Colorado § 43-1-208 - State highway - damages - eminent domain.

§ 43-1-208. State highway - damages - eminent domain.

(1) If the chief engineer deems it desirable to establish, open, relocate, widen, add mass transit to, or otherwise alter a portion of a state highway, negotiations to acquire the land have failed, and the chief engineer determines that filing a petition in condemnation pursuant to article 1 of title 38 is necessary or if the commission otherwise so requires, the chief engineer shall make a written report to the commission describing the portion of the highway to be established, opened, added to, or changed and the land of each landowner to be acquired by a petition in condemnation. The chief engineer shall accompany the report with a map showing the present and proposed boundaries of the portion of the highway to be established, opened, added to, or changed, together with an estimate of the damages and benefits accruing to each landowner against whose land a petition in condemnation will be filed. The chief engineer may also acquire land by purchase or exchange or through negotiations prior to the filing of a petition in condemnation and is not required to provide any information about land so acquired to the commission under this section.

(2) If, upon receipt of the report and after providing ten days' written notice to the affected landowner of the date, time, and location of the commission meeting at which a resolution to authorize a proposed action and the filing of a petition in condemnation for land will be considered, which notice shall be sent by first-class mail to the mailing address, if any, of the land that is the subject of the resolution and any other mailing address of the landowner used for purposes of negotiations with the landowner, and providing the landowner with an opportunity to be heard at the meeting, the commission decides that public interest or convenience will be served by the proposed action and the filing of a petition in condemnation for the land pursuant to article 1 of title 38, it shall adopt a resolution approving the action and the filing of a petition in condemnation for the land. Thereupon the commission, acting through the department, shall proceed in the acquisition of the land, under articles 1 to 7 of title 38, without tender or other proceedings under this part 2.

(3) Repealed.

(4) Notwithstanding any other provision of this section, the commission may not acquire through condemnation any interest in oil, natural gas, or other mineral resources beneath land acquired as authorized by this section except to the extent required for subsurface support.

Source: L. 21: p. 370, § 20. C.L. § 1404. CSA: C. 143, § 111. CRS 53: § 120-3-8. C.R.S. 1963: § 120-3-8. L. 91: (3) amended, p. 1091, § 107, effective July 1. L. 2008: (1) amended and (4) added, p. 628, § 3, effective August 5. L. 2019: (1) and (2) amended and (3) repealed, (SB 19-017), ch. 67, p. 242, § 2, effective August 2.

Cross references: For the legislative declaration in SB 19-017, see section 1 of chapter 67, Session Laws of Colorado 2019.

ANNOTATION

Law reviews. For article, "Mineral Ownership Under Highways, Streets, Alleys and Ditches", see 17 Colo. Law. 43 (1988).

Where the state highway department paid into court the amount of an award in condemnation proceedings, it discharged its obligation and was relieved of further responsibility for an unpaid city tax lien assessed for the creation of a local public improvement district. Southworth v. Dept. of Hwys., 176 Colo. 82, 489 P.2d 204 (1971).

Remedy for unlawful taking is against state officer. There is a remedy for an unauthorized and unlawful taking or injury of private land for public use without compensation by a state agency. The remedy is against the state officer, individually, to prevent his unlawful act or for appropriate redress if it has been consummated. People ex rel. Watrous v. District Court of United States, 207 F.2d 50 (10th Cir. 1953).

Where the relief sought cannot be granted by preventive action against the state officer and will require affirmative sovereign action by the state, the suit is one against the state. People ex rel. Watrous v. District Court of United States, 207 F.2d 50 (10th Cir. 1953).

Neither section 15 of art. II, Colo. Const., nor this section constitutes a consent by the state to be sued for the liability imposed by the constitutional provision for the taking or injury of private property for public use. People ex rel. Watrous v. District Court of United States, 207 F.2d 50 (10th Cir. 1953).

The power of eminent domain is an attribute of sovereignty, conditioned by the requirement that just compensation be paid for the taking. People ex rel. Watrous v. District Court of United States, 207 F.2d 50 (10th Cir. 1953).

The only authority of the highway commission to sue is conferred by this section and limited solely to proceedings in eminent domain. Mitchell v. Bd. of Comm'rs, 112 Colo. 582, 152 P.2d 601 (1944).

This section and section 43-1-217 are valid statutory authority under which the state highway commission may lawfully condemn public or private property within a municipality for the purpose of continuing state highways into or through such city or town. Town of Greenwood Vill. v. District Court, 138 Colo. 283, 332 P.2d 210 (1958).

The statutes do not require the consent or agreement of a municipality as a condition precedent to the exercise of the power of eminent domain. Town of Greenwood Vill. v. District Court, 138 Colo. 283, 332 P.2d 210 (1958).

Section 43-2-135(1)(j), authorizing resort to agreement concerning the acquisition of property between a municipality and the state highway department, is an optional method and permissible as a substitute for proceedings in condemnation, consent of a municipality is not a prerequisite to condemnation of private property within its corporate limits, nor public property already in use for street purposes, the fee title to which lies in a town. Town of Greenwood Vill. v. District Court, 138 Colo. 283, 332 P.2d 210 (1958).

Section does not authorize condemnation of a private way of necessity for property that is not connected with highway alteration but which is deemed necessary to fulfill contractual obligation. Dept. of Hwys. v. Denver & Rio Grande W.R., 757 P.2d 181 (Colo. App. 1988), aff'd on other grounds, 789 P.2d 1088 (Colo. 1990).

This section grants condemnation authority to the transportation commission, not the department of transportation, and the commission may not delegate that authority to the department. Unlike other circumstances in which statutes grant the department authority to determine whether to acquire property by condemnation, the decision to approve the acquisition of property for the kinds of highway alterations enumerated in this section, and whether to limit the amount for which that property may be acquired, is a decision vested solely in the commission. Dept. of Transp. v. Amerco Real Estate Co., 2016 CO 62, 380 P.3d 117.

The eminent domain powers granted pursuant to subsection (3), authorizing the transportation commission to acquire the lands of private persons "for state highway purposes", include the authority to condemn lands adjacent to a state highway for construction of a parking and transit facility that is an integral part of a broader state highway improvement project. Dept. of Transp. v. Stapleton, 97 P.3d 938 (Colo. 2004).

As a result of the 2008 legislative expansion of this section, subsection (4) prohibits the transportation commission from acquiring through condemnation a right to any mineral resource beneath land 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. Dept. of Transp. v. Gypsum Ranch Co., 244 P.3d 127 (Colo. 2010).