 152 Colo. 556, 383 P.2d 801 (1963).

Rental of lands while in possession of petitioner is not allowable without evidence of rental value. Mulford v. Farmers' Reservoir & Irrigation Co., 62 Colo. 167, 161 P. 301 (1916).

Undivided basis rule. Where a lessor holds a fee simple subject to an encumbrance, such as a lease, 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).

Parties have opportunity to agree on apportionment of award under the undivided basis rule, 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).

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

Injury to business on condemned land not element of just compensation. Injury to a business conducted upon lands taken does not constitute an element of just compensation because the business itself is not being condemned and can be relocated elsewhere. City & County of Denver v. Hinsey, 177 Colo. 178, 493 P.2d 348 (1972).

Where income is derived from land itself, as in a farming or ranching operation, then an injury to a business conducted upon the lands may be considered in determining just compensation. City & County of Denver v. Hinsey, 177 Colo. 178, 493 P.2d 348 (1972).

It is well settled that when land occupied for business purposes is taken by eminent domain, the owner is entitled to compensation only for the value of the land and improvements but not for the value of any business conducted thereon. Since rental trailers located on condemned land are personal property and were not themselves condemned, the commission's refusal to consider income from them was correct. Bd. of County Comm'rs v. HAD Enters., Inc., 35 Colo. App. 162, 533 P.2d 45 (1974).

Property deemed waste not valueless. Property is not to be deemed worthless because the owner allows it to go to waste, or to be regarded as valueless because he is unable to put it to any use, because others may be able to use it, and make it subserve the necessities or conveniences of life, and its capability of being made thus available gives it a market value which can be readily estimated. Colo. M. Ry. v. Brown, 15 Colo. 193, 25 P. 87 (1890); Roberts v. Scurvin Ditch Co., 22 Colo. App. 120, 125 P. 552 (1912).

No interest is allowable on unliquidated claim for damages, in the absence of contract or of statute providing therefor. Union Expl. Co. v. Moffat Tunnel Imp. Dist., 104 Colo. 109, 89 P.2d 257 (1939).

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).

Exemplary damages not allowed in condemnation proceeding. Absent a provision for exemplary damages, such damages are not to be allowed in a special statutory proceeding for condemnation. Ossman v. Mtn. States Tel. & Tel. Co., 184 Colo. 360, 520 P.2d 738 (1974).

An inverse condemnation action is in the nature of a special statutory proceeding and is to be tried as if it were an eminent domain proceeding. Thus, the exemplary damages statute, which authorizes the award of exemplary damages in "all civil actions", is not applicable to an inverse condemnation action. Ossman v. Mtn. States Tel. & Tel. Co., 184 Colo. 360, 520 P.2d 738 (1974).

Landowner entitled to costs reasonably incurred. A landowner is entitled to be compensated for costs incurred by him in condemnation proceedings, provided such costs are reasonably incurred, on the theory that to require the landowner to pay such costs would reduce the just compensation for the taking. Dept. of Hwys. v. Kelley, 151 Colo. 517, 379 P.2d 386 (1963).

"Costs" means expenses necessarily incurred by reason of the litigation. Dept. of Hwys. v. Kelley, 151 Colo. 517, 379 P.2d 386 (1963).

Attorney fees are not included within meaning of "costs" and are not recoverable in eminent domain proceedings. Dept. of Hwys. v. Intermountain Term. Co., 164 Colo. 354, 435 P.2d 391 (1967).

Special improvement assessments against land taken are not "costs". Special improvement assessments against land taken by condemnation and paid by the landowner are not expenses necessarily incurred by reason thereof, and cannot be taxed as costs. Dept. of Hwys. v. Kelley, 151 Colo. 517, 379 P.2d 386 (1963).

All evidence relevant to the determination of the present market value of condemned property is admissible, including evidence of the most advantageous potential future use of the entire property, even if the condemned property would need to be dedicated as part of annexation and rezoning of the entire property in the future. Palizzi v. City of Brighton, 228 P.3d 957 (Colo. 2010).

Evidence of the value of the condemned portion as a part of the whole is admissible and should be evaluated by the fact finder when determining just compensation. Palizzi v. City of Brighton, 228 P.3d 957 (Colo. 2010).

III. DAMAGES TO RESIDUE OF PROPERTY.

Measure of damages to residue is diminuation of market value. The measure of damages to the residue of property after an eminent domain taking is the diminution of the market value by reason of the taking. W. Slope Gas Co. v. Lake Eldora Corp., 32 Colo. App. 293, 512 P.2d 641 (1973).

Damages are awarded equal to the actual diminution of its market value, if any, for any use to which the same may reasonably be put. City of Denver v. Bayer, 7 Colo. 113, 2 P. 6 (1883); Colo. Cent. R.R. v. Allen, 13 Colo. 229, 22 P. 605 (1889); Denver & R.G.R.R. v. Griffith, 17 Colo. 598, 31 P. 171 (1892); Roberts v. Scurvin Ditch Co., 22 Colo. App. 120, 125 P. 552 (1912).

Damage to the residue after land taken is to be measured by the present difference between market value before and after taking, and includes all damages from the natural, necessary, and reasonable result of the taking. Mack v. Bd. of County Comm'rs, 152 Colo. 300, 381 P.2d 987 (1963).

All damages, present and prospective, that are the natural, necessary, or reasonable result of the taking should be assessed, except such as may arise from negligent or unskillful construction. Denver City Irrigation & Water Co. v. Middaugh, 12 Colo. 434, 21 P. 565 (1889); Loloff v. Sterling, 31 Colo. 102, 71 P. 113 (1903); Farmers' Reservoir & Irrigation Co. v. Cooper, 54 Colo. 402, 130 P. 1004 (1913); Moffat v. City & County of Denver, 57 Colo. 473, 143 P. 577 (1914); Mulford v. Farmers' Reservoir & Irrigation Co., 62 Colo. 167, 161 P. 301 (1916).

Damage to residue includes all damages from the natural, necessary, and reasonable result of the taking. Mack v. Bd. of County Comm'rs, 152 Colo. 300, 381 P.2d 987 (1963).

When a portion of a parcel of land is taken from a property owner in a condemnation proceeding, the landowner is entitled to recover all damages that are the natural, necessary, and reasonable result of the taking, as measured by the reduction in the market value of the remainder of the property. The property owner is entitled to present any relevant evidence concerning diminution of market value caused by the taking. If the evidence supports a finding that a diminution of market value has occurred, compensation must be awarded. La Plata Elec. Ass'n, Inc. v. Cummins, 728 P.2d 696 (Colo. 1986); Bement v. Empire Elec. Ass'n, Inc. 28 P.2d 706 (Colo. 1986); Herring v. Platte River Power Auth., 728 P.2d 709 (Colo. 1986).

Loss and inconvenience thereby occasioned may be considered in determining the proper measure of damages recoverable by an owner whose property has been taken. City of Denver v. Bayer, 7 Colo. 113, 2 P. 6 (1883); Colo. Cent. R.R. v. Allen, 13 Colo. 229, 22 P. 605 (1889); Colo. M. Ry. v. Brown, 15 Colo. 193, 25 P. 87 (1890).

Loss of means of access to premises considered. Where the premises sought are used by the landowner as the means of access to the premises not taken, the injury occasioned by the taking will, in this respect, be special to him, and he is entitled to compensation therefor. Lavelle v. Town of Julesburg, 49 Colo. 290, 112 P. 774 (1910).

Although it would seem difficult to establish the true or market value of access rights since they are not a commodity dealt in on a buying and selling market, the right of ingress and egress to and from a person's property adds or detracts from the property value and it would seem that the true value of such rights could only be found in the difference between the value of the land and its use for any and all kinds of purposes before the disturbance or destruction of such rights, and the value of the land minus any access or disturbed or inconvenient access to the highway. Boxberger v. State Hwy. Comm'n, 126 Colo. 526, 251 P.2d 920 (1952).

Damage for loss beyond market value prohibited. The condemnor is not permitted to add an additional element of damage for loss of use beyond the market value. Vivian v. Bd. of Trustees, 152 Colo. 556, 383 P.2d 801 (1963).

Costs of restoration are not allowed as a test for determining damages to residue occasioned by a taking in condemnation cases. W. Slope Gas Co. v. Lake Eldora Corp., 32 Colo. App. 293, 512 P.2d 641 (1973).

Evidence of aesthetic damage and damage for loss of view, which would result from construction of power line, is admissible in assessing damages to remainder since unsightliness or loss of view did not affect any other owner or public in a general way but did specifically affect remainder. La Plata Elec. Ass'n, Inc. v. Cummins, 703 P.2d 592 (Colo. App. 1985), aff'd, 728 P.2d 696 (Colo. 1986).

Jury cannot consider general benefits. General benefits, which accrue to the residue of property after a condemnation by reason of the improvement, may not be considered by the jury in arriving at the market value of the residue after the taking. Mack v. Bd. of County Comm'rs, 152 Colo. 300, 381 P.2d 987 (1963).

"Benefit". "Benefit", as used in eminent domain law, is not equivalent or interchangeable with "benefit" that arises out of special improvement. City of Englewood v. Weist, 184 Colo. 325, 520 P.2d 120 (1974).

"Benefit" that justifies a special assessment tax is not the same "benefit" that must be calculated and deducted from a landowner's recovery in an eminent domain proceeding. City of Englewood v. Weist, 184 Colo. 325, 520 P.2d 120 (1974).

General benefit cannot be set off against damages. General benefits that result to the owner in common with the public and other nearby owners cannot be set off against damages. W. Slope Gas Co. v. Lake Eldora Corp., 32 Colo. App. 293, 512 P.2d 641 (1973).

Special benefits that may be set off against damages are those benefits that accrue directly to the residue as a result of the construction of the improvement and that directly and particularly benefit that residue as opposed to benefitting the public generally. W. Slope Gas Co. v. Lake Eldora Corp., 32 Colo. App. 293, 512 P.2d 641 (1973); E-470 Pub. Hwy. Auth. v. 455 Co., 983 P.2d 149 (Colo. App. 1999), rev'd on other grounds, 3 P.3d 18 (Colo. 2000).

Special benefits may generally be set off against a condemnation award but cannot be set off where the remaining property is subject to an assessment for those same benefits. E-470 Pub. Hwy. Auth. v. 455 Co., 983 P.2d 149 (Colo. App. 1999), rev'd on other grounds, 3 P.3d 18 (Colo. 2000).

Trial court abused its discretion by granting landowners' motion in limine to exclude all evidence of special benefits accruing to the landowners' property as a result of the E-470 highway construction. The commissioners should have had the opportunity at trial to consider all parties' evidence of the special benefits accruing to the remaining property. Both the highway authority's and the landowners' appraisers agreed that construction of the E-470 conferred special benefits on the landowners' remaining property. By excluding this evidence of special benefits, the trial court effectively ensured that the landowners would recover in an amount greater than they suffered. E-470 Pub. Hwy. Auth. v. 455 Co., 3 P.3d 18 (Colo. 2000).

Whether the highway expansion fee is labeled as a "special fee" or a "special assessment", the mere existence of such fee is not, in and of itself, an adequate basis for excluding all evidence of special benefits for two reasons: (1) The fee is speculative; and (2) the fee does not charge for the same benefit as those the highway authority sought to introduce into evidence. E-470 Pub. Hwy. Auth. v. 455 Co., 3 P.3d 18 (Colo. 2000).

City's collection of special assessment tax not foreclosed. A city's failure to prove any benefit to the landowner's property in the section 38-1-101 proceeding does not foreclose the city from collecting a special assessment tax. The city is entitled to specially assess for the benefit accruing to the landowner's property by the construction of the special improvement. City of Englewood v. Weist, 184 Colo. 325, 520 P.2d 120 (1974).

Record that included contradictory and conflicting evidence supported the trial court's determination that diminution, if any, of the value of condemnee's remaining property was de minimis even though condemnee testified that he was forced to sell his remaining lots low because the condemnation action could possibly result in a loss of privacy, an increased traffic flow, and an inability to construct a security gate at the entrance to the subdivision. Colo. Mtn. Prop. v. Heineman, 860 P.2d 1388 (Colo. App. 1993).

Trial court's refusal to award damages based on the purportedly lower sales prices of condemnee's lots is consistent with rule that compensation in a condemnation action is measured either at the time the petitioner is authorized to take possession or at the date of the trial or hearing in which compensation is assessed, particularly where the trial court, within its discretion, found that condemnee failed to meet the burden of establishing that claimed loss. Colo. Mtn. Prop. v. Heineman, 860 P.2d 1388 (Colo. App. 1993).

Trial court did not err in awarding nominal damages since the record supports its finding that there was not evidence presented of any additional cost of the roadway other than evidence of initial costs that were not associated with the subsequent grant of the access easement. Colo. Mtn. Prop. v. Heineman, 860 P.2d 1388 (Colo. App. 1993).

No unjust enrichment where the record shows that the development costs in building roadway would have been incurred by condemnee regardless of whether condemnor pursued his rights in condemnation. Colo. Mtn. Prop. v. Heineman, 860 P.2d 1388 (Colo. App. 1993).