Chapter 35 - § 35.1 • CONSTITUTIONAL AND STATUTORY PROVISIONS

• Jurisdiction: Colorado

§ 35.1 • CONSTITUTIONAL AND STATUTORY PROVISIONS

The power of eminent domain is restrained by constitutional limitations for the protection of individual property rights.¹ The Colorado Constitution provides both for the taking of private property for private use and the taking of private property for public use.

§ 35.1.1—Taking for Private Use

Article II, § 14 of the Colorado Constitution provides:

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.²

This provision has been supplemented by several statutes authorizing the exercise of the right of eminent domain.³

The Colorado Supreme Court, in Pine Martin Mining Co. v. Empire Zinc Co.,⁴ discussed the term "private use" as used in the Colorado Constitution as follows:

Although the words "private use" occur in our Constitution and statutes, it is obvious that they do not mean a strictly private use, that is to say one having no relation to the public interest. The fact that the Constitution permits private property to be taken for certain specified uses is an implied declaration that such uses are so closely connected with the public interest as to be at least quasi public, or, in a modified sense, affected with a public interest; and from our acquaintance with the history of this state and of the conditions existing here, we know that such implied declaration is in harmony with the general, notorious and acknowledged facts. Though we have not heretofore said in so many words, the foregoing considerations prompted our repeated decisions to the effect that under our Constitution and statutes private persons have the right to take private property for the uses specified in the Constitution.

Although the constitutional provision authorizes the condemnation of a private way of necessity, it does not authorize condemnation for the purpose of constructing a private railroad.⁵

The right to bring a private condemnation action is not barred by the statute of limitations.⁶

With certain exceptions, no property acquired by eminent domain by an urban renewal authority may be subsequently transferred to a private party.⁷

§ 35.1.2—Taking for Public Use

In determining whether the power of eminent domain is properly exercisable in a particular case, when none of the exceptions of article II, § 14 authorizing the taking of property for private use are applicable, the court must determine whether the proposed use is a public use. The owners of the property to be condemned have the burden of proving that the taking is not for a public purpose.⁸

Both the Fifth and Fourteenth Amendments of the United States Constitution and article II, § 15 of the Colorado Constitution prohibit the taking of private property for public use without just compensation.⁹ Article II, § 15 of the Colorado Constitution provides:

Private property shall not be taken or damaged, for public or private use, without just compensation. . . .[W]henever 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.

The first sentence of this provision has been amplified by statute, as follows:

Notwithstanding any other provision of law, in order to protect property rights, without the consent of the owner of the property, private property shall not be taken or damaged by the state or any political subdivision for a public or private use without just compensation.¹⁰

This provision does not affect the right of a private party to condemn property as otherwise provided by law.¹¹

No definition has as yet been formulated which would serve as an infallible test in determining whether a use of property sought to be appropriated under the power of eminent domain is public or private. No precise line is drawn between the uses which would be applicable in all cases. Doubtless this arises from the fact that the courts have recognized that the definition of "public use" must be such as to give it a degree of elasticity capable of meeting new conditions and improvements, and the ever-increasing needs of society. Consequently, in...