Chapter 4 - § 4.3 • PETITION IN CONDEMNATION
| Jurisdiction | Colorado |
Condemnation actions are commenced with the filing and service of a pleading referred to as a petition or a petition in condemnation. An example of a petition is included in Appendix A of this book.7 In the petition, the condemnor is usually referred to as the petitioner and the owner, together with other interested parties, as the respondents. The petition in condemnation should be drafted so as to state in as concise a manner as possible a prima facie case for the taking of property by eminent domain.8 In Lavelle v. Town of Julesburg, the supreme court held that it is only necessary that a petition plead the ultimate facts that entitle a petitioner to initiate the condemnation proceedings, and not the evidence to prove those facts.9
C.R.S. § 38-1-102(1) contains a list of specific provisions to be included in the petition. This statute generally provides that the petition set forth the condemning party's
authority in the premises, the purpose for which said property is sought to be taken or damaged, a description of the property, the names of all persons interested as owners or otherwise, as appearing of record, if known, or, if not known, stating that fact, and praying such judge to cause the compensation to be paid to the owner to be assessed.10
In a few instances, petitions have been dismissed for failure to comply with requirements deemed necessary for a proper exercise of the power of eminent domain.11 The following discussion therefore offers further explanation of the statutory requirements noted above, as well as additional provisions routinely included in a petition by practitioners in the area.
§ 4.3.1—Naming Necessary Parties to the Action
The petition in condemnation should reflect the accurate and full name of the governmental entity seeking to condemn the property. As stated above, C.R.S. § 38-1-102(1) requires that the petition also include "the names of all persons interested as owners or otherwise, as appearing of record." Which persons or entities to name in the petition, in addition to the owner of record, can be generally determined through a title commitment obtained from a title company, as well as an examination of the underlying title documents. Unless there is a specific reason for not naming all parties that have a recorded interest in the property being condemned, the caption of the petition should identify all such persons or entities as respondents to the action. Furthermore, in the body of the petition, a separate allegation for each respondent is generally included that references the name of the person or entity, the nature of the interest that he, she, or it may have in the property, and the book and page number where the instrument identifying his, her, or its interest can be found in the county clerk and recorder's office.
In identifying the "owner" of the property to be condemned in the petition, the petitioner must exercise a degree of caution. If the petition identifies a specific party as being the owner, that allegation will be deemed an admission on the petitioner's part that title is indeed in the party so named. Such was the holding in City of Englewood v. Reffel:
If the petition names certain parties as the owners of the property sought to be taken, the petitioner is held to have conceded the question of title, and it is unnecessary for the owners to offer proof on that point. Similarly, the petitioner is estopped from showing that the title is in the public, or in itself by dedication, prescription or otherwise, if it has alleged in its petition that the respondent is the owner.12
An unintended waiver by the petitioner of the right to challenge the owner's title may be avoided by a careful review of the title work before the condemnation action is filed. If an examination discloses a potential defect in the owner's title, this fact should be noted in the petition in condemnation.
Should the condemning entity itself have some ownership right in the property to be acquired, but for some reason that right is "defective," the condemnation statutes provide a specific procedure for resolving the situation. C.R.S. § 38-1-105(5) states that if the petitioner is of the opinion that it has "title, claim or interest in or lien upon" the property to be condemned, it may file a condemnation action asserting the nature of its rights and its claim will then be litigated. This statute was relied on in Department of Transportation v. First Place LLC, where, based on a 1939 deed, the department asserted ownership rights in property being taken for a highway expansion project near the City of Blackhawk.13 The department appealed from a trial court determination that the department had no lawful rights based on the deed. On appeal, the court of appeals reversed, ruling that the department was a co-grantee under the deed and therefore had a legal right to the property at issue.14 The court also ruled that the department was not precluded by the doctrine of promissory estoppel from asserting such rights based on certain alleged conduct in the case.
As stated above, unless there is a specific reason not to, all parties who have a recorded interest in the property to be condemned should be named in the condemnation petition.15 This is because the general rule is that any party who has a recorded interest in the property, but is not named in the petition, will retain his or her rights in the property, in which event the petitioner takes title to the property "subject to" the party's interests.16
In certain situations, of course, a petitioner may intentionally take title "subject to" the pre-existing rights of others. This often occurs with respect to minor utility or other easement rights that the petitioner has determined will not interfere with the design or construction of the project. It may also occur in situations where the condemning entity simply does not have the legal authority to take the outstanding interests. In such instances, the petitioner may either decide not to name the party in the action or make its position clear by specifically stating in the petition that the interest is not being taken.
When dealing with persons who may have an interest in the property, but whose identities are "unknown" for whatever reason, C.R.S. § 38-1-102(1) provides a process for addressing this matter by the filing of an affidavit. The issue of condemning the interests of "unknown parties" was also addressed in Colorado Eastern R. Co. v. Chicago, B. & Q. Ry. Co.17
Pursuant to C.R.S. § 39-3-134, the treasurer of the county in which the property is located is almost always named in the petition as an additional respondent. Naming the treasurer will ensure that taxes due and owing on the property will be paid from any monies deposited or awarded in the case.18 Similarly, if the property is encumbered by a deed of trust or mortgage interest, the public trustee of the county should also be named as an additional respondent, so that appropriate releases can be obtained.
In nearly all condemnation actions, separate...
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