Chapter 3 - § 3.3 • NECESSITY CHALLENGE INVOLVING THE FEASIBILITY AND PRACTICALITY OF THE PROJECT

• Jurisdiction: Colorado

§ 3.3 • NECESSITY CHALLENGE INVOLVING THE FEASIBILITY AND PRACTICALITY OF THE PROJECT

On occasion, a necessity challenge has included assertions by an owner that the project for which the property is being condemned is not feasible or practicable for various reasons, in which event there is no need to take the property. However, in several early cases involving acquisitions for irrigation and water purposes, challenges of this nature were consistently rejected by the Colorado Supreme Court. In the first of these cases, Gibson v. Cann, a condemnation action was filed to acquire lands for an irrigation ditch and reservoir site.²⁹ The owner subsequently raised issues regarding the feasibility of the project in an effort to show that there was no need to take the property. In rejecting these claims, the court held:

There is certainly nothing in the constitution or the statutes on the subject of eminent domain from which it can be inferred that in investigating the question of necessity the courts can consider whether the petitioner is seeking to launch an enterprise which will be a financial success or not. . . . Such matters must be left entirely to the discretion and judgment of the promoters. It is solely the province of petitioner to determine the feasibility of constructing the proposed ditch and reservoirs. Therefore, whether the enterprise is practicable or can be made a success financially does not enter into the question of necessity. . . .³⁰

In Denver Power & Irrigation Co. v. Denver & Rio Grande Railroad Co., a private power and irrigation company sought to condemn railroad land for a reservoir site.³¹ In defense of the action, the railroad argued that the company could not condemn lands within the limits of a United States forest reserve. Referring to this issue as one between the petitioner and the government that did not otherwise effect the ability to condemn the property, the court rejected the company's claim.

Whether a condemnor would be able to appropriate the necessary water for use in an irrigation ditch was raised as a defense to a condemnation action in Schneider v. Schneider.³² Once again, the court found this issue to have no affect on the power to condemn the property. Citing Gibson v. Cann, the court reiterated that "whether or not the plan is a practical or feasible one is a matter which cannot be determined in a proceeding of this character."³³ For similar reasons, in Haver v. Matonock, the court refused to inquire into whether...