The Colorado Supreme Court Redefines Compensable Damages in Condemnation Actions

Publication year1987
CitationVol. 16 No. 10 Pg. 1829
16 Colo.Law. 1829
Colorado Lawyer

1987, October, Pg. 1829. The Colorado Supreme Court Redefines Compensable Damages In Condemnation Actions


Vol. 16, No. 10, Pg. 1829

The Colorado Supreme Court Redefines Compensable Damages In Condemnation Actions

by Jeffrey B. Groy

The Colorado Constitution requires that when local governments and quasi-municipal corporations exercise their eminent domain power by taking or damaging private property for public or private use, they must justly compensate the landowner.(fn1) This article briefly reviews Colorado law on compensable damages in eminent domain cases prior to 1986. It then summarizes the recent Colorado Supreme Court decision of La Plata Electric Association, Inc. v. Cummins,(fn2) which discarded the general damage-special damage distinction in partial taking situations and required the condemning authority to compensate the landowner for all damages that naturally, necessarily and reasonably result from the partial taking. The article also discusses several issues concerning compensable damages that result from the Cummins decision.

Pre-1986 Condemnation Damages

Traditionally, the rule in Colorado was that a condemning authority must compensate a landowner for a taking of property through eminent domain only if the resultant damage to the property affects some right enjoyed by the landowner that was not shared by the general public. Under this rule, to receive compensation the landowner's injury must have been different in kind, not merely in degree, from that suffered by the public generally. This general damage, special damage distinction applied no matter how much of the landowner's property was physically taken by the public entity's activity.

The Colorado Supreme Court first established the general damage-special damage distinction in the 1883 case of Denver v. Bayer.(fn3) In Bayer, the plaintiff sought to recover for the depreciation of his property value caused by the construction of a railroad on the street in front of his property. The court found that a taking had occurred because the railroad was an additional burden not shared by the general public. Consequently, the landowner was entitled to compensation for the taking.

Most of the Colorado cases following Bayer involved inverse condemnation actions in which landowners claimed an injury resulting from a public entity's use of a nearby parcel of land, not from an actual physical taking of the landowners' property.(fn4) In Troiano v. Colorado Department of Highways,(fn5) for example, a motel owner sought to receive compensation for the interference with and impairment of access to her property, unreasonable use of an existing road and loss of view resulting from the construction of a highway viaduct over a street abutting her property. In analyzing the impairment of access claim, the court stated that the right of access is subject to reasonable control and that the access impairment must be substantial, not merely inconvenient, in order to give rise to a claim for damages. Finding that the construction of the viaduct did not substantially interfere with those travelers wishing to enter the motel property, and that the unsightliness of the viaduct was an injury suffered by the public in general, the court held that no taking had occurred.

While the majority of Colorado cases involve condemnation actions where no physical taking of the landowners' property has occurred, some cases have dealt with the compensation issue in partial taking situations.(fn6) In these cases, Colorado courts have analyzed the amount of compensation owed to landowners for damages to the unacquired portion of property. These damages, known as severance damages, are measured by the present difference between the market value of the residue before and after the taking.(fn7)

In one severance damages case, State Department of Highways v. Davis,(fn8) the state highway department filed a petition



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