Appendix B EMINENT DOMAIN JURY INSTRUCTIONS
| Jurisdiction | Colorado |
36:1 Instruction to Commissioners As To Duties
36:2 Burden of Proof As To Issues
36:3 Ascertainment of Value of Property Taken
36:4 Ascertainment of Damages and Specific Benefits to Residue
36:5 Ascertainment of Damages to Residue — Limitations
36:6 Ascertainment of Market Value, Damages, or Specific Benefits — Most Advantageous Uses
36:7 Consideration of Comparable Sales
36:8 Report of Commissioners or Verdict Form
36:1 INSTRUCTION TO COMMISSIONERS AS TO DUTIES
This is a proceeding brought by the petitioner, (name), to acquire certain property for (insert brief description, e.g., "park," "highway") purposes, which is a public use.
The respondent(s), (name[s]), (is) (are) the owner(s) of the property (or of some interest in the property).
The property that the petitioner seeks to acquire is designated as (insert identification, e.g., "Parcel A") and is (shown on the attached exhibit) (described as follows: [insert description]).
You are to determine the reasonable market value of the property actually taken (and, if evidence is received by you with regard to any compensable damages to the residue, you may thereafter receive evidence as to any specific benefits to such residue and, if you find either or both damages or specific benefits to exist, then you are also to determine them). (It is not your duty, however, to attempt to determine who may own what interests in the property, or the nature, extent or value of any such interests.)
After you have received all the evidence, the court will instruct you further in writing as to the law you should follow in making your determination(s).
You may request this court or the clerk of this court to issue subpoenas to compel witnesses to attend your proceedings and to testify. For the purpose of taking testimony you may hold and adjourn such meetings as may be required, and any one of you may administer oaths to the witnesses who appear before you. You shall hear the testimony and receive any other evidence in accordance with law, and you may request me or any other judge of this court to rule on the propriety of any evidence or on any of the parties' objections to any of the evidence.
You shall view the property and thereafter, having received all the evidence and having been further instructed by this court, you shall without fear, favor or partiality ascertain the reasonable market value of the property actually taken (and the amount of compensable damages, if any, and amount and value of any specific benefit, if any, to the residue of any land not taken).
You shall make, sign and file with the clerk of this court a certificate of your determination(s). You must all agree on your determination(s). The certificate should also accurately describe the property in question. A form for your certificate will be furnished to you later.
1. Use whichever parenthesized words and phrases are appropriate. All references to damages or benefits to the residue should be omitted, for example, if there is a total taking of the property. § 38-1-115(2), C.R.S.
2. If the case is tried before a board of commissioners appointed by the court, this instruction is required to be given by the court in writing after the commissioners have taken their oaths. § 38-1-105(1) and (2), C.R.S. This same section also requires the court to instruct the commissioners in writing at the conclusion of the testimony as to the law they should follow in reaching their conclusions.
3. If the case is tried to a jury pursuant to section 38-1-106, C.R.S., a suitable instruction explaining the case should be given prior to the taking of evidence, and another instruction setting forth a statement of the case should be given along with other appropriate instructions at the close of the trial. The initial instruction to the jury may be based on the first five paragraphs of this instruction.
4. If less than a fee interest is being condemned (for example, an easement), this instruction should be appropriately modified. Similarly, modification will be required if personal property is being acquired, or if more than one parcel of land is involved in the proceeding.
5. This instruction and the other instructions in this chapter are for use in eminent domain proceedings. The provisions apply to both real and personal property. See § 38-1-117, C.R.S. The instructions may also be used in inverse condemnation actions, which are tried as if they were eminent domain cases. City of Northglenn v. Grynberg, 846 P.2d 175 (Colo. 1993); G & A Land, LLC v. City of Brighton, 233 P.3d 701 (Colo. App. 2010).
6. The other instructions in this chapter apply to both jury and commission trials and should be given in both types of proceedings. § 38-1-115.
1. This instruction is supported by section 38-1-105(2), which sets out the basic duties and powers of the commissioners, and by section 38-1-115, which sets forth the determinations the commissioners are to make.
2. This instruction and the other instructions in this chapter are also supported by sections 38-1-101 to -122, C.R.S.; Colorado Constitution, article II, section 15; and the procedures and law outlined therein.
3. The role of a board of commissioners or a jury is limited to determining the amount of compensation owed for the condemnation, with all other questions and issues for the court. § 38-1-101(2)(a), C.R.S.; City of Aurora v. Powell, 153 Colo. 4, 383 P.2d 798 (1963). Commissioners serve a hybrid role as both judge and juror. State Dep't of Highways v. Copper Mountain, Inc., 624 P.2d 936 (Colo. App. 1981). As such, commissioners are entitled to make evidentiary rulings at trial. See § 38-1-105(2); Reg'l Transp. Dist. v. 750 West 48th Ave., LLC, 2015 CO 57, ¶ 15, 357 P.3d 179; Goldstein v. Denver Urban Renewal Auth., 192 Colo. 422, 560 P.2d 80 (1977); City of Westminster v. Jefferson Ctr. Assocs., 958 P.2d 495 (Colo. App. 1997); State Dep't of Highways v. Mahaffey, 697 P.2d 773 (Colo. App. 1984); State Dep't of Highways v. Pigg, 656 P.2d 46 (Colo. App. 1982). But judicial evidentiary rulings control over commission rulings, whether made before or after the commission has considered evidence. Reg'l Transp. Dist., ¶¶ 16-17, 23. Thus, the court's prior in limine orders can be modified only by the court itself, and the commission cannot disregard them. Id. at ¶¶ 19-20. And the court has authority to instruct the commission that evidence admitted by the commission is irrelevant and must be disregarded. Id. at ¶ 22.
4. The failure of one of the three commissioners to view the property being taken does not warrant overturning the commission's ascertainment of value. Bd. of Cty. Comm'rs v. McClure Venture, 41 Colo. App. 524, 594 P.2d 585 (1978).
5. Section 38-1-105(1) requires commissioners to be "disinterested and impartial" and directs the court to conduct a voir dire examination to determine those facts.
6. Disputes as to ownership are to be determined in separate proceedings. § 38-1-105(3); Vivian v. Bd. of Trs. of Colo. Sch. of Mines, 152 Colo. 556, 383 P.2d 801 (1963).
36:2 BURDEN OF PROOF AS TO ISSUES
The burden of proof is on the respondent, (name), to prove by a preponderance of the evidence what the reasonable market value was of the property actually taken on (insert valuation date) (and, also, to prove the damages, if any, to the residue). (The burden of proof is on the petitioner, (name), to prove by a preponderance of the evidence the amount and value of the specific benefits, if any, to the residue.)
By "burden of proof" is meant the obligation resting on the party who has the burden of proving a proposition to prove the same by a preponderance of the evidence presented in the case, regardless of which party may have produced such evidence.
A fact or proposition has been proved by a "preponderance of the evidence" if, considering all the evidence, you find it to be more probably true than not.
1. Omit the parenthesized references in the first paragraph to damages or specific benefits if there is a total taking of the property. § 38-1-114(1) and (2)(b), C.R.S.
2. In cases involving partial acquisitions, damages and specific benefits are treated differently depending on the nature of the condemnation and this instruction will need to be modified based upon the evidence received.
3. For actions under section 38-1-114(1) that do not involve highway acquisitions or transportation projects undertaken by the regional transportation district created by title 32, article 9, of the...
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