Chapter 1 - § 1.2 • CONSTITUTIONAL EMINENT DOMAIN POWERS

• Jurisdiction: Colorado

§ 1.2 • CONSTITUTIONAL EMINENT DOMAIN POWERS

Constitutional provisions do not create the power of eminent domain, but they do place limitations on its use.⁴ For example, the right of eminent domain can never be exercised without the corresponding duty to pay compensation; the right of compensation is always "incident to" the exercise of the eminent domain power.⁵

The Fifth Amendment to the United States Constitution provides, "[N]or shall private property be taken for public use, without just compensation."⁶ In contrast, Colorado's constitution provides at Article II, Section 15 that "Private property shall not be taken or damaged, for public or private use, without just compensation."⁷ It has been said that in providing for compensation for both the taking and damaging of property, Colorado's constitution "affords an aggrieved property owner a greater measure of protection than does the Constitution of the United States."⁸

Article II, Section 15 further provides that "whenever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be really public shall be a judicial question, and determined as such without regard to any legislative assertion that the use is public."⁹ The import of these words is addressed more fully in § 2.3 of this book, when discussing what constitutes a proper "public use" for the exercise of the eminent domain power.

§ 1.2.1—State Constitutional Provisions

Article II, Section 15 is viewed as the primary constitutional provision regarding the exercise of eminent domain power under Colorado law. However, Colorado's constitution does contain other eminent domain provisions. Article II, Section 14 provides for the taking of "private property" for "private use" for various identified purposes, including "private ways of necessity . . . reservoirs, drains, flumes or ditches . . . for agricultural, mining, milling, domestic or sanitary purposes."¹⁰ Unlike Section 15, which can only be exercised if a legislative enactment has authorized its use, it is unclear whether Section 14 of Article II is self-executing.¹¹ In the event it is not, the legislature has adopted a statute in the form of C.R.S. § 38-1-102(3) that authorizes private condemnation actions. This statute is substantially identical to Article II, Section 14.¹²

Article XVI, Section 7 allows "all persons and corporations" the "right-of-way across public, private and corporate lands" for many of the same uses as Article II, Section 14 "upon payment of just compensation."¹³ In Town of Lyons v. City of Longmont, the court specifically held that this constitutional provision was self-executing.¹⁴

§ 1.2.2—Home Rule Constitutional Powers

Article XX, Section 1 of the Colorado Constitution (which, through Section 6 of this same article, is made applicable to all home rule municipalities) provides what has generally been described as a broad grant of condemnation powers to home rule cities and towns, both for territorial and extraterritorial purposes. The relevant provisions of Section 1 state:

[T]he power, within or without its territorial limits, to . . . condemn . . . water works, light plants, power plants, transportation systems, heating plants, and any other public utilities or works or ways local in use and extent, in whole or in part, and everything required therefore . . . [and] . . . may enforce such purchase by proceedings at law as in taking land for public use by right of eminent domain. . . .¹⁵

In 1905, in deciding whether the City and County of Denver had the authority to condemn land for a municipal auditorium under the foregoing language, the Colorado Supreme Court held in City & County of Denver v. Hallett that Article XX, Section 1 "was not intended to be an enumeration of...