Mountain Law: Effort to get rid of public trail by condemning a right-of-way for a ditch falls flat (column)
April 10, 2018
A recent case showed the limits of condemning rights-of-way for ditches. Water is a scarce and valuable resource in Colorado. Consequently, water is carefully managed, including its distribution in ditches, to promote beneficial uses. These ditches allow fertile valleys to prosper. Without them, properties distant from water sources would wither. Colorado is not a riparian state like those found in the east in which only lands adjacent to streams and rivers have water rights. Rather, as early as the tenure of the territorial Legislature, our lawmakers recognized that our arid climate required the creation of rights-of-way for moving water from one place to another. Therefore, Section 7 of our state constitution permits private property to be taken, without the consent of the owner, for "reservoirs, drains, flumes, or ditches on or across the lands of others." It also permits public land to be condemned for rights-of-way for similar purposes.
With that background, we arrive at the recent case of CAW Equities v. City of Greenwood Village in which a landowner, CAW, owned various parcels that were bisected with a public trail between the Highline Canal to the north and Long Road to the south. The city owned the trail by a plat dedication plus a separate easement agreement providing for pedestrian and equestrian use.
CAW proposed creating a new trail along the edge of one of them in exchange for the city agreeing to vacate the existing public trail. The city expressed interest initially, so CAW made some improvements to the new route and formally proposed a deal to the city. However, the city ultimately rejected the proposal. CAW then offered to purchase the public trail for $85,300. The city did not respond to the offer, but rather began making improvements to the public trail.
CAW then filed a lawsuit under Section 7 seeking to condemn the entire public trail to construct a ditch from the Highline Canal to the southern end of CAW's parcels. In other words, it wanted to take the trail and replace it with a ditch.
The city predictably opposed the lawsuit and argued that it had been filed in bad faith and without complying with condemnation statutes. CAW responded that the condemnation statutes were unconstitutional because they created obstacles to exercising the condemnation right under Section 7. The case ended up in the Colorado Court of Appeals, which held that the Legislature, through the eminent domain statutes, may regulate Section 7 so long as it does not unnecessarily limit or curtail the constitutional right. To hold otherwise would allow private condemnors, like CAW, an unfettered ability to condemn property without any guiding principles, and would leave condemnees, like the city, and courts with little understanding of the contours of the right.
The court ultimately decided the case based on the "prior public use doctrine," which goes back to a 1902 decision determining that a private company could not condemn a piece of land for a reservoir when it was already being used for a railroad. The old decision basically held that property already being used for one public use could not be condemned for another absent compelling reasons for doing so. If it were any other way, then public land could be condemned back and forth indefinitely for different public uses. The court held that the authority under Section 7 to condemn public lands does not permit condemning entire tracts of land currently in public use. This is particularly the case where CAW could obtain a right-of-way without eliminating the existing public trail. Thus, the court rejected CAW condemning the trail to build the ditch.
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If a party loses a condemnation case because it does not have authority to condemn, the court is permitted by the condemnation statutes to award costs and attorney's fees to the other side. In this case, CAW was ordered to pay the city's costs and attorney's fees. Unless the Colorado Supreme Court hears the case and overturns it, the decision will stand as a cautionary tale to the limits of condemning rights-of-way for ditches over public land. More broadly, it shows that condemning a ditch is probably not a viable way to get rid of an undesirable public trail.
Noah Klug is owner of The Klug Law Firm, LLC. He may be reached at 970-468-4953 or Noah@TheKlugLawFirm.com.