Chapter 8 - § 8.5 • UNCONSTITUTIONAL "TAKINGS" AND "DAMAGING"

• Jurisdiction: Colorado

§ 8.5 • UNCONSTITUTIONAL "TAKINGS" AND "DAMAGING"

Where a governmental entity lacks the power of eminent domain, or the doctrine of inverse condemnation does not otherwise apply, the U.S. and Colorado constitutions still protect private property from governmental "takings" or "damage" without just compensation under some circumstances. In a highly publicized case involving the loss of several homes due to a landslide allegedly triggered in part by "cut and fill" activities attendant to the construction of a county road, claimants brought "taking and damaging" claims, but the district court dismissed the claims.⁴³ To recover in a "damaging" case, the owner must show it suffered a unique or special injury to its property or the property's appurtenances, or that the "taking and damaging" affects some right or interest that "the owner enjoys in connection with the property and which is not shared with or enjoyed by the public generally."...