Chapter 3 - § 3.5 • CONDEMNING PROPERTY ALREADY DEVOTED TO A PUBLIC USE

• Jurisdiction: Colorado

§ 3.5 • CONDEMNING PROPERTY ALREADY DEVOTED TO A PUBLIC USE

On occasion, both public and private entities owning property that is the subject of a condemnation action have argued that the property cannot be condemned because it is already being put to a "public use." Sometimes referred to as the "prior public use" doctrine, the success of this argument depends largely on two factors: (1) whether the entity seeking to condemn has the clear legal authority to take property that is already being used for public purposes; and (2) whether the condemnation of the property will completely eliminate the prior public use, or whether the uses can co-exist or are otherwise compatible with each other. The following discussion presents the Colorado case law on these points.

In Union Pacific Railroad Co. v. Colorado Postal Telegraph Cable Co., a railroad argued as an additional defense to the taking of its property that the telegraph company was without authority to condemn railroad property that was already being held for public use.⁴⁵ In support of this claim, the railroad asserted that a pre-existing telegraph line within the right-of-way being condemned precluded the company from condemning for the installation of another line. In rejecting this claim, the Colorado Supreme Court focused on the degree to which the utility lines would or would not interfere with each other. The court then concluded:

The evidence discloses, however, that the proposed line of petitioner will neither interfere with this line nor with the operation of respondent's railroad. There is ample room for all.
. . . That property held for a public use may be taken under the exercise of the right of eminent domain for the same or a different public use, when such taking does not materially interfere with the uses for which it is already held, has been recognized in a great number of cases in which this subject has been considered.⁴⁶

Within the same year as Union Pacific, the case of Denver Power & Irrigation Co. v. Denver & Rio Grande Railroad Co.⁴⁷ was also decided. In this case, a private power and irrigation company sought to condemn railroad right-of-way for the construction of a reservoir site under Article II, Section 14 of the Colorado Constitution. In addressing the railroad's claim that the property could not be taken since it was already devoted to a public use, the Colorado Supreme Court approved what it referred to as the "general rule" in resolving this issue:

[P]roperty already

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