Total Petroleum, Inc. v. Farrar

787 P.2d 164, 1990 WL 14319
CourtSupreme Court of Colorado
DecidedMarch 12, 1990
Docket88SC401
StatusPublished
Cited by5 cases

This text of 787 P.2d 164 (Total Petroleum, Inc. v. Farrar) is published on Counsel Stack Legal Research, covering Supreme Court of Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Total Petroleum, Inc. v. Farrar, 787 P.2d 164, 1990 WL 14319 (Colo. 1990).

Opinions

Justice ROVIRA

delivered the Opinion of the Court.

We granted certiorari to consider whether the court of appeals erred in utilizing the “undivided basis” method to resolve a dispute between landlords and a tenant regarding the apportionment of condemnation proceeds, pursuant to a written contract between the parties. Farrar v. Total Petroleum, Inc., 765 P.2d 613 (Colo.App.1988). The trial court’s award of $77,000 to the tenant was reversed by the court of appeals, which held that the tenant was entitled to no compensation because the condemnation proceeds were attributable to the land value of the property taken and not to the improvements on the tenant’s portion of the condemned property. We reverse and remand with directions.

I

The respondents, Carter and Marjorie Farrar (landlords), were fee simple owners of a tract of land containing approximately 88,000 square feet which was condemned by the Boulder Urban Renewal Authority (BURA). The petitioner, Total Petroleum, Inc. (Total), operated a gas station, pursuant to a written lease, on approximately 18,750 square feet of the condemned property. This case involves a dispute between Total and the landlords over the allocation of the condemnation proceeds paid by BURA.1

BURA assigned three parcel numbers to the land owned by the landlords. The parcel leased by Total was designated as Parcel 5. Peter Bowes, the appraiser retained by BURA, valued these parcels as follows:

Parcel 4 $242,000.00
Parcel' 5 (land) $188,000.00
Parcel 5 (improvements) $104,000.00
Parcel 6 $324,000.00
Total $858,000.00

BURA deposited $858,000 into the registry of the court and an order was entered granting it immediate possession of all three parcels. After the deposit, but before the apportionment hearing, which was to be held pursuant to section 38-1-101, 16A C.R.S. (1982), BURA and the landlords negotiated a price of $1,015,949 for the [166]*166condemned parcels.2 Total was unaware of these negotiations, but did consent to a rule and order which, in pertinent part, provided that:

The amount of total compensation for the property taken, including improvements and appurtenances thereto ... and any and all other claims to which the respondents might be entitled as a result of these proceedings, is $1,015,949.00.

BURA deposited the additional amount of $157,949 and was dismissed from the proceedings. Because the landlords and Total were unable to agree upon an allocation of the condemnation proceeds, an apportionment hearing was held to resolve this issue. The lease involved here contains a legal description of the 18,750 square feet leased by Total, and states that this land comprises the “premises.” The lease also provided that:

CONDEMNATION AND EMINENT DOMAIN: If, while this Lease is in force and effect, all of the Premises are ever taken or condemned by right of eminent domain, or if the Landlord makes a voluntary conveyance in lieu of such taking, then this Lease shall, automatically, terminate as of the date on which the taking or condemning agency, body or entity, acquires the right to possession of the Premises. Under those circumstances, the award or price which the taking or condemning agency, body or entity will pay for the Premises shall be divided between the parties as follows:
(a) The Landlord shall receive and retain that part of the award or price which is attributable to the land (only) that is taken.
(b) The Tenant shall receive and retain that part of the award or price which is attributable to the improvements, better-ments and all other things situated on the land that is taken.

The trial court reasoned that the resolution of the case depended upon the interpretation of this provision, which it held to be clear and unambiguous. It also found that the value of Total’s improvements to Parcel 5 did not enhance the value of Tracts 4, 5, and 6, taken as a whole. However, the trial court concluded that the parties intended the phrase “attributable to the land” to mean attributable to the “premises,” which consisted only of Parcel 5, and held that the improvements enhanced the value of Parcel 5 by $77,000.

The court of appeals agreed with the trial court’s conclusion that the lease provision in question was unambiguous. However, it concluded that the parties intended that the value of the improvements be measured in reference to the price paid for the “whole” parcel taken. Accordingly, the court of appeals held that the proceeds were entirely attributable to the value of the land, because Total’s improvements to the portion of the condemned property it leased did not enhance the value of the entire 88,000 square foot parcel taken.

II

Colorado follows the undivided basis rule which establishes the method for determining, for condemnation purposes, the fair market value of condemned property. See § 38-1-105(3), 16A C.R.S. (1982). Under this approach, the fair market value of the property is determined without regard to the separate interests to which it may be subject. As such, all the parties with an interest in the property are motivated to maximize the total value of the condemnation award, which will later be apportioned among the parties in interest. This approach furthers important policy considerations because it provides fair compensation for the property condemned, while also expediting the condemnation process by simplifying and narrowing the issues in which the condemnor has an interest. Montgomery Ward & Co. v. City of Sterling, 185 Colo. 238, 243, 523 P.2d 465, 468 (1974).

Once the fair market value of the property has been determined, however, the “con-demnor steps out of the picture and the interested parties must compete for as [167]*167large a share of the available award as they can get. Given the limited nature of the fund, it is obvious that the more any one party gets, the less there is to be distributed among the other claimants.” 7A Nichols on Eminent Domain § 11.01 at 11-5 (rev. 3d ed.1989). See also Montgomery Ward & Co. v. City of Sterling, 185 Colo. 238, 523 P.2d 465 (1974). The allocation of these proceeds, among those parties claiming an interest in the property, may then be determined in subsequent proceedings.3 The parties claiming such interests may contractually determine how these funds are to be distributed. Resolution of this case is dependent upon construing the lease in question in a manner consistent with well established rules of construction.

In Lorenzen v. Mustard’s Last Stand, Inc., 196 Colo. 265, 586 P.2d 12 (1978), a case involving the interpretation of a lease, we noted that:

[A] contract should not be interpreted in a vacuum, apart from circumstances which render it intelligible. This court has ruled that, in construing a contract, one must consider “...

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Total Petroleum, Inc. v. Farrar
787 P.2d 164 (Supreme Court of Colorado, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
787 P.2d 164, 1990 WL 14319, Counsel Stack Legal Research, https://law.counselstack.com/opinion/total-petroleum-inc-v-farrar-colo-1990.