Colorado § 38-1-115 - Contents of report or verdict.

§ 38-1-115. Contents of report or verdict.

(1) Except as provided in this section, the report of the commissioners or the verdict of the jury shall contain:

(a) An accurate description of the land taken;

(b) The value of the land or property actually taken;

(c) The damages, if any, to the residue of such land or property; and

(d) The amount and value of the benefit.

(2) No findings as to damages and benefits as provided in paragraphs (c) and (d) of subsection (1) of this section shall be required in cases involving the total taking of property, nor shall either or both of such findings be required in cases involving the partial taking of property unless evidence thereof has been received by the commissioners or jury.

(3) The report of the commissioners or the verdict of the jury may also contain such other findings or answers to interrogatories as the court in its discretion may require to establish the value of the property condemned on an undivided basis.

Source: G.L. § 1075. G.S. C. § 254. R.S. 08: § 2432. C.L. § 6328. CSA: C. 61, § 18. CRS 53: § 50-1-18. L. 63: p. 477, § 3. C.R.S. 1963: § 50-1-18. L. 66: p. 30, § 3.

ANNOTATION

I. General Consideration.

II. Requirement as to Description of the Land Taken.

III. Requirement as to Value of Land Taken.

IV. Requirement as to Amount and Value of Benefits to Residue.

I. GENERAL CONSIDERATION.

This section is mandatory. Denver & R.G.R.R. v. Stark, 16 Colo. 291, 26 P. 779 (1891); Otero Canal Co. v. Fosdick, 20 Colo. 522, 39 P. 332 (1895); Colo. Fuel & Iron Co. v. Four Mile Ry., 29 Colo. 90, 66 P. 902 (1901); Denver N.W. & P. Ry. v. Howe, 49 Colo. 256, 112 P. 779 (1910).

Section must be strictly construed. Pueblo v. Rudd, 5 Colo. 270 (1880); Rio Grande S. Ry. v. Knight, 1 Colo. App. 219, 28 P. 19 (1891).

Failure of verdict to include required contents deemed fatal. A failure to include in the verdict those things required by the section is fatal. Norris v. City of Pueblo, 12 Colo. App. 290, 55 P. 747 (1898).

Province of jury is to determine damages to be awarded the owner of the property taken. Colo. Fuel & Iron Co. v. Four Mile Ry., 29 Colo. 90, 66 P. 902 (1901); Tegeler v. Schneider, 49 Colo. 574, 114 P. 288 (1911).

The question of the necessity for taking for municipal purposes is not for the jury. Warner v. Town of Gunnison, 2 Colo. App. 430, 31 P. 238 (1892).

Submission of questions not required properly refused. Any attempt to submit to the jury any questions, save those which it is required to report upon, is properly refused. Colo. Fuel & Iron Co. v. Four Mile Ry., 29 Colo. 90, 66 P. 902 (1901).

When directions requiring additional evidence not prejudicial. Where the report of the commissioners, based upon the evidence presented, was in compliance with this section, the directions of the trial court requiring more evidence, to the extent, were surplusage not affecting the substantial rights of the parties, therefore, not prejudicial. Dept. of Hwys. v. Intermountain Term. Co., 164 Colo. 354, 435 P.2d 391 (1967).

Respondent to show cash value of property. The burden rests upon the respondent to show by a preponderance of the evidence the present actual cash value of the property taken, as well as the damages, if any, resulting to the residue, but the burden of showing benefits, if any, accruing to the residue rests upon the petitioner. Bd. of County Comm'rs v. Noble, 117 Colo. 77, 184 P.2d 142 (1947).

Petitioner to show benefits accruing to residue. The burden of showing benefits, if any, accruing to the residue rests upon the petitioner. Bd. of County Comm'rs v. Noble, 117 Colo. 77, 184 P.2d 142 (1947).

When objection to report or verdict required. Any objection to the commissioners' report must be made when it is returned, before the commissioners are discharged. Evergreen Fire Prot. Dist. v. Huckeby, 626 P.2d 744 (Colo. App. 1981).

Objection to the form or substance of a verdict must be made at the time of its return, and before the discharge of the jury. Ft. Lyon Canal Co. v. Farnan, 48 Colo. 414, 109 P. 861 (1910).

Applied in Searl v. Sch. Dist. No. 2, 133 U.S. 553 (1890); Pub. Serv. Co. v. City of Loveland, 79 Colo. 216, 245 P. 493 (1926); Wiley Drainage Dist. v. Semmens, 80 Colo. 365, 250 P. 527 (1926).

II. REQUIREMENT AS TO DESCRIPTION OF THE LAND TAKEN.

Description as land "tinted pink" on map insufficient. It is not a sufficient description to merely refer to the land as the land described in the petition, nor as the land "tinted pink" on the map. Norris v. City of Pueblo, 12 Colo. App. 290, 55 P. 747 (1898).

III. REQUIREMENT AS TO VALUE OF LAND TAKEN.

Verdict must state value of property taken for conformity. The verdict does not conform to the requirements of subsection (1)(b), where it does not state the value of the property actually taken. Sand Creek Lateral Irrigation Co. v. Davis, 17 Colo. 326, 29 P. 742 (1892).

Stating gross amount in verdict as value deemed noncompliance. Stating a gross amount as the value of the property taken to cover right-of-way and enlargement for a certain distance, certainly is not a compliance with subsection (1)(b), and neither can the other amounts assessed as damages to cover certain work and improvements be regarded as an ascertainment of the value of the property taken. Sand Creek Lateral Irrigation Co. v. Davis, 17 Colo. 326, 29 P. 742 (1892).

IV. REQUIREMENT AS TO AMOUNT AND VALUE OF BENEFITS TO RESIDUE.

Verdict must show consideration and determination of benefits question. The verdict must affirmatively show that the question of benefits was considered and determined; otherwise it was insufficient and must be vacated. Ft. Lyon Canal Co. v. Farnan, 48 Colo. 414, 109 P. 861 (1910).

Where the verdict as to this matter was as follows: "That the amount and value of the benefits received by the defendants due to the construction of this ditch, is dollars", the question of the benefits was considered and passed upon, and benefits were nothing. Ft. Lyon Canal Co. v. Farnan, 48 Colo. 414, 109 P. 861 (1910).

Verdict not fixing definite value to be rejected. A verdict not fixing any definite amount or value of the supposed benefit, in dollars, is to be rejected. Denver N.W. & P. Ry. v. Howe, 49 Colo. 256, 112 P. 779 (1910).