The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY March 22, 2018
2018COA42
No. 2017CA0212 CAW Equities v. City of Greenwood Village — Eminent Domain — Private Condemnation — Prior Public Use Doctrine
In this private condemnation action, a division of the court of
appeals concludes, as a matter of first impression, that the prior
public use doctrine applies to Colorado Constitution article XVI,
section 7, to preclude a private condemnation that would entirely
eliminate an existing public use on the property. The division
further concludes that Colorado’s eminent domain statutes properly
clarify and regulate the constitutional right of private
condemnation. Finally, the division awards attorney fees to the City
of Greenwood Village under section 38-1-122(1), C.R.S. 2017 COLORADO COURT OF APPEALS 2018COA42
Court of Appeals No. 17CA0212 Arapahoe County District Court No. 15CV31946 Honorable Charles M. Pratt, Judge
CAW Equities, L.L.C., a Colorado limited liability company,
Plaintiff-Appellant,
v.
City of Greenwood Village, Colorado, a home rule municipality,
Defendant-Appellee.
JUDGMENT AFFIRMED
Division VII Opinion by JUDGE FREYRE Bernard and Berger, JJ., concur
Announced March 22, 2018
Waas Campbell Rivera Johnson & Velasquez LLP, Darrell G. Waas, Patricia C. Campbell, Denver, Colorado, for Plaintiff-Appellant
Otten, Johnson, Robinson, Neff & Ragonetti, P.C., Thomas J. Ragonetti, Bill E. Kyriagis, Brian J. Connolly, Denver, Colorado; Tonya Haas Davidson, City Attorney, Greenwood Village, Colorado, for Defendant-Appellee ¶1 In this private condemnation action under Colorado
Constitution article XVI, section 7 (Section 7), we address a novel
question — Does the “prior public use” doctrine of eminent domain
law apply to private condemnations under Section 7? We answer
that question “yes” and affirm the district court’s judgment related
to that doctrine. We also conclude that while Section 7 is
self-executing, it is not limitless. Consistent with numerous
Colorado cases, we conclude that this constitutional right, as
others, is subject to reasonable legislative regulation.
¶2 Petitioner, CAW Equities, L.L.C. (CAW), appeals from the
district court’s judgment denying its private condemnation of a
public trail belonging to respondent, the City of Greenwood Village.
CAW contends that the district court erred when it: (1) placed
statutory limitations on the constitutional right to private
condemnation for water use; (2) determined that CAW needed to
make a showing of necessity for the condemned property without
first addressing the bad faith issue; (3) required CAW to make a
showing of “absolute” necessity; (4) admitted testimony regarding
the feasibility of CAW’s water plan; and (5) awarded the City
attorney fees. Because we conclude that Section 7 may be limited
1 by statute, and that the prior public use doctrine provides an
alternate basis to affirm the district court’s judgment, we do not
address the necessity issue, the bad faith issue, or the admissibility
of the feasibility evidence. Moreover, because we affirm the district
court’s judgment, we also affirm its award of attorney fees.
I. Background
¶3 CAW is a Colorado limited liability company managed by
Robert Lembke and owned and controlled by the Lembke family.
CAW sought private condemnation of a public equestrian and
pedestrian trail (public trail) that bisects two of its adjacent
properties. The public trail runs between the Highline Canal to the
north and Long Road to the south. The City owns the public trail
from a plat dedication and separate dedication agreement for
equestrian and pedestrian use.
2 This diagram, based on admitted exhibits, is not to scale and is provided for illustrative purposes only.
¶4 Several years before this suit was filed, CAW proposed creating
a new trail along the southern edge of the Eastern Lembke Tract in
exchange for vacating the public trail through its property. The City
expressed interest initially, so Lembke made some improvements to
the proposed route. He offered easements to the City on CAW’s
property in exchange for the public trail. The City ultimately
3 rejected this offer, so Lembke offered to purchase the public trail for
$85,300. Without responding to this offer, the City began
construction to improve the public trail. Two days after the City
placed surveying stakes on the public trail, CAW filed this petition
in condemnation under Section 7.
¶5 CAW petitioned to condemn the entire public trail to construct
a ditch from the Highline Canal to the southern end of its
properties. The City opposed CAW’s petition in a C.R.C.P. 12(b)(1)
motion to dismiss. It argued that CAW brought the condemnation
action in bad faith, and that the rights it asserted did not comply
with the legislative authority that guided and implemented the
constitutional right of private condemnation. The district court
granted the City’s motion in part, concluding that the eminent
domain statutes clarified and implemented the rights and
responsibilities of a party seeking to condemn property under
Section 7. It deferred the bad faith argument to the hearing on the
merits.
¶6 At the hearing, CAW presented expert testimony that its
proposed water plan was the most efficient and cost-effective means
of transporting water from north to south and diverting it to the
4 eastern and western tracts for irrigation. The City presented
contrary expert testimony of numerous alternatives that did not
require condemning the entire public trail. The record reflects that
the City offered to grant CAW an easement to transport water
across the public trail consistent with these alternatives and that
CAW rejected that offer.
¶7 The district court issued a detailed written order denying
CAW’s petition. It found that (1) the eminent domain statutes were
a proper application of legislative authority to implement and
regulate Section 7; (2) CAW was required to show necessity for the
proposed condemnation; (3) the proposed water plan failed to
comply with the relevant statutes, and that CAW had failed to
establish a need to take property already in public use; and (4)
CAW’s failure to establish the necessity of constructing its proposed
ditch rendered any bad faith determination unnecessary. The court
then awarded the City attorney fees and costs.
II. Private Condemnation Under Section 7
¶8 We first address whether the district court erred in concluding
that CAW lacked the authority to condemn the public trail. CAW
contends that the court imposed unlawful restrictions on its right to
5 condemn property under Section 7. It argues that Section 7 is
self-executing and that a private condemnor need not comply with
the eminent domain statutes or show necessity before exercising his
or her condemnation right. We disagree, and conclude, consistent
with well-settled law pertaining to other constitutional provisions,
that the legislature, through the eminent domain statutes, may
regulate Section 7 so long as it does not unnecessarily limit or
curtail the constitutional right.
A. Standard of Review and Applicable Law
¶9 We review a district court’s judgment in a condemnation
action as a mixed question of fact and law. See Glenelk Ass’n v.
Lewis, 260 P.3d 1117, 1120 (Colo. 2011). “[W]e defer to the trial
court’s findings of fact unless they are so clearly erroneous as to
find no support in the record.” Id. We review the court’s legal
conclusions, including questions of constitutional and statutory
interpretation, de novo. Gessler v. Colo. Common Cause, 2014 CO
44, ¶ 7. When interpreting a statute, “a court’s essential task is to
determine and give effect to the intent of the legislature.” Premier
Farm Credit, PCA v. W-Cattle, LLC, 155 P.3d 504, 513 (Colo. App.
2006) (quoting People v. Goodale, 78 P.3d 1103, 1107 (Colo. 2003)).
6 To accomplish this task, we must first examine the plain language
of the statute itself. Jefferson Cty. Bd. of Equalization v. Gerganoff,
241 P.3d 932, 935 (Colo. 2010). If the language is clear and
unambiguous, we must interpret it as written. Id.
¶ 10 This case involves a conflict between two rights. On the one
hand, the right to own and use property is fundamental and
important. See Akin v. Four Corners Encampment, 179 P.3d 139,
144 (Colo. App. 2007). On the other hand, water is a “scarce and
valuable resource” in Colorado. Mount Emmons Mining Co. v. Town
of Crested Butte, 40 P.3d 1255, 1257 (Colo. 2002). Consequently,
water is carefully managed, including its distribution in ditches, to
promote beneficial uses. See, e.g., Colo. Const. art. XVI, § 6
(“Diverting unappropriated water – priority preferred uses”); Colo.
Const. art. XVI, § 7 (“Right-of-way for ditches, flumes”); §§ 37-86-
101 to -113, C.R.S. 2017 (“Rights-of-way and Ditches”); Archuleta v.
Gomez, 200 P.3d 333, 341-43 (Colo. 2009).
Ditches are important to Colorado. They permit a landscape, economy, and history in which fertile valleys prosper. Without them, properties adjacent to or distant from watercourses wither. Colorado is not a riparian state in which only those lands adjacent to the streams and rivers have rights
7 to waters. Rather, as early as the tenure of the territorial legislature, our lawmakers recognized that our arid climate required the creation of a right to appropriate and convey water across the land of another so that lands not immediately proximate to water could be used and developed.
Roaring Fork Club, L.P. v. St. Jude’s Co., 36 P.3d 1229, 1231-32
(Colo. 2001).
¶ 11 The importance of water distribution in Colorado is expressed
in the state constitution, which permits private property to be
taken, without the consent of the owner, for “reservoirs, drains,
flumes, or ditches on or across the lands of others.” Colo. Const.
art. II, § 14. It also permits public land to be condemned for
rights-of-way, stating as follows:
All persons and corporations shall have the right-of-way across public, private and corporate lands for the construction of ditches, canals and flumes for the purpose of conveying water for domestic purposes, for the irrigation of agricultural lands, and for mining and manufacturing purposes, and for drainage, upon payment of just compensation.
Colo. Const. art. XVI, § 7.
¶ 12 Section 7 is self-executing, which means that it “shall take
immediate effect, and ancillary legislation is not necessary to the
8 enjoyment of the right thus given, or the enforcement of the duty
thus imposed. In short, if a constitutional provision is complete in
itself, it executes itself.” Town of Lyons v. City of Longmont, 54
Colo. 112, 117, 129 P. 198, 200 (1913). Thus, at the time of its
adoption in 1876, no further legislative action was required to
implement it.
¶ 13 Nevertheless, “[a] provision can still be self-executing even if
‘further legislation may clarify or facilitate the execution of the
provision.’” Developmental Pathways v. Ritter, 178 P.3d 524, 531
(Colo. 2008) (quoting Davidson v. Sandstrom, 83 P.3d 648, 658
(Colo. 2004)). Indeed, “although the constitution recognizes the
right of eminent domain, it is proper for the legislature to impose
just limitations which do not prevent the exercise of the right.”
Gibson v. Cann, 28 Colo. 499, 501, 66 P. 879, 880 (1901); see also
Davidson, 83 P.3d at 658 n.9 (“Only legislation which ‘directly or
indirectly limits, curtails or destroys the rights given by those
provisions is invalid as violative of the rights reserved by the people
to themselves.’” (quoting Colo. Project-Common Cause v. Anderson,
178 Colo. 1, 5, 495 P.2d 220, 222 (1972))).
9 B. The Eminent Domain Statutes Apply to Section 7
¶ 14 Relying on Town of Lyons, CAW argues that Section 7 is
self-executing and cannot be limited or curtailed by the eminent
domain statutes. To be sure, our supreme court concluded that the
City of Longmont was entitled under Section 7 to condemn a
right-of-way through the streets of Lyons for a water pipeline and
stated that “[t]he intent of a constitutional provision is the law.”
Town of Lyons, 54 Colo. at 116, 129 P. at 200. However, it reached
this conclusion “independent of statutory provisions” and without
considering whether the eminent domain statutes could limit
Section 7. Id.
¶ 15 Moreover, it noted that Lyons “retains authority to prescribe
all reasonable and necessary rules and regulations which the city of
Longmont must observe in maintaining its pipe line . . . and all
rights which [Longmont] may exercise over its line within the
corporate limits of Lyons are therefore subject to such control.” Id.
at 117, 129 P. at 200. In our view, this language refutes CAW’s
argument that Section 7 provides a limitless right and supports the
principle that “the manner of exercising the [constitutional] right
[may be] regulated by statute.” Downing v. More, 12 Colo. 316, 318,
10 20 P. 766, 767-68 (1889); see also Tripe v. Overacker, 7 Colo. 72,
73, 1 P. 695, 696 (1883) (holding that the statute limiting the
number of ditches that could cross another’s land was a proper
limitation of Section 7).
¶ 16 More recently, our supreme court explained that “[t]he extent
of the right-of-way is defined by section 37-86-103, C.R.S. 1973,
and the right of condemnation to acquire the right-of-way is granted
by section 37-86-104, C.R.S. 1973.” Application of Bubb, 200 Colo.
21, 27, 610 P.2d 1343, 1347 (1980). In doing so, the court
recognized that the sources of the right of condemnation are
Colorado Constitution article II, section 14, and Section 7. Id. at 27
n.11, 610 P. at 1347 n.11.
¶ 17 We conclude that while Section 7 may be self-executing, it is
not without limitation, as suggested by CAW, but may be regulated
and implemented by the eminent domain statutes. Well-settled law
recognizes the legislature’s ability to “regulate the exercise” of the
right of private condemnation, and to hold otherwise would allow
private condemnors an unfettered ability to condemn property
without any guiding principles, and would leave condemnees and
courts with little understanding of the contours of the right.
11 ¶ 18 Accordingly, we make explicit what has been implied in our
case law — that the eminent domain statutes properly regulate the
exercise of the right of private condemnation under Section 7. See
Passarelli v. Schoettler, 742 P.2d 867, 870 (Colo. 1987) (“[T]o
withstand constitutional challenge statutory provisions must, at a
minimum, have a reasonable basis in fact and bear a reasonable
relationship to a legitimate governmental interest.”).
¶ 19 CAW alternatively argues that even if the eminent domain
statutes apply, its proposed plan does not violate them. For the
reasons stated below in Part III, discussing the prior public use
doctrine, we conclude that CAW did not have the authority to
condemn the public trail. Therefore, we need not decide whether
the proposed plan complies with the eminent domain statutes.
III. Prior Public Use Doctrine
¶ 20 Whether a person claiming a right to condemn property for a
ditch must show that the ditch is “necessary” under the
constitution is a difficult and unresolved question. CAW claims
that Section 7 does not require it to show a ditch is necessary, and
that it provides an absolute right to condemn. CAW reasons that
because it plans to construct a ditch, as expressly authorized under
12 Section 7, and because Section 7 contains no language requiring
proof of necessity, it need not make such a showing. The City, on
the other hand, asserts that CAW must prove that the ditch is
necessary to access its water rights in order to condemn a ditch, an
argument with which the district court agreed.
¶ 21 However, we need not decide this unsettled question1 because,
as the court found, the land CAW seeks to condemn is already in
public use as a public trail. Therefore, we address, as a matter of
first impression, whether the prior public use doctrine applies to
private condemnation proceedings under Section 7 and conclude
that it does. We further conclude that Section 7 does not constitute
“express authority” to condemn property in public use, and that the
court properly applied this doctrine in finding that CAW failed to
(1) allege express authority for its right to condemn all of the public
trail; (2) prove that the right to condemn property already in public
use was a necessary implication of its private condemnation right;
1Colorado law is well established that to condemn a private right of way for ingress or egress, the condemnor must show necessity. Glenelk Ass’n v. Lewis, 260 P.3d 1117, 1122 (Colo. 2011). However, whether this same requirement and the definition of “necessary” used in the private right-of-way context apply to irrigation ditch easements is unresolved.
13 and (3) prove that some public exigency existed to justify the
necessity of condemning the public trail.
¶ 22 We review a district court’s judgment in a condemnation
action as a mixed question of fact and law. Glenelk Ass’n, 260 P.3d
at 1120. “[W]e defer to the trial court’s findings of fact unless they
are so clearly erroneous as to find no support in the record.” Id.
We review the court’s legal conclusions de novo. Id.
¶ 23 Over one hundred years ago, our supreme court considered
whether a private company could condemn a piece of land for a
reservoir that was being held for railroad use. See generally Denver
Power & Irrigation Co. v. Denver & R.G.R. Co., 30 Colo. 204, 69 P.
568 (1902). In discussing article 2, section 14 of the constitution
and the prior public use doctrine, the court stated as follows:
It is unnecessary to attempt an analysis of this constitutional provision, — whether or not it is self-executing, or the legislature has provided laws by which its provisions may be enforced, — further than to say that neither the constitutional provision referred to nor any statute to which our attention has been directed changes or modifies the general rule that property already devoted to a public use cannot be taken for another in such manner or to such an extent that the use to which it is
14 devoted will be wholly defeated or superseded, unless the power to so take be granted expressly or by necessary implication, except it may be in cases where a public exigency requires that it be taken.
Id. at 210, 69 P. at 570 (emphasis added) (citations omitted). While
the court did not analyze Section 7, it clearly rejected the
“self-executing” argument in a similar constitutional provision,
under similar circumstances, and found that the prior public use
rule could only be defeated expressly, by necessary implication, or
by public exigency. Id. This prior public use rule has been
reiterated in case law and continues to operate in Colorado in cases
under Colorado Constitution article II, section 14. See, e.g., Beth
Medrosh Hagodol v. City of Aurora, 126 Colo. 267, 273-74, 248 P.2d
732, 735 (1952) (noting the prior public use doctrine applies where
the city sought to condemn cemetery property for a reservoir); Town
of Parker v. Colo. Div. of Parks & Outdoor Recreation, 860 P.2d 584,
586 (Colo. App. 1993) (“The right to take property already dedicated
to a public use for another public use exists in some cases, but
such right must be by specific grant of authority.”); see also Mark S.
Arena, Comment, The Accommodation of “Occupation” and “Social
Utility” in Prior Public Use Jurisprudence, 137 U. Pa. L. Rev. 233,
15 234 & n.5 (1988) (collecting cases adopting the prior public use
doctrine under various constitutional and statutory provisions).
B. Application
¶ 24 CAW does not provide, nor can we discern, any reason to limit
the prior public use rule to takings of private property to construct
ditches for conveying water under article II, section 14 of the
constitution. Instead, we believe the prior public use rule applies
with equal force to the more narrow circumstance of taking property
for a right-of-way to construct a water ditch under Section 7.
¶ 25 CAW contends that Section 7 “expressly allows a taking of
public property as long as it is for one of the enumerated purposes”
and that the prior public use rule does not require otherwise. It
argues that because Section 7 allows a “right-of-way across public”
lands (emphasis added), it expressly authorizes the condemnation
of lands already in public use. However, this argument
misconstrues the scope of Section 7, and it misconstrues the prior
public use rule.
¶ 26 First, Section 7 is a narrow provision that allows “persons and
corporations” a “right-of-way across public, private, and corporate
lands . . . .” It is not an express provision to condemn entire tracts
16 of land currently in public use. Cf. Minn. Power & Light Co. v. State,
225 N.W. 164, 165-66 (1929) (“There is a distinction between power
merely to cross a railway or other line and authority to construct a
railway or line longitudinally upon or through property already
devoted to a public use.”). CAW’s argument fails to acknowledge
how narrowly we must construe the condemnation power, Town of
Parker, 860 P.2d at 586 (“[N]arrow construction is the rule in
determining the scope of the condemnation power delegated.”), and
how broadly we must construe statutes regulating that power,
§ 37-86-101, C.R.S. 2017. Thus, although the language of Section
7 includes a private right to condemn public, private, or
corporate-owned property for water rights-of-way, it must be viewed
through the broader lens of the eminent domain statutes that
regulate it.
¶ 27 To that end, we believe that CAW misconstrues the meaning of
“express” authorization. In Denver Power & Irrigation Co., the court
noted that although the petitioner had a general right to condemn
properties held for railroad use, “no statute is pointed out which
would authorize [petitioner] to take such property to an extent
which would totally deprive the railroad companies of its use.” 30
17 Colo. at 211, 69 P. at 570 (emphasis added). We glean from this
case that the prior public use doctrine requires express legislative
or constitutional authority for a condemnor to entirely extinguish
an existing public use, as distinct from the general grant of the
power to condemn.
¶ 28 Although Section 7 grants the general authority to condemn
public property for a right-of-way to access water, it does not
expressly grant the authority to extinguish an existing public use
on such property. See, e.g., Freeman Gulch Mining Co. v. Kennecott
Copper Corp., 119 F.2d 16, 20 (10th Cir. 1941) (applying Utah
statutes and holding that property devoted to one public use may,
under general statutory authority, be taken for another public use,
where the taking will not materially impair or interfere with, or is
not inconsistent with, the use already existing); Village of Richmond
Heights v. Bd. of Cty. Comm’rs, 166 N.E.2d 143, 150 (Ohio Ct. App.
1960) (“As a general rule, property already devoted to a public use
cannot be taken for another public use which will totally destroy or
materially impair or interfere with the former use . . . .”); In re Vt.
Gas Sys., Inc., 174 A.3d 1253, 1259 (Vt. 2017) (“[W]e conclude that
the prior public use doctrine does not prohibit condemnation of
18 land devoted to a public use when the new use does not materially
impair the prior use.”); cf. Wyo. Stat. Ann. §§ 1-25-813, 1-26-505
(West 2017) (condemnations of property in public use allowed on a
showing that the new use will not unreasonably interfere with or
impair prior public use). CAW does not cite, nor have we found,
any authority granting the unfettered power to condemn that it
espouses. Cf. Town of Parker, 860 P.2d at 587 (explaining that the
“general grant of eminent domain power” of Colorado Constitution
article XX, section 1 “confers no specific condemnation powers over
state-owned lands” and thus could not justify condemnation); see
also Lake Cty. Parks & Recreation Bd. v. Ind.-Am. Water Co., 812
N.E.2d 1118, 1123 (Ind. Ct. App. 2004) (“[A]bsent the prior public
use doctrine, property could be condemned back and forth
indefinitely.”).
¶ 29 Narrowly construing the right to condemn, as we must, we
reject CAW’s argument that Section 7 expressly authorizes it to
extinguish the public trail and instead conclude that Section 7
merely grants express authority to a right-of-way, so long as the
right-of-way does not extinguish the prior public use. Consistent
with this holding, the district court found that several alternatives
19 to extinguishing the public trail existed and that CAW could obtain
a right-of-way to access its water rights without eliminating the
existing public use. Because ample record evidence supports this
conclusion, we discern no error.
¶ 30 Additionally, to the extent CAW asserts that its right to
condemn land in existing public use arises “by necessary
implication” of Section 7, we reject that assertion for the reasons
explained above and conclude that the right to condemn an entire
tract of public land in public use is not a necessary implication of
the general right to privately condemn a right-of-way for a ditch.
See Mack v. Town of Craig, 68 Colo. 337, 338-39, 191 P. 101, 101
(1920) (“The authority to condemn must be expressly given or
necessarily implied. The exercise of the power being against
common right, it cannot be implied or inferred from vague or
doubtful language . . . . When the right to exercise the power can
only be made out by argument and inference, it does not exist.”
(quoting John Lewis, Law of Eminent Domain § 371 (3d ed. 1909)));
cf. Bd. of Cty. Comm’rs v. Intermountain Rural Elec. Ass’n, 655 P.2d
831, 833-34 (Colo. 1982) (concluding that although the county had
20 a duty to provide county offices, the fact that an individual did not
want to sell offices did not necessarily imply the right to condemn).
¶ 31 Where, as here, a private condemnor can obtain a right-of-way
without extinguishing the existing public use, the condemnation
power does not necessarily imply such a power. Cf. Bd. of Cty.
Comm’rs, 655 P.2d at 833 (explaining that, when a statute is silent
and the power can be exercised “without resort to condemnation,” it
is presumed the legislature intended the property be acquired
without condemnation).
¶ 32 Finally, CAW provided no evidence of a “public exigency” to
justify condemning the public trail. Indeed, it failed to show that a
ditch over the entire tract was necessary, and it conceded that a
ditch on the Eastern Lembke Tract was possible, though not
preferable. See Beth Medrosh Hagodol, 126 Colo. at 274, 248 P.2d
at 736 (finding exigency not established where “it [was] not shown
that it [was] necessary to take the land in question, nor [was] it
alleged or shown that no other land or site [was] available”).
¶ 33 Thus, while CAW’s proposed water plan may reflect the most
cost-effective and efficient option to achieve its own purposes, it
does not reflect the only available option, nor does it consider the
21 existing public use. See Denver Power & Irrigation Co., 30 Colo. at
211, 69 P. at 570 (“It may be true that the site thus selected is
convenient, or it may even be true that it is the only available one
on the stream; but that is a matter which affects the rights of
petitioner, and not the public.”). Indeed, efficiency and costs relate
only to CAW’s rights and not the public. Id.
¶ 34 The district court concluded that “there are other available
means and locations to achieve the goal of conveying or
transporting the water without interfering with the public trail
which would defeat the use for which it was dedicated to the
public.” Because ample record evidence supports this finding, the
court did not err in so concluding. See Glenelk Ass’n, 260 P.3d at
1120 (“[W]e defer to the trial court’s findings of fact unless they are
so clearly erroneous as to find no support in the record.”).
¶ 35 Accordingly, we affirm the court’s judgment that CAW lacked
the legal authority to condemn the public trail.
IV. Remaining Issues
¶ 36 Having concluded that the district court properly denied
CAW’s petition for the condemnation of the public trail, we need not
decide whether a condemnor needs to establish necessity under
22 Section 7, whether a finding of bad faith is a necessary predicate to
determining necessity, or whether the court abused its discretion in
admitting feasibility evidence. See People v. Lopez, 2015 COA 45,
¶ 64 (refusing to address issues raised when a narrower decision is
reached).
V. Attorney Fees and Costs
¶ 37 CAW last contends that the district court erred in awarding
the City its attorney fees and costs under section 38-1-122(1),
C.R.S. 2017. Because we agree that CAW was “not authorized by
law to acquire real property or interests therein sought in a
condemnation proceeding,” id., we affirm the attorney fee judgment.
¶ 38 A court may award attorney fees and costs “when authorized
by statute or court rule.” § 13-16-122(1)(h), C.R.S. 2017; United
Bank of Denver, Nat’l Ass’n v. Colo. State Treasurer, 797 P.2d 851,
852 (Colo. App. 1990). We review an attorney fee award for an
abuse of discretion and will not disturb that award unless it is
patently erroneous or unsupported by the evidence. Hartman v.
Freedman, 197 Colo. 275, 591 P.2d 1318 (1979). Whether a
statutory basis for attorney fees exists is a question of law that we
23 review de novo. US Fax Law Ctr., Inc. v. Henry Schein, Inc., 205
P.3d 512, 515 (Colo. App. 2009); Town of Telluride v. San Miguel
Valley Corp., 197 P.3d 261, 262 (Colo. App. 2008) (reviewing
statutes de novo).
¶ 39 Section 38-1-122(1) authorizes an award of attorney fees and
costs in condemnation cases:
If the court finds that a petitioner is not authorized by law to acquire real property or interests therein sought in a condemnation proceeding, it shall award reasonable attorney fees, in addition to any other costs assessed, to the property owner who participated in the proceedings.
(Emphasis added.) Attorney fees and costs, therefore, are
recoverable for the successful defense of a private condemnation
action. See West v. Hinksmon, 857 P.2d 483, 487 (Colo. App. 1992)
(Attorney fees should be allowed in private condemnation action “if
it is established that an alternate acceptable route is legally
available to the condemnor at the time the action is commenced.”);
Billington v. Yust, 789 P.2d 196, 198 (Colo. App. 1989) (noting the
statute provides “for the imposition of attorney fees as part of
recoverable costs” in private condemnation action).
24 B. Application
¶ 40 CAW does not challenge on appeal the reasonableness of the
attorney fees awarded by the district court, but only the court’s
legal basis for ordering them under section 38-1-122. It contends
that the phrase “not authorized by law” “should not be read so
broadly as to include every condemnation that does not proceed to
a valuation hearing.” CAW reasons that the court’s interpretation
would require condemnors to pay fees and costs in all dismissed
cases, irrespective of whether there was any legal basis for filing the
condemnation petition.
¶ 41 We agree with CAW that “[u]nlike some attorney fee statutes,
[section] 38-1-122(1) does not provide that fees are to be awarded to
the ‘prevailing party,’” Wilkenson v. Gaffney, 981 P.2d 1121, 1123
(Colo. App. 1999), but instead “authorizes the court to award fees to
the respondent property owner if the petitioner is not authorized by
law to acquire the real property interests sought,” id.
¶ 42 Because the court acknowledged that CAW could acquire a
right-of-way across the public trail, albeit not the one it sought,
CAW argues that it was authorized to condemn at least some of the
public trail and should not be required to pay attorney fees.
25 ¶ 43 Recall, however, that CAW sought to condemn all of the public
trail, not an easement across it. In fact, the record shows that CAW
explicitly rejected the City’s offer for such an easement. Therefore,
because the only property interest that CAW “therein sought” to
condemn under section 38-1-122(1) was the entire public trail, not
the easement the court acknowledged it could obtain, we conclude
that CAW’s petition was not authorized by law, under the prior
public use doctrine, and that the district court properly awarded
fees and costs to the City under section 38-1-122(1). Cf. Wilkinson,
981 P.2d at 1122 (awarding attorney fees for petitioners’ request for
utility easement that did not succeed despite succeeding in
obtaining a right-of-way).
¶ 44 Alternatively, CAW argues that the fee award should be
reduced because it had legal support for its private condemnation
action across the public trail. We construe this argument as one
asserting that its petition was not frivolous or vexatious, an
argument with which we agree but find irrelevant. The question
here is not whether CAW brought a frivolous, groundless, or
vexatious suit. See § 13-17-101, C.R.S. 2017. Rather, the question
is whether the law authorized CAW to bring the suit “to acquire real
26 property or interests therein sought.” § 38-1-122(1). CAW does not
dispute that it sought to condemn the entire public trail or that it
rejected the City’s offer of an easement across the public trail.
Because the prior public use doctrine precluded what CAW sought,
CAW’s petition was not “authorized by law.”
¶ 45 We are not persuaded that Hinksmon requires a different
result. In that case, a division of this court reversed a condemnee’s
attorney fee award because it concluded that what the condemnor’s
petition sought — a private right of necessity — was authorized by
law, even though the district court found that a less damaging route
existed. 857 P.2d at 487. The division remanded the case for
further findings to determine the location of the easement. In
Hinksmon, what the petition sought and what was awarded were
the same — a private right of necessity.
¶ 46 In contrast, here, CAW’s petition sought condemnation of the
entire public trail, not an easement across it. Under these
circumstances, CAW’s petition was not authorized by law, and we
conclude the district court properly awarded the City fees and costs
under section 38-1-122(1).
27 VI. Conclusion
¶ 47 The judgment is affirmed.
JUDGE BERNARD and JUDGE BERGER concur.