Access at Last: the Use of Private Condemnation

• Jurisdiction: Colorado,United States
• Citation: Vol. 29 No. 2 Pg. 77
• Pages: 77
• Publication year: 2000

29 Colo.Law. 77 Colorado Lawyer 2000.

2000, February, Pg. 77. Access at Last: The Use of Private Condemnation

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77

Vol. 29, No. 2, Pg. 77

The Colorado Lawyer
February 2000
Vol. 29, No. 2 [Page 77]

Specialty Law Columns
Real Estate Law Newsletter
Access at Last: The Use of Private Condemnation
by Robyn W. Kube

As real estate development explodes throughout Colorado, many seek refuge in more remote areas. A client's dream property may be a few miles up a dirt road from the nearest town or it may be reachable by only a narrow footpath. There may be some form of physical access, but legal or physical access sufficient for the issuance of a building permit may pose another problem. Research into the history of the property may reveal few, if any, facts to support a common-law method for establishing legal access, or the cost of improving existing access may greatly exceed the value of the property. In such cases, relief may be found in the Bill of Rights to the Colorado Constitution

Article II, § 14 of the Colorado Constitution provides that

Private property shall not be taken for private use unless by consent of the owner, except for private ways of necessity and except for reservoirs, drains, flumes or ditches on or across the lands of others, for agricultural, mining, milling, domestic or sanitary purposes. (Emphasis added.)

This provision reflected nineteenth century policies encouraging the opening of the frontier and the settlement of the west, as well as the view that all land should be put to practical use, and access to a public road is indispensable for that use. It is perhaps more surprising in light of the recent proliferation of growth control measures that Colorado appellate courts continue to find that Colorado's public policy favors the accessibility of private property.

The constitutional provision, coupled with the statutes and procedures found at CRS § 38-1-101 et seq., allows for the private taking of private ways of necessity upon the payment of just compensation. In other words, the Colorado Constitution authorizes the use of private condemnation to obtain a "private way of necessity."

This article discusses the use of private condemnation to obtain access to otherwise landlocked property. It includes a discussion of the statutory framework applicable to private condemnation, as well as the case law pertinent to its use in access cases.

Statutory Framework

While the Colorado Constitution establishes the right of private condemnation, the statutes found at CRS § 38-1-101 et seq. outline the procedures to be followed. First, and foremost, the party seeking to condemn must be within the category of those authorized to condemn.1 (This has proven to be one of the most difficult issues to resolve in the context of private condemnation, as the cases discussed below illustrate.) Next, the location and value of the road easement to be condemned must be determined. The condemning party must then make a reasonable and good faith effort to acquire the easement through negotiation.2 As part of that effort, the condemning party must notify anyone with an interest of record in the property that it intends to acquire the property.3 If the estimated value of the easement to be acquired is $5,000 or more, the notice also must advise that the condemning party will pay the reasonable costs associated with an appraisal.4 The purpose of this procedure is to encourage negotiations and settlement. However, the landowner need not provide the condemning party with a copy of the appraisal, at least not prior to any litigation, even though such information may be useful in such negotiations.5

If the parties are unable to agree on the terms of an acquisition, the condemning party may initiate condemnation proceedings.6 These proceedings are brought by filing a petition containing allegations as to: the authority of the condemning party to condemn; the purpose for which the property is to be taken; a description of the property interest to be acquired; and the names of all persons with an interest in the property.7 In addition, and to insure a full and final determination, the petition should name as respondents, not only the owner of the property, but also any and all parties...