2021 Colorado Code
Title 38 - Property - Real and Personal
Article 1 - Proceedings
Part 1 - Proceedings - Requirements and Limitations - Determination of Just Compensation
§ 38-1-101. Compensation - Public Use - Commission - Jury - Court - Prohibition on Elimination of Nonconforming Uses or Nonconforming Property Design by Amortization - Limitation on Extraterritorial Condemnation by Municipalities - Definitions

1. 1. Notwithstanding any other provision of law, in order to protect property rights, without the consent of the owner of the property, private property shall not be taken or damaged by the state or any political subdivision for a public or private use without just compensation.
   2. 1. For purposes of satisfying the requirements of this section, “public use” shall not include the taking of private property for transfer to a private entity for the purpose of economic development or enhancement of tax revenue. Private property may otherwise be taken solely for the purpose of furthering a public use. (b) (I) For purposes of satisfying the requirements of this section, “public use” shall not include the taking of private property for transfer to a private entity for the purpose of economic development or enhancement of tax revenue. Private property may otherwise be taken solely for the purpose of furthering a public use.
      2. By enacting subparagraph (I) of this paragraph (b), the general assembly does not intend to create a new procedural mechanism to bring about the condemnation of private property. By enacting subparagraph (I) of this paragraph (b), the general assembly intends to limit only as provided in subparagraph (I) of this paragraph (b), and not expand, the definition of “public use”.

   3. Nothing in this section shall affect the right of a private party to condemn property as otherwise provided by law.

2. 1. In all cases in which compensation is not made by the state in its corporate capacity, such compensation shall be ascertained by a board of commissioners of not less than three disinterested and impartial freeholders pursuant to section 38-1-105 (1) or by a jury when required by the owner of the property as prescribed in section 38-1-106. All questions and issues, except the amount of compensation, shall be determined by the court unless all parties interested in the action stipulate and agree that the compensation may be so ascertained by the court. In the event of such stipulation and agreement, the court shall proceed as provided in this article for the trial of such causes by a board of commissioners or jury.
   2. Notwithstanding any other provision of law, in any condemnation action, without the consent of the owner of the property, the burden of proof is on the condemning entity to demonstrate, by a preponderance of the evidence, that the taking of private property is for a public use, unless the condemnation action involves a taking for the eradication of blight, in which case the burden of proof is on the condemning entity to demonstrate, by clear and convincing evidence, that the taking of the property is necessary for the eradication of blight.

3. 1. Notwithstanding any other provision of law to the contrary, a local government shall not enact or enforce an ordinance, resolution, or regulation that requires a nonconforming property use that was lawful at the time of its inception to be terminated or eliminated by amortization.
   2. (Deleted by amendment,L. 2006, p. 1749, § 1, effective June 6, 2006.)

4. 1. The general assembly hereby finds and declares that:
      1. The acquisition by condemnation by a home rule or statutory municipality of property outside of its territorial boundaries involves matters of both statewide and local concern because such acquisition by condemnation may interfere with the plans and operations of other local governments and of the state.
      2. In order that each local government and the state enjoy the greatest flexibility with respect to the planning and development of land within its territorial boundaries, it is necessary that the powers of a home rule or statutory municipality to acquire by condemnation property outside of its territorial boundaries be limited to the narrowest extent permitted by article XX of the state constitution.

   2. 1. Effective January 1, 2004, no home rule or statutory municipality shall either acquire by condemnation property located outside of its territorial boundaries nor provide any funding, in whole or in part, for the acquisition by condemnation by any other public or private party of property located outside of its territorial boundaries; except that the requirements of this paragraph (b) shall not apply to condemnation for water works, light plants, power plants, transportation systems, heating plants, any other public utilities or public works, or for any purposes necessary for such uses. (b) (I) Effective January 1, 2004, no home rule or statutory municipality shall either acquire by condemnation property located outside of its territorial boundaries nor provide any funding, in whole or in part, for the acquisition by condemnation by any other public or private party of property located outside of its territorial boundaries; except that the requirements of this paragraph (b) shall not apply to condemnation for water works, light plants, power plants, transportation systems, heating plants, any other public utilities or public works, or for any purposes necessary for such uses.
      2. Effective January 1, 2004, no home rule or statutory municipality shall either acquire by condemnation property located outside of its territorial boundaries for the purpose of parks, recreation, open space, conservation, preservation of views or scenic vistas, or for similar purposes, nor provide any funding, in whole or in part, for the acquisition by condemnation by any other private or public party of property located outside of its territorial boundaries for the purpose of parks, recreation, open space, conservation, preservation of views or scenic vistas, or for similar purposes except where the municipality has obtained the consent of both the owner of the property to be acquired by condemnation and the governing body of the local government in which territorial boundaries the property is located.

   3. Effective January 1, 2004, the provisions of this subsection (4) shall supersede any inconsistent statutory provisions whether contained in this title or any other title of the Colorado Revised Statutes.

5. For purposes of this section, unless the context otherwise requires:
   1. “Local government” means a county, city and county, town, or home rule or statutory city.
   2. “Political subdivision” means a county; city and county; city; town; service authority; school district; local improvement district; law enforcement authority; urban renewal authority; city or county housing authority; water, sanitation, fire protection, metropolitan, irrigation, drainage, or other special district; or any other kind of municipal, quasi-municipal, or public corporation organized pursuant to law.

History. Source: G.L. § 1058. G.S. C. § 237. R.S. 08: § 2415. C.L. § 6311. CSA: C. 61, § 1. CRS 53: § 50-1-1. L. 61: P. 370, § 1. C.R.S. 1963: § 50-1-1. L. 84: Entire section amended, p. 972, § 1, effective February 17. L. 2003: Entire section amended, p. 2667, § 2, effective June 6. L. 2004: (4) added, p. 1747, § 6, effective June 4. L. 2006: (1), (2), and (3) amended and (5) added, p. 1749, § 1, effective June 6. History. Source: G.L. § 1058. G.S. C. § 237. R.S. 08: § 2415. C.L. § 6311. CSA: C. 61, § 1. CRS 53: § 50-1-1. L. 61: P. 370, § 1. C.R.S. 1963: § 50-1-1. L. 84: Entire section amended, p. 972, § 1, effective February 17. L. 2003: Entire section amended, p. 2667, § 2, effective June 6. L. 2004: (4) added, p. 1747, § 6, effective June 4. L. 2006: (1), (2), and (3) amended and (5) added, p. 1749, § 1, effective June 6.

1. For jurisdiction of federal court, when properly invoked, see County of Allegheny v. Frank Mashuda Company, 360 U.S. 185, 79 S. Ct. 1060, 3 L. Ed. 2d 1163 (1959), and Louisiana Power and Light Company v. City of Thibodaux, 360 U.S. 25, 79 S. Ct. 1070, 3 L. Ed. 2d 1058 (1959); for taking private property for private use, see § 14 of art. II, Colo. Const.; for taking property for public use, see § 15 of art. II, Colo. Const.
2. For the legislative declaration in the 2003 act amending this section, see section 1 of chapter 420, Session Laws of Colorado 2003.

Analysis

• I. GENERAL CONSIDERATION.
• II. JURISDICTION AND PROCEDUREIN CONDEMNATION.
  • A. In General.
  • B. Question of Necessity.

• III. DEFENSES AND REMEDIES.
• IV. ABANDONMENT OF PROCEEDING.
• V. JUST COMPENSATION.
  • A. Right to Compensation.
  • B. Amount of Compensation.

• VI. SPECIFIC TYPES OF PROPERTY SUBJECT TO CONDEMNATION.
• VII. REVIEW BY SUPREME COURT.

Law reviews. For article, “Appropriations of Water for a Preferred Purpose”, see 22 Rocky Mt. L. Rev. 422 (1950). For article, “Eminent Domain in Colorado”, see 29 Dicta 313 (1952). For article, “Proposed Eminent Domain Law for Colorado”, see 29 Dicta 332 (1952). For note, “Expenses of Moving in Eminent Domain Cases”, see 30 Dicta 269 (1953). For article, “Recent Development in Colorado Eminent Domain”, see 27 Rocky Mt. L. Rev. 23 (1954). For comment on Russell Coal Co. v. Bd. of Comm'rs, 129 Colo. 330 , 270 P.2d 772 (1954), appearing below, see 27 Rocky Mt. L. Rev. 234 (1955). For comment discussing church condemnation, see 46 U. Colo. L. Rev. 43 (1974). For article, “Inverse Condemnation -- A Viable Alternative”, see 51 Den. L.J. 529 (1974). For comment examining factors to be considered in making an election between trespass and inverse condemnation as remedies for uncompensated appropriation of land, see 52 Den. L.J. 645 (1975). For comment, “Water: Statewide or Local Concern? City of Thornton v. Farmers Reservoir & Irrigation Co., 194 Colo. 526 , 575 P.2d 382 (1978)”, see 56 Den. L. J. 625 (1979). For comment, “People v. Emmert, 198 Colo. 137 , 597 P.2d 1025 (1979): A Step Backward for Recreational Water Use in Colorado”, see 52 U. Colo. L. Rev. 247 (1981). For comment, “Bubb v. Christensen: The Rights of the Private Landowner Yield to the Rights of the Water Appropriator Under the Colorado Doctrine”, see 58 Den. L.J. 825 (1981). For article, “Assemblage, Design and Construction for Real Estate Developments”, see 11 Colo. Law. 2297 (1982). For article, “Introduction to a Condemnation Case”, see 13 Colo. Law. 420 (1984). For article, “Mineral Ownership Under Highways, Streets, Alleys and Ditches”, see 17 Colo. Law. 43 (1988). For comment, “Eminent Domain: A Case Comment -- Mountain States Legal Foundation v. Hodel”, see 65 Den. U. L. Rev. 581 (1988). For article, “Home Rule, Extraterritorial Impact, and the Region”, see 86 Den. U.L. Rev. 1271 (2009). For article, “Town of Telluride v. San Miguel Valley Corp.: Extraterritoriality and Local Autonomy”, see 86 Den. U.L. Rev. 1311 (2009). For article, “Constitutional Home Rule and Judicial Scrutiny”, see 86 Den. U.L. Rev. 1337 (2009). For article, “Telluride's Tale of Eminent Domain, Home Rule, and Retroactivity”, see 86 Den. U.L. Rev. 1433 (2009). For comment, “Minority Interests, Majority Politics: A Comment on Richard Collins' ‘Telluride's Tale of Eminent Domain, Home Rule, and Retroactivity'”, see 86 Den. U.L. Rev. 1459 (2009).

Eminent domain provisions not in conflict with federal constitution. The eminent domain provisions of this state are not in conflict with the fourteenth amendment of the federal constitution.Pine Martin Mining Co. v. Empire Zinc Co., 90 Colo. 529 , 11 P.2d 221 (1932).

Each landowner holds his estate subject to the public necessity for the exercise of the right of eminent domain for public purposes, and he cannot evade this by any agreement with his neighbor, nor can his neighbor acquire a right from a private individual which imposes a new burden upon the public in the exercise of the right of eminent domain. Smith v. Clifton San. Dist., 134 Colo. 116 , 300 P.2d 548 (1956).

The authority to exercise the right of eminent domain for public uses is based upon the theory that property is granted the subject upon condition that it may be retaken to serve the necessities of the sovereign power. Tanner v. Treasury Tunnel Mining & Reduction Co., 35 Colo. 593 , 83 P. 464 (1906); People ex rel. Watrous v. District Court, 207 F.2d 50 (10th Cir. 1953).

Right of condemnation has been restrained by constitutional limitations in the protection of individual property rights. Potashnik v. Pub. Serv. Co., 126 Colo. 98 , 247 P.2d 137 (1952); Beth Medrosh Hagodol v. City of Aurora, 126 Colo. 267 , 248 P.2d 732 (1952).

Both § 15 of art. II, Colo. Const., and this section protect an individual's vested rights and prohibit the taking thereof for public or private use without condemnation under proper proceedings and just compensation given therefor. Stuart v. County Comm'rs, 25 Colo. App. 568, 139 P. 577 (1914).

Condemnation right exists only under powers specifically granted by the general assembly or, in some cases, where the power to condemn specific property is provided by home-rule cities to which the general assembly has delegated its power in such matters. Colo. Cent. R.R. v. Allen, 13 Colo. 229 , 22 P. 604 (1889); Potashnik v. Pub. Serv. Co., 126 Colo. 98 , 247 P.2d 137 (1952); Beth Medrosh Hagodol v. City of Aurora, 126 Colo. 267 , 248 P.2d 732 (1952).

Power is vested in state. It is fundamental that the power of eminent domain is vested in the state of Colorado. Such power may not be exercised by a governmental subdivision or other entity unless the power has been delegated to it by the general assembly. Bd. of County Comm'rs v. Intermountain Rural Elec. Ass'n, 655 P.2d 831 (Colo. 1982).

That the state constitution permits private property to be taken for certain specified uses is an implied declaration that such uses are so closely connected with the public interest as to be at least quasi public or, in a modified sense, affected with a public interest. Lamborn v. Bell, 18 Colo. 346 , 32 P. 989 (1893); Gibson v. Cann, 28 Colo. 499 , 66 P. 879 (1901); Ortiz v. Hansen, 35 Colo. 100 , 83 P. 964 (1905); Kaschke v. Camfield, 46 Colo. 60 , 102 P. 1061 (1909); Pine Martin Mining Co. v. Empire Zinc Co., 90 Colo. 529 , 11 P.2d 221 (1932).

Private property cannot be taken by government, except for public purposes. Pine Martin Mining Co. v. Empire Zinc Co., 90 Colo. 529 , 11 P.2d 221 (1932).

Taking of private property to be accompanied by compensation to owner. Pine Martin Mining Co. v. Empire Zinc Co., 90 Colo. 529 , 11 P.2d 221 (1932).

Takings questions present mixed issues of law and fact. An appellate court must defer to a trial court's factual determinations but reviews de novo the legal determination of whether something is for a public use. Carousel Farms Metro. v. Woodcrest, 2019 CO 51, 442 P.3d 402.

Effect of state agency's entry upon land without paying just compensation. When a state agency enters upon land or injures land without paying just compensation therefor, or without having commenced condemnation proceedings to ascertain the compensation due for the taking or injury, the act of the state agency is unauthorized and unlawful and is not the act of the state of Colorado. People ex rel. Watrous v. District Court, 207 F.2d 50 (10th Cir. 1953).

Remedy against state officer. The remedy for an unauthorized and unlawful taking of or injury to private land for public use without compensation by a state agency 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, 207 F.2d 50 (10th Cir. 1953).

Municipal ordinance which imposed reasonable limitations on billboards on private property, thereby requiring modification of said billboards, did not constitute a taking for which just compensation must be paid. Nat'l Adver. v. Bd. of Adjustment of City & County of Denver, 800 P.2d 1349 (Colo. App. 1990).

“Private use” construed. The words “private use” do not mean a strictly private use, that is to say, one having no relation to the public interest. Lamborn v. Bell, 18 Colo. 346 , 32 P. 989, 20 L.R.A. 241 (1893); Gibson v. Cann, 28 Colo. 499 , 66 P. 879 (1901); Ortiz v. Hansen, 35 Colo. 100 , 83 P. 964 (1905); Kaschke v. Camfield, 46 Colo. 60 , 102 P. 1061 (1909); Pine Martin Mining Co. v. Empire Zinc Co., 90 Colo. 529 , 11 P.2d 221 (1932).

Exercise of eminent domain unrestricted by contract. Parties may not by contract between themselves restrict the exercise of the power of eminent domain. Smith v. Clifton San. Dist., 134 Colo. 116 , 300 P.2d 548 (1956).

Property owners of adjacent property cannot thwart a public improvement by the execution of restrictive covenants. Smith v. Clifton San. Dist., 134 Colo. 116 , 300 P.2d 548 (1956).

The holding and underlying reasoning of Smith v. Clifton San. Dist., 134 Colo. 116 , 300 P.2d 548 (1956), aren't limited to that case's particular facts and its holding broadly applies to any situation in which a restrictive covenant is interposed as an obstacle to a condemning authority's attempt to obtain property for public use through eminent domain. A restrictive covenant of this type isn't a compensable property interest for eminent domain purposes. Town of Monument v. State, 2018 COA 148 , 467 P.3d 1126.

Public service company is authorized to acquire by condemnation interests in real property from private owners, provided, inter alia, that the purpose for which the condemned property is sought is determined to be a public purpose. Shaklee v. District Court, 636 P.2d 715 (Colo. 1981).

Sanitation district empowered to condemn lands. A sanitation district is a body politic or corporate with power to condemn lands for proper purposes. Smith v. Clifton San. Dist., 134 Colo. 116 , 300 P.2d 548 (1956).

Landowner has right to sue trespasser with power of eminent domain. A landowner has a right to sue in trespass even though the trespasser may have the statutory power of eminent domain with respect to the land on which the trespass occurs. Ossman v. Mtn. States Tel. & Tel. Co., 184 Colo. 360 , 520 P.2d 738 (1974).

Inverse condemnation tried as if eminent domain proceeding. An inverse condemnation action is based on § 15 of art. II, Colo. Const. Since it is based on the “takings” clause of the state constitution, it is to be tried as if it were an eminent domain proceeding. Ossman v. Mtn. States Tel. & Tel. Co., 184 Colo. 360 , 520 P.2d 738 (1974); Hayden v. Bd. of County Comm'rs, 41 Colo. App. 102, 580 P.2d 830 (1978); Linnebur v. Pub. Serv. Co. of Colo., 716 P.2d 1120 (Colo. 1986).

Mandamus. Mandamus cannot be used to compel the state to bring and prosecute proceedings in condemnation because mandamus would require affirmative action by the state in the exercise of its sovereign power of eminent domain. People ex rel. Watrous v. District Court, 207 F.2d 50 (10th Cir. 1953).

Doctrine of inseparability does not apply. If the legislature wanted to recognize the doctrine of inseparability, which is an exception to the general rule of recovery, it would have amended the statute to allow for the exception. Dept. of Transp. v. Marilyn Hickey Ministries, 129 P.3d 1068 (Colo. App. 2005), rev'd on other grounds, 159 P.3d 111 (Colo. 2007).

General assembly enacted subsection (3)(a) to restrict the abilities of local governments to unjustly deprive property owners of their inalienable rights. JAM Rest., Inc. v. City of Longmont, 140 P.3d 192 (Colo. App. 2006).

Subsection (3)(a) is constitutional, does not violate the home rule amendment to the Colorado Constitution, and prevails over municipality's zoning ordinance as applied to landowner. Subsection (3)(a) enforces constitutionally protected property rights and prohibits the unconstitutional taking of private property without just compensation. Constitutionally protected property interests are a matter of statewide concern and must be treated uniformly throughout the state. While zoning regulations are typically a matter of local concern, subsection (3)(a) is not a zoning regulation. Rather, it prohibits the unconstitutional taking of property without just compensation. JAM Rest., Inc. v. City of Longmont, 140 P.3d 192 (Colo. App. 2006).

Because inalienable property rights are involved, both local and state concerns are implicated, and the constitution cannot be read to dictate the matter at issue as one of exclusively local concern. Although the amortization of sexually oriented businesses in a municipality may result in those businesses relocating to neighboring municipalities, there is no showing that this possibility will seriously impact residents outside the municipality. Thus, extraterritorial impact of zoning ordinance is not substantial. Although zoning regulations generally have little extraterritorial impact and are traditionally a matter of local concern, in consideration of the legislative declaration respecting subsection (3)(a) and the importance of protecting constitutionally based property rights, preventing the taking of private property without just compensation is a matter of statewide or, at least, mixed concern. JAM Rest., Inc. v. City of Longmont, 140 P.3d 192 (Colo. App. 2006).

To enforce property rights as mandated in the Colorado Constitution, statute prohibits local government from eliminating or terminating nonconforming uses that were lawful at their inception by amortization. Statute does not address whether amortization periods are reasonable. JAM Rest., Inc. v. City of Longmont, 140 P.3d 192 (Colo. App. 2006).

Subsection (3)(a) cannot be applied retroactively to negate a municipal ordinance that required a licensee to operate in an appropriately zoned area of the city. Absent legislative intent to the contrary, a statute is presumed to operate prospectively on transactions occurring after its effective date, rather than retroactively on transactions that have already occurred or on rights and obligations that existed before its effective date. Z.J. Gifts D-2, L.L.C. v. City of Aurora, 93 P.3d 633 (Colo. App. 2004).

Subsection (3)(a) applies to injunctions sought after its effective date. Because municipality did not seek to enforce zoning provisions of ordinance until after statute became effective, no retroactive application of statute occurred. JAM Rest., Inc. v. City of Longmont, 140 P.3d 192 (Colo. App. 2006).

Since the language in subsection (3)(a) does not specify an intent of the general assembly to apply the provision retroactively, the court will not attribute an intent to the general assembly to enact a statutory amendment controlling amortization of nonconforming uses that took place before the amendment was enacted. Z.J. Gifts D-2, L.L.C. v. City of Aurora, 93 P.3d 633 (Colo. App. 2004).

Giving the word “affect” its plain and ordinary meaning, § 18-4-515 does not change, alter, or lessen the requirements of articles 1 through 7 of this title in condemnation actions. San Miguel County Bd. of County Comm'rs v. Roberts, 159 P.3d 800 (Colo. App. 2006).

Giving the word “supersede” its plain and ordinary meaning, § 18-4-515 does not void, replace, supplant, or make unnecessary any provisions or requirements of articles 1 through 7 of this title in condemnation actions. San Miguel County Bd. of County Comm'rs v. Roberts, 159 P.3d 800 (Colo. App. 2006).

Section 18-4-515 may not be used in place of applicable condemnation procedures. There is no basis to conclude, however, that it does not apply or may not be used in support of or in conjunction with a contemplated condemnation proceeding. San Miguel County Bd. of County Comm'rs v. Roberts, 159 P.3d 800 (Colo. App. 2006).

The condemnation by a home rule municipality of property outside its territorial boundaries for open space and park purposes falls within the scope of the eminent domain power granted to such municipalities in this article. The eminent domain power granted to home rule municipalities in this article is not limited to the purposes specified in this section nor is the eminent domain power circumscribed when exercised extraterritorially. Rather, this article grants home rule municipalities the power to condemn property, within or outside of territorial limits, for any lawful, public, local, and municipal purpose. The extraterritorial condemnation of property need not be pursuant to a purpose that is purely local and municipal. As long as the condemnation is based on a lawful, public, local, and municipal purpose, it does not fall outside of the scope of this article merely because it potentially implicates competing state interests. Based upon statutory provisions authorizing statutory localities to condemn land for open space, parks, and recreation, as well as the traditional exercise of this power by the state's statutory and home rule municipalities, the extraterritorial condemnation of property for open space and parks is a lawful, public, local, and municipal purpose within the scope of this article. The condemnation of the landowner's property outside the territorial boundaries of the municipality was, therefore, lawful. Town of Telluride v. San Miguel Valley Corp.,185 P.3d 161 (Colo. 2008).

Subsection (4)(b) abrogates constitutional powers granted to home rule municipalities by this article. Accordingly, the statutory provision is unconstitutional with respect to home rule municipalities. Court's inquiry need not extend beyond the question of whether the statute purports to deny home rule municipalities powers specifically granted by the constitution. No analysis of competing state and local interests is necessary where a statute purports to take away home rule powers granted by the constitution. The legislature cannot prohibit the exercise of constitutional home rule powers regardless of the state interests that may be implicated by the exercise of those powers. Town of Telluride v. San Miguel Valley Corp.,185 P.3d 161 (Colo. 2008).

Subsection (4)(b) prohibits home rule municipalities from condemning property for parks and open space, thus denying them their constitutional power to condemn for any lawful, public, local, and municipal purpose. Subsection (4)(b) curtails the condemnation power in this article by limiting it to the enumerated purposes in this section and also by removing certain enumerated purposes from the list. Accordingly, subsection (4)(b) is an unconstitutional abrogation of the powers granted to home rule municipalities under this article. The general assembly has no power to enact a law that denies a right specifically granted by the constitution. Town of Telluride v. San Miguel Valley Corp.,185 P.3d 161 (Colo. 2008).

A municipality's use of great outdoors Colorado (GOCO) funds did not bar its exercise of eminent domain power to acquire easement rights over landowners' property. The municipality was not precluded from condemning the landowners' property because it used GOCO funds to pay for the costs related to planning or implementing a taking or construction on other portions of the land that were not at issue in the condemnation proceeding and evidence of funding was not relevant to the municipality's authority to condemn the landowners' land. Town of Silverthorne v. Lutz, 2016 COA 17 , 370 P.3d 368.

Applied in City of Englewood v. Weist, 184 Colo. 325 , 520 P.2d 120 (1974); City of Boulder v. Kahn's, Inc., 190 Colo. 90 , 543 P.2d 711 (1975).

Proceedings conducted strictly according to procedures in statute. Eminent domain proceedings are special statutory proceedings and are to be conducted strictly according to the procedures set out in the eminent domain statute. Bd. of Comm'rs v. Poundstone, 74 Colo. 191 , 220 P. 234 (1923); Ossman v. Mtn. States Tel. & Tel. Co., 184 Colo. 360 , 520 P.2d 738 (1974); Denver Urban Renewal Auth. v. Marshall Mfg. Co., 35 Colo. App. 227, 532 P.2d 746 (1975).

A federal district court with diversity jurisdiction can consider an inverse condemnation claim arising under the Colorado constitution and statutes providing a special judicial procedure for condemnation claims. SK Fin. SA v. La Plata County, Bd. of Comm'rs, 126 F.3d 1272 (10th Cir. 1997).

Statutory authority required. Even though the purpose for which the property is sought to be condemned is a “public use” within the meaning of Colo. Const., art. II, § 15, in the absence of express or necessarily implied statutory condemnation authority, private property may not be condemned. Bd. of County Comm'rs v. Intermountain Rural Elec. Ass'n, 655 P.2d 831 (Colo. 1982).

Colorado rules of civil procedure applicable to this article. The Colorado rules of civil procedure apply to actions brought under the provisions of this article. Stalford v. Bd. of County Comm'rs, 128 Colo. 441 , 263 P.2d 436 (1953).

Constitutional objections to eminent domain proceedings should be raised in those proceedings and should be determined by the court in limine; not by way of a collateral injunction proceeding. Auraria Businessmen Against Confiscation, Inc. v. Denver Urban Renewal Auth., 183 Colo. 441 , 517 P.2d 845 (1974).

Matters which cannot be asserted in collateral suit. Matters which cannot be raised in an original condemnation proceeding cannot be asserted in a collateral suit. Ambrosio v. Baker Metro. Water & San. Dist., 139 Colo. 437 , 340 P.2d 872 (1959).

Names and addresses of appraisers to remain unknown to landowner. The owner of property sought to be condemned is not entitled to know the names and addresses of persons who made appraisals at the request of the condemning agency. Epstein v. City & County of Denver, 133 Colo. 104 , 293 P.2d 308 (1956).

Disclosure of appraisals could prejudice owners not parties to suit. Disclosure of appraisal values obtained by private owners not parties to the suit whose property has not yet been condemned could work to the prejudice of substantial rights of those private owners, since should parties who obtained independent appraisal reports reject the government's settlement offer and opt for trial, disclosure could be prejudicial to their rights. United States v. 25.02 Acres of Land, More or Less, 495 F.2d 1398 (10th Cir. 1974).

A condemning authority may exercise the power of eminent domain provided that the taking is necessary and the purpose for the condemnation is judicially determined to be a public use. Colorado law does not require a condemning authority to obtain development permits or approvals as a condition precedent to going forward with a condemnation proceeding; nor does it require the condemning authority to prove that immediate possession will not lead to irreparable damage to natural resources if permits and environmental impact statement (EIS) approval are denied and the project is not completed. Silver Dollar Metro. Dist. v. Goltra, 66 P.3d 170 (Colo. App. 2002).

In reviewing the condemning authority's finding that a proposed taking is for public use, the court's role is to determine whether the essential purpose of the condemnation is to obtain a public benefit, and the court must consider the physical conditions of the country, the needs of the community, and the character of the benefit that the projected improvement may confer upon the locality as well as the necessities for such improvement in the development of the resources of the state. Silver Dollar Metro. Dist. v. Goltra, 66 P.3d 170 (Colo. App. 2002).

The owners of the property to be condemned have the burden of proving that the taking is not for a public purpose. Silver Dollar Metro. Dist. v. Goltra, 66 P.3d 170 (Colo. App. 2002).

Where a taking would be to determine if it is possible that the condemned property could be used for a public use in the future, the taking is not for a public purpose. Silver Dollar Metro. Dist. v. Goltra, 66 P.3d 170 (Colo. App. 2002).

Trial court properly dismissed petition by county to condemn a portion of owner's property for use as a public road because county presented no valid public purpose for its condemnation of owner's property. Here, public purpose is to benefit private parties; a few, select members of the public will gain access to a private cemetery. Such a private benefit does not constitute a valid public purpose. Bd. of County Comm'rs v. Kobobel, 176 P.3d 860 (Colo. App. 2007).

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.

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.

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 subsection (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.

Evidence on project-funds sourcing is inadmissible in a condemnation proceeding. In an immediate possession hearing, a district court hears challenges to a public entity's condemnation based on an alleged lack of authority. During condemnation proceedings, district courts may not consider the source of the condemning authority's funds. Town of Silverthorne v. Lutz, 2016 COA 17 , 370 P.3d 368.

Trial court's findings that corporation's 10-inch pipeline would serve a public purpose is supported by evidence in the record. Trial court's finding was based on testimony of corporation's counsel that pipeline was necessary to provide an adequate supply of oil products to meet the increased demand of the customers in the greater Denver metropolitan area. Evidence in the record indicates that the pipeline would permit continuous service to the corporation's existing Colorado customers as well as its out-of-state customers. Sinclair Transp. Co. v. Sandberg, 228 P.3d 198 (Colo. App. 2009), rev'd on other grounds sub nom. Larson v. Sinclair Transp. Co., 2012 CO 36, 284 P.3d 42 .

Issue of necessity. The threshold issue of necessity, when properly raised in the pleadings, should be resolved before there is any trial as to the value of the land to be taken. Colo. State Bd. of Land Comm'rs v. District Court, 163 Colo. 338 , 430 P.2d 617 (1967).

Matter of necessity cannot be raised by merely denying allegation that the taking is necessary. Colo. State Bd. of Land Comm'rs v. District Court, 163 Colo. 338 , 430 P.2d 617 (1967).

As must plead facts evidencing fraud or bad faith. The matter of necessity cannot be raised by any conclusory pleading of fraud and bad faith, but only by pleading facts which, if true, would amount to fraud or bad faith. Colo. State Bd. of Land Comm'rs v. District Court, 163 Colo. 338 , 430 P.2d 617 (1967).

Proper matters for consideration in determining necessity of taking vary according to the circumstances of each particular case. Mortensen v. Mortensen, 135 Colo. 167 , 309 P.2d 197 (1957).

Matter of necessity of taking in condemnation is to be determined by court. Larson v. Chase Pipe Line Co., 183 Colo. 76 , 514 P.2d 1316 (1973).

Necessity involves taking property for intended purpose. The question of necessity involves the necessity of having the property taken for the purpose intended. Mortensen v. Mortensen, 135 Colo. 167 , 309 P.2d 197 (1957); Silver Dollar Metro. Dist. v. Goltra, 66 P.3d 170 (Colo. App. 2002).

Feasibility or financial success of enterprise precluded from inquiry of necessity. Whether or not an enterprise is feasible or practicable, and whether or not it will be a financial success, cannot be inquired into even by commissioners charged with the duty of determining the question of necessity; such questions are not for the determination of the court. Mortensen v. Mortensen, 135 Colo. 167 , 309 P.2d 197 (1957); Silver Dollar Metro. Dist. v. Goltra, 66 P.3d 170 (Colo. App. 2002).

Public agency's determination of necessity, absent fraud, is final. In the absence of fraud or bad faith, the determination by a public agency as to the need, necessity, and location of highways, or other public improvements, is final and conclusive and will not be disturbed by the courts. Colo. State Bd. of Land Comm'rs v. District Court, 163 Colo. 338 , 430 P.2d 617 (1967); Silver Dollar Metro. Dist. v. Goltra, 66 P.3d 170 (Colo. App. 2002).

The determination by the state of the necessity for a particular taking in the absence of a showing of bad faith is final and conclusive. Mack v. Bd. of County Comm'rs, 152 Colo. 300 , 381 P.2d 987 (1963); Arizona-Colorado Land & Cattle Co. v. District Court, 182 Colo. 44 , 511 P.2d 23 (1973).

Causing of greater than necessary loss evidence of bad faith. Where the taking of a particular easement by a private corporation would entail a great loss to the landowner which might readily be avoided, the court in limine may consider this factor in determining whether the corporation is acting in bad faith. Arizona-Colorado Land & Cattle Co. v. District Court, 182 Colo. 44 , 511 P.2d 23 (1973).

Easement serves public purpose by providing access to property in the state and therefore may be the subject of a condemnation. Bear Creek Dev. Corp. v. Dyer, 790 P.2d 897 (Colo. App. 1990).

No trial on compensation if necessity not shown. If the petitioner cannot establish necessity, there will then be no need for a trial on the issue of compensation. Colo. State Bd. of Land Comm'rs v. District Court, 163 Colo. 338 , 430 P.2d 617 (1967).

Duties of trial court, in absence of jury, include appointing the commissioners, administering the oath of office to them, fixing the time and place of their first meeting, instructing them in writing as to their duties, and, at the conclusion of the testimony, instructing them in writing as to the applicable and proper law to be followed by them in arriving at their ascertainment. Bd. of County Comm'rs v. Vail Assocs., 171 Colo. 381 , 468 P.2d 842 (1970).

Court shall upon request make rulings upon propriety of proofs and objections of the parties. Bd. of County Comm'rs v. Vail Assocs., 171 Colo. 381 , 468 P.2d 842 (1970).

Judge not to preside as in jury trial. The judge of the trial court shall not preside over the commission proceedings in the same manner as he is required to do in a jury trial. Bd. of County Comm'rs v. Vail Assocs., 171 Colo. 381 , 468 P.2d 842 (1970).

Unsupported report of commissioners not binding on court. A report of commissioners in eminent domain proceedings, unsupported by any findings and based on undisputed evidence, does not bind the court. Mortensen v. Mortensen, 135 Colo. 167 , 309 P.2d 197 (1957).

Award of expert witness fees. In eminent domain actions, the awarding of expert witness fees is a matter within the discretion of the trial court. City of Lakewood v. DeRoos, 631 P.2d 1140 (Colo. App. 1981).

Because the purpose of the taking was essentially to benefit the public, the taking satisfied the public use requirement of the state constitution and statutes, even if, at the time of the taking, there was an incidental public benefit. The state constitution requires that condemnation benefit the public but it doesn't prohibit a private party from incidentally benefitting from any particular condemnation. When a condemnation's benefits are essentially public, there is no constitutional violation. Carousel Farms Metro. v. Woodcrest, 2019 CO 51, 442 P.3d 402.

The plain language of subsection (1)(b)(I) only limits the transfer of condemned land to a private entity. Where there is no transfer and no private entity involved, this section is inapplicable. Carousel Farms Metro. v. Woodcrest, 2019 CO 51, 442 P.3d 402.

While the existence of a public purpose pursuant to subsection (2)(b) is always subject to judicial review, the necessity of an acquisition of a specific parcel of property may only be reviewed by a court upon a showing of bad faith. Thus, if bad faith is at issue, a court may look behind an entity's stated condemnation purpose and finding of necessity. City of Lafayette v. Town of Erie Urb. Ren., 2018 COA 87 , 434 P.3d 746.

Although condemnation to create an open space community buffer could be a proper public purpose, the petition to condemn land was motivated by bad faith. Specifically, the primary interest of the municipality in the subject property was to interfere with proposed commercial development undertaken by the town, which is not a lawful public purpose for the condemnation. City of Lafayette v. Town of Erie Urb. Ren., 2018 COA 87 , 434 P.3d 746.

Matters considered inappropriate for defense. In a condemnation proceeding, the expediency of the project or that condemnation might proceed in a way other than that proposed are not appropriate matters of defense. Ambrosio v. Baker Metro. Water & San. Dist., 139 Colo. 437 , 340 P.2d 872 (1959).

Injunction is not proper remedy to be accorded a defendant in a proceeding in eminent domain. Town of Glendale v. City & County of Denver, 137 Colo. 188 , 322 P.2d 1053 (1958); Ambrosio v. Baker Metro. Water & San. Dist., 139 Colo. 437 , 340 P.2d 872 (1959); Dunham v. City of Golden, 31 Colo. App. 433, 504 P.2d 360 (1972).

Doctrine of laches does not provide relief where defendant failed to show that improvements would be impacted by the easement or that the defendant suffered prejudice not covered by the compensation award. Minto v. Lambert, 870 P.2d 572 (Colo. App. 1993).

When condemnor may abandon action. Where a property owner has not changed his position in good faith reliance on a condemnation suit, the condemnor may abandon the action at any time prior to the time the rights of the parties are reciprocally vested. Piz v. Hous. Auth., 132 Colo. 457 , 289 P.2d 905 (1955).

Right to abandon condemnation proceeding may be relinquished or lost. The right to abandon condemnation proceedings may be relinquished by agreement or lost by estoppel. Piz v. Hous. Auth., 132 Colo. 457 , 289 P.2d 905 (1955).

Basis for compensation is fairness. The constitutional requirement of just compensation derives as much content from the basic equitable principles of fairness as it does from technical concepts of property law. Upper Eagle Valley San. Dist. v. Carnie, 634 P.2d 1008 (Colo. App. 1981).

Right to compensation belongs to owner. The right to compensation for the value of land taken and damages to the residue occasioned by the taking is a personal one which belongs to the owner. Enke v. City of Greeley, 31 Colo. App. 337, 504 P.2d 1112 (1972); Upper Eagle Valley San. Dist. v. Carnie, 634 P.2d 1008 (Colo. App. 1981); Direct Mail Servs., Inc. v. Colo., 557 F. Supp. 851 (D. Colo. 1983 ), aff'd, 729 F.2d 672 (10th Cir. 1984).

Lessee not entitled to separate award for value of leasehold. Lessee is not entitled in the initial condemnation proceedings to establish the value of its leasehold interest independently of the value of the entire property and is not entitled to a separate award by the state for the value of its leasehold. City of Sterling v. Plains Inv. Co., 32 Colo. App. 115, 511 P.2d 512 (1973), rev'd on other grounds, 185 Colo. 238 , 523 P.2d 465 (1974); Direct Mail Servs., Inc. v. Colo., 557 F. Supp. 851 (D. Colo. 1983 ), aff'd, 729 F.2d 672 (10th Cir. 1984).

Property owners are not entitled to obtain the highest and best use of their property or to gain maximum profits from its use. Van Sickle v. Boyes, 797 P.2d 1267 (Colo. 1990); Nat'l Adver. v. Bd. of Adjustment of City & County of Denver, 800 P.2d 1349 (Colo. App. 1990).

Landowner is entitled to be compensated for costs reasonably incurred by him in condemnation proceedings since to require a landowner to pay such costs would reduce the just compensation guaranteed by section 15 of art. II, Colo. Const.Dept. of Hwys. v. Kelley, 151 Colo. 517 , 379 P.2d 386 (1963).

“Just compensation” includes payment of costs. In condemnation proceedings, the landowner is entitled to compensation for all reasonable costs incurred. Expenses necessarily incurred by reason of the litigation are correctly viewed as such costs. City of Colo. Springs v. Berl, 658 P.2d 280 (Colo. App. 1982).

Property damage must affect some right or interest which the landowner enjoys and which is not shared or enjoyed by the public generally, in order to be compensable; the damage must be different in kind, not merely in degree, from that suffered by the public in general. Troiano v. Colo. Dept. of Hwys., 170 Colo. 484 , 463 P.2d 448 (1969); City of Lakewood v. DeRoos, 631 P.2d 1140 (Colo. App. 1981).

Owner must establish right to substantial compensation. Burden rests upon owner to establish by competent evidence his right to substantial compensation. Troiano v. Colo. Dept. of Hwys., 170 Colo. 484 , 463 P.2d 448 (1969); United States v. 25.02 Acres of Land, More or Less, 495 F.2d 1398 (10th Cir. 1974).

No vested right in public highway maintenance. No person has a vested right in the maintenance of the public highway in any particular place. Troiano v. Colo. Dept. of Hwys., 170 Colo. 484 , 463 P.2d 448 (1969).

Award includes damages that are incident of improvement. An award in an eminent domain proceeding includes all damages, present and prospective, that are the natural, necessary, or reasonable incident of the improvement, but an award does not include such damages as may arise from negligent or unskillful construction or use thereof. Ruth v. Dept. of Hwys., 153 Colo. 226 , 385 P.2d 410 (1963); Linnebur v. Pub. Serv. Co. of Colo., 716 P.2d 1120 (Colo. 1986).

Right to compensation unchanged by nature of business. The nature of the business, which is situated upon land subject to condemnation, does not change the right of an individual to compensation. Troiano v. Colo. Dept. of Hwys., 170 Colo. 484 , 463 P.2d 448 (1969).

Factors considered in determining compensable taking of access rights. Factors to consider in determining whether or not there has been a compensable taking of access rights to a highway include whether the property is a single economic unit or consists of separate units with particular access needs, the use of the property, the location of improvements, the contiguity to the highway, the land's topography, and all pertinent characteristics of the property which may be relevant to its access needs. Shaklee v. Bd. of County Comm'rs, 176 Colo. 559 , 491 P.2d 1366 (1971).

Loss of view from property not compensable. Since a property owner has no right to have the traveling public pass his property, he has no right to have the traveling public afforded a clear view of his property, and loss of view from the property caused by the construction of a viaduct is not compensable. Troiano v. Colo. Dept. of Hwys., 170 Colo. 484 , 463 P.2d 448 (1969).

Goodwill and profits are not regarded as elements of just compensation under either the due process or just compensation clauses of the federal and state constitutions. Auraria Businessmen Against Confiscation, Inc. v. Denver Urban Renewal Auth., 183 Colo. 441 , 517 P.2d 845 (1974).

Owner compensated only for actual taking in pipeline condemnation. The rule in condemnation cases concerning pipelines is that the owner of the land will be compensated only to the actual extent of the estate taken. W. Slope Gas Co. v. Lake Eldora Corp., 32 Colo. App. 293, 512 P.2d 641 (1973).

Limitation on compensation for loss of access. An abutting landowner is entitled to compensation for limitation or loss of access only if the limitation or loss substantially interferes with his means of ingress and egress to and from his property. State Dept. of Hwys. v. Davis, 626 P.2d 661 (Colo. 1981).

So long as the landowner retains a reasonable means of access to and from his property partial loss of access is not compensable. Troiano v. Colo. Dept. of Hwys., 170 Colo. 484 , 463 P.2d 448 (1969); Shaklee v. Bd. of County Comm'rs, 176 Colo. 559 , 491 P.2d 1366 (1971).

There is no taking of private property which would be subject to compensation when a landowner's access rights to a state highway are limited to two access points of his own choosing. Shaklee v. Bd. of County Comm'rs, 176 Colo. 559 , 491 P.2d 1366 (1971).

Inconvenience is not substantial impairment of access. Inconvenience caused by the required use of a more circuitous route to gain access to property does not constitute substantial impairment of access. State Dept. of Hwys. v. Davis, 626 P.2d 661 (Colo. 1981).

Compensation is not permitted for damage caused by circuity of route where the properties involved were used for business purposes such as motels, restaurants, and gas stations, and where the inability of the traveling public to get to the property conveniently had, in effect, diminished the value of the business property. Troiano v. Colo. Dept. of Hwys., 170 Colo. 484 , 463 P.2d 448 (1969).

The diversion of traffic away from the property is a factor hardly separable from circuity of route since the diversion of traffic will inevitably have as its result circuity of route. Troiano v. Colo. Dept. of Hwys., 170 Colo. 484 , 463 P.2d 448 (1969).

Proof required for landowner's compensation for loss of access. In order for plaintiff to be compensated for loss of access it is incumbent upon her to establish to the satisfaction of the trial court that she no longer retains a reasonable means of access to and from her property and the general system of public streets. Troiano v. Colo. Dept. of Hwys., 170 Colo. 484 , 463 P.2d 448 (1969).

Trial judge determines reasonableness of landowner's access. The trial judge must determine in the first instance whether a landowner's right of access has been subjected to unreasonable control or limitation. Shaklee v. Bd. of County Comm'rs, 176 Colo. 559 , 491 P.2d 1366 (1971).

Fair market value of property taken is sole question in determining the value of property in an eminent domain action. Dillinger v. N. Sterling Irrigation Dist., 135 Colo. 95 , 308 P.2d 606 (1957).

In the case of a temporary taking, landowner is entitled to just compensation for fair rental value of property at its highest and best use, taking into consideration any existing land use restrictions, during the period of temporary taking. In determining fair rental value, the trial court and the jury must assume a free bargaining transaction between a hypothetical lessor and lessee. Changes in land use restrictions may only be considered if they probably could have occurred during the temporary taking period. Fowler Irrevocable Trust 1992-1 v. City of Boulder, 17 P.3d 797 (Colo. 2001).

Market value means the price property would bring if sold in the open market under ordinary and usual circumstances for cash, assuming that the owner is willing to sell and the purchaser willing to buy, but neither under any obligation to do so. Epstein v. City & County of Denver, 133 Colo. 104 , 293 P.2d 308, 55 A.L.R.2d 783 (1956).

Reasonable market value means the fair, actual cash market value of the property. It is the price the property could have been sold for on the open market, for cash under the usual and ordinary circumstances where the owner was willing to sell and the purchaser was willing to buy, but neither was under an obligation to do so. Goldstein v. Denver Urban Renewal Auth., 192 Colo. 422 , 560 P.2d 80 (1977); City of Aurora v. Webb, 41 Colo. App. 11, 585 P.2d 288 (1978).

Assessment of present market value. The present market value must be assessed in light of the most advantageous use to which the property may reasonably be applied. Goldstein v. Denver Urban Renewal Auth., 192 Colo. 422 , 560 P.2d 80 (1977).

Major factors for consideration in determining market value of real estate in condemnation proceedings are: (1) A view of the premises and their surroundings; (2) a description of the physical characteristics of the property and its situation in relation to points of importance in the neighborhood; (3) the price at which the land was bought, if sufficiently recent to throw light on present value; (4) the price at which similar neighboring land has sold at about the time of the taking; (5) the opinion of competent experts; (6) a consideration of the uses for which the land is adapted and for which it is available; (7) the cost of the improvements if they are such as to increase the value of the land; and (8) the net income from the land, if the property is devoted to one of the uses to which it could be most advantageously and profitably applied. United States v. 25.02 Acres of Land, More or Less, 495 F.2d 1398 (10th Cir. 1974).

Board is entitled to consider any competent evidence, apart from certain factors arising from the very fact of condemnation, which would be considered by a prospective seller or buyer as tending to affect the present market value of the land. Goldstein v. Denver Urban Renewal Auth., 192 Colo. 422 , 560 P.2d 80 (1977); City of Aurora v. Webb, 41 Colo. App. 11, 585 P.2d 288 (1978).

If sale not too remote. If not too remote in point of time, and if neither economic nor physical conditions have changed, voluntary prior sales of the subject property may be shown in evidence in eminent domain proceedings. Epstein v. City & County of Denver, 133 Colo. 104 , 293 P.2d 308, 55 A.L.R.2d 783 (1956).

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. W. Slope Gas Co. v. Lake Eldora Corp., 32 Colo. App. 293, 512 P.2d 641 (1973).

Root consideration is whether comparable sale is sufficiently similar, in one or more aspects, to be probative of the fair market value of the property under consideration by the commission. Goldstein v. Denver Urban Renewal Auth., 192 Colo. 422 , 560 P.2d 80 (1977).

Best evidence of market value found in comparable sales. While the best evidence of market value is found in sales of comparable property. The determination is not limited to that consideration and other substantial facts and circumstances may have probative value. United States v. 25.02 Acres of Land, More or Less, 495 F.2d 1398 (10th Cir. 1974).

Determination of market value not limited to consideration of comparable sales; other substantial facts and circumstances may have probative value. United States v. 25.02 Acres of Land, More or Less, 495 F.2d 1398 (10th Cir. 1974).

In eminent domain proceeding, in calculating value of subject property as a waste transfer station, trial court correctly admitted evidence based upon the land residual method instead of the comparable sales method. Whether a comparable sale is sufficiently similar to be of probative value in determining the value of land taken is for the trial court or commission to determine in its discretion. Here, considering both parties' expert testimony, there was sufficient evidence in the record to support landowner's position that there were not sufficient comparable sales and that, in the absence of such sales, the only way to calculate the added value of the planned unit development and waste transfer permit approvals was to use the land residual method. The record also supports a finding that criteria outlined by the American institute of real estate appraisers for use of the land residual method were met. In upholding the use of the land residual method, court of appeals rejected city's arguments that use of this method impermissibly considers a speculative or prospective value, that income and profits from a waste transfer station could not be considered in valuing the land, and that use of this method violated the undivided basis rule. City of Englewood v. Denver Waste Transfer, L.L.C., 55 P.3d 191 (Colo. App. 2002).

Unexecuted written contract for sale of adjacent land inadmissible. Just as a mere offer to buy or sell property is not a measure of the market value of a similar property, so, too, a written contract for the sale of adjacent land has been held inadmissible, if the sale did not take place. United States v. 25.02 Acres of Land, More or Less, 495 F.2d 1398 (10th Cir. 1974).

Where compensation for less than value of fee simple held proper. Where pipeline company did not take fee title to property containing its easement, and the surface land remained unaffected, useful, and of substantial value, the compensation was properly less than the value for fee simple title to the entire area within which the pipe was located. W. Slope Gas Co. v. Lake Eldora Corp., 32 Colo. App. 293, 512 P.2d 641 (1973).

When purchaser confined to damages for subsequent taking. Where land is already burdened by an easement when a purchaser acquires title, he takes that land in that condition when he acquires title and is confined to damages for subsequent takings. Upper Eagle Valley San. Dist. v. Carnie, 634 P.2d 1008 (Colo. App. 1981).

Demolition costs. In determining the present market value of unimproved property, as reflected by a comparable sale, the addition of demolition costs to the purchase price of a comparable property which had improvements but which was purchased for use as undeveloped land is permissible. Goldstein v. Denver Urban Renewal Auth., 192 Colo. 422 , 560 P.2d 80 (1977).

Fixtures included in determination of landowner's compensation. Fixtures are a part of the realty for which compensation must be paid to the owner by the condemning authority. Denver Urban Renewal Auth. v. Steiner Am. Corp., 31 Colo. App. 125, 500 P.2d 983 (1972).

Reservations in deeds admissible to show value of condemned property. In an eminent domain proceeding, the trial court committed prejudicial error when it refused to allow a city to introduce into evidence certain reservations in deeds through which landowners acquired their record title in order to show diminution in value of the property taken, since actually, the deeds in question should have been admitted into evidence on the question of the value of the landowners' interest. City of Englewood v. Reffel, 173 Colo. 203 , 477 P.2d 361 (1970); E-470 Pub. Hwy. Auth. v. Jagow, 30 P.3d 798 (Colo. App. 2001), aff'd on other grounds, 49 P.3d 1151 (Colo. 2002).

When nonexpert witness competent to testify as to value. A nonexpert witness called to testify as to value is said to have sufficient qualification if a resident, landowner, or farmer in the neighborhood. Baker Metro. Water & San. Dist. v. Baca, 138 Colo. 239 , 331 P.2d 511 (1958).

Defendant failed to show the easement causes significant damage because of depreciation of the value of property due to the impact on the property's “pristine” character. Minto v. Lambert, 870 P.2d 572 (Colo. App. 1993).

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).

Types of property subject to condemnation unlimited. There are no limitations on the type of property that may be acquired by the state through condemnation proceedings for highway purposes. Mack v. Bd. of County Comm'rs, 152 Colo. 300 , 381 P.2d 987 (1963).

Using or enlarging ditch without owner's consent considered taking. Using or enlarging a ditch, without the owner's consent, was a taking or damaging of private property as would be appropriating the right-of-way therefor, in the first instance, but such taking or damaging could not be tolerated except upon payment, in a constitutional manner, of just compensation. Tripp v. Overocker, 7 Colo. 72 , 1 P. 695 (1883).

Cemetery lands subject to condemnation. Cemetery lands, by virtue of their sacred nature, are not placed beyond the reach of the power of eminent domain; however, in the case of public cemeteries, such power to condemn must be given expressly or by necessary and reasonable implication. Beth Medrosh Hagodol v. City of Aurora, 126 Colo. 267 , 248 P.2d 732 (1952).

Church property can be taken by eminent domain for paramount public use. Pillar of Fire v. Denver Urban Renewal Auth., 181 Colo. 411 , 509 P.2d 1250 (1973).

Condemnation of flowage easements permitted. Denver is vested with ample authority to condemn flowage easements and channel improvement rights for transportation of diverted water to storage facilities. Toll v. City & County of Denver, 139 Colo. 462 , 340 P.2d 862 (1959).

Condemnor acquires surface and support of surface. When land is acquired by condemnation for a highway, the condemnor acquires not only what is understandably known as just the surface, but, by virtue of such condemnation, it acquires whatever is necessary for the support of that surface. Russell Coal Co. v. Bd. of County Comm'rs, 129 Colo. 330 , 270 P.2d 772 (1954).

Property already subject to existing public use can be condemned. Mack v. Bd. of County Comm'rs, 152 Colo. 300 , 381 P.2d 987 (1963).

Where overwhelming necessity shown. Where land is already devoted to a public use, it would be wholly unreasonable to permit it to be taken for another public use which would nullify and defeat the one to which it is already devoted, except in cases where the overwhelming necessities of the public were such that in order to serve their needs or supply their necessities, the taking of such property became necessary. Beth Medrosh Hagodol v. City of Aurora, 126 Colo. 267 , 248 P.2d 732 (1952).

Public waters, etc., not condemnable for sewage purposes. Public waters or beds or channels of public streams cannot be condemned for sewage purposes. City & County of Denver v. District Court, 140 Colo. 1 , 342 P.2d 648 (1959).

Counties lack authority to condemn for office space. The general assembly has not impliedly delegated the power of eminent domain to counties for the purpose of acquiring office space for authorized county purposes. Bd. of County Comm'rs v. Intermountain Rural Elec. Ass'n, 655 P.2d 831 (Colo. 1982) (decided prior to enactment of § 30-11-104 (2) ).

Property owners may file writ of certiorari during stay of execution. Within a period of a stay of execution granted by a trial court, the owners of property being condemned, not having the right of review of an interlocutory order upon writ of error, may file an original action, by way of certiorari, in the supreme court, alleging that otherwise they were without remedy whatsoever to protect their property from seizure under an order of a district court, which they contended was without lawful authority. Lucas v. District Court, 140 Colo. 510 , 345 P.2d 1064 (1959).