Akin v. Four Corners Encampment, 05CA1228.

• Decision Date: 19 April 2007
• Docket Number: No. 05CA1228.,05CA1228.
• Parties: Jack AKIN and Carol Stepe, Petitioners-Appellants, v. FOUR CORNERS ENCAMPMENT, Dolores River Bridge Club, Incorporated, a Colorado corporation, Twin Spruce Property Owners, Inc., a Colorado corporation, and Cordy O. Wallace, Respondents-Appellees.
• Court: Colorado Court of Appeals

179 P.3d 139

Jack AKIN and Carol Stepe, Petitioners-Appellants, v. FOUR CORNERS ENCAMPMENT, Dolores River Bridge Club, Incorporated, a Colorado corporation, Twin Spruce Property Owners, Inc., a Colorado corporation, and Cordy O. Wallace, Respondents-Appellees.

No. 05CA1228.

Colorado Court of Appeals, Div. V.

April 19, 2007.

Samuel Yahn, Denver, Colorado, for Petitioners-Appellants.

Hale Friesen, LLP, Allan L. Hale, Robert T. Hoban, Jason Bradford Harms, Denver, Colorado, for Respondents-Appellees Four Corners Encampment and Dolores River Bridge Club, Incorporated.

McLachlan & Whitley, LLC, Marla C. Underell, Durango, Colorado, for Respondent-Appellee Twin Spruce Property Owners, Inc.

Kelly R. McCabe, P.C., Kelly R. McCabe, Hazen D. Brown, Cortez, Colorado, for Respondent-Appellee Cordy O. Wallace.

Opinion by Judge JONES.

Petitioners, Jack Akin and Carol Stepe, appeal the district court's judgment in favor of respondents on their petition seeking to condemn an easement for a private way of necessity over respondents' property pursuant to art. II, § 14 of the Colorado Constitution and § 38-1-102(3), C.R.S.2006. They also appeal the district court's order denying their motion to amend their petition to substitute a pipeline company as the petitioner, and the district court's orders awarding attorney fees to respondents.

Because we conclude that art. II, § 14 and § 38-1-102(3) do not authorize condemnation of an easement for a private way of necessity for the purpose sought by petitioners — to construct and maintain a natural gas pipeline and related connection equipment and facilities — we affirm the judgment of the district court. We further conclude that the district court did not abuse its discretion in denying petitioners' motion to amend the petition or in awarding attorney fees to respondents. We also remand for an award of respondents' appellate attorney fees.

I. Background

Petitioners own property in Montezuma County on which a natural gas well, known as the Mary Akin # 2 well, is located. They want to run a pipeline to the Trans Colorado Interstate Natural Gas Pipeline (Trans Colorado). They claim the "only feasible route" for such a line runs north along the east side of State Highway 145 for approximately one and three-quarters miles, then along the east side of Butler Subdivision Road for approximately one and seven-eighths miles. This route crosses property owned by respondents Twin Spruce Property Owners, Inc. (Twin Spruce), Four Corners Encampment (Four Corners), and either the Dolores River Bridge Club, Inc. (Bridge Club) or Cordy O. Wallace (depending on the location of the connection to the Trans Colorado, which crosses Four Corners' and Wallace's properties).

Petitioners' Second Amended Petition sought the right to condemn an easement for a private way of necessity to construct and maintain (year round) a buried pipeline, an interconnection apparatus and facilities (including a compressor, meter run, quality control equipment, data transmission unit, small condensate tank, small lube oil tank, pig catcher, a flare line and pit, and a 200-square-foot building housing some of the foregoing), and a one-quarter-square-mile safety and environmental buffer area. Petitioners' Second Amended Petition invoked only art. II, § 14 and § 38-1-102(3) as authority for condemning the easement.

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." Section 38-1-102(3) is substantially similar to art. II, § 14.

Twin Spruce moved to dismiss the Second Amended Petition under C.R.C.P. 12(b)(5) for failure to state a claim, arguing that (1) petitioners are not within the category of persons entitled to invoke art. II, § 14 and § 38-1-102(3) because they failed to allege that they own, as opposed to lease, the Mary Akin # 2 well; and (2) as a matter of law, natural gas pipelines and related equipment and facilities are not included in the uses contemplated by the constitutional and statutory phrase "private ways of necessity." Four Corners and the Bridge Club subsequently joined in Twin Spruce's motion.

The district court granted the motion to dismiss, concluding that the phrase "private ways of necessity" does not include natural gas pipelines.

Wallace then filed a motion for summary judgment, arguing that the district court's ruling on the motion to dismiss applied with equal force to petitioners' claim vis-à-vis her property. The district court granted that motion.

After the district court granted the motion to dismiss (approximately thirteen and one-half months after petitioners commenced the action), petitioners filed a motion requesting leave to amend their petition a third time to substitute as the petitioner GADECO-Akin Pipeline Company, Inc. (GADECO), which they had registered as a pipeline company pursuant to § 7-43-102, C.R.S.2006, less than two months earlier. Petitioners did not propose any other amendments to the petition. Respondents opposed the motion to amend. The district court denied the motion.

Respondents moved for attorney fees and costs. Respondents sought attorney fees pursuant to § 38-1-122(1), C.R.S.2006, which provides for an award of such fees "[i]f the court finds that a petitioner is not authorized by law to acquire real property or interests therein sought in a condemnation proceeding . . . ." Petitioners contested the reasonableness of the fees and costs sought by respondents and the sufficiency of respondents' supporting documentation. The district court awarded respondents attorney fees and costs as follows: $11,217.03 in favor of Twin Spruce; $9,992.36 in favor of Four Corners; $9,365.36 in favor of the Bridge Club; and $7,022.50 in favor of Wallace.

II. Private Way of Necessity

A. Dismissal Before Trial

Initially, petitioners contend that the district court erred in dismissing their petition before trial because § 38-1-105(1), C.R.S. 2006, requires that all questions of necessity be decided by the trier of fact. We perceive no error.

Here, the district court did not resolve a factual question of necessity — that is, whether the way sought is "reasonably necessary under the facts and circumstances of the case." West v. Hinksmon, 857 P.2d 483, 487 (Colo.App.1992). Rather, it resolved the legal question whether the phrase "private ways of necessity" includes ways for natural gas pipelines. Nothing in § 38-1-105(1) purports to preclude a court from determining such a question of constitutional and statutory interpretation before trial. See Boxberger v. State Highway Comm'n, 126 Colo. 526, 531-32, 251 P.2d 920, 923-24 (1952) (sufficiency of petition for condemnation may be challenged by motion to dismiss under rules of civil procedure).

In Pine Martin Mining Co. v. Empire Zinc Co., 90 Colo. 529, 11 P.2d 221 (1932), our supreme court interpreted a predecessor statute to § 38-1-105 as permitting a court to determine, before trial, "whether or not the purpose for which the property is sought to be taken is one for which condemnation is permitted." Pine Martin Mining Co., supra, 90 Colo. at 534, 11 P.2d at 223. In so holding, the court distinguished between that question and the question of necessity, which is one for the trier of fact. Pine Martin Mining Co., supra, 90 Colo. at 534, 11 P.2d at 223-24. Because § 38-1-105(1) does not differ appreciably from the statute construed by the court in Pine Martin Mining Co., we conclude that petitioners' contention is untenable.

B. Interpretation of Article II, § 14

Petitioners contend that the district court erred in concluding that the phrase "private ways of necessity," as that phrase is used in art. II, § 14 and § 38-1-102(3), does not include natural gas pipelines. We are not persuaded.

The district court decided this question in ruling on a motion to dismiss and a motion for summary judgment. We review rulings on such motions de novo. A.C. Excavating v. Yacht Club II Homeowners Ass'n, Inc., 114 P.3d 862, 865 (Colo.2005); Pub. Serv. Co. v. Van Wyk, 27 P.3d 377, 386 (Colo.2001). We also review the district court's ruling de novo because it presents a question of law. Klinger v. Adams County Sch. Dist. No. 50, 130 P.3d 1027, 1031 (Colo.2006); Harwood v. Senate Majority Fund, LLC, 141 P.3d 962, 964 (Colo.App.2006).

As noted, § 38-1-102(3) is substantially similar to art. II, § 14. Indeed, art. II, § 14 is the source of § 38-1-102(3). See Coquina Oil Corp. v. Harry Kourlis Ranch, 643 P.2d 519, 521 n. 2 (Colo.1982) (the legislature provided "for the exercise of the full scope of [the right under art. II, § 14] in section 38-1-102(3)"). Thus, this case essentially calls for us to interpret the language of art. II, § 14.

In construing a constitutional provision, our obligation is to give effect to the intent of the electorate that adopted it. In giving effect to that intent, we look to the words used, reading them in context and according them their plain and ordinary meaning. Where ambiguities exist, we interpret the constitutional provision as a whole in an attempt to harmonize all its parts.

Harwood, supra, 141 P.3d at 964 (citing Bruce v. City of Colorado Springs, 129 P.3d 988, 992-93 (Colo.2006)). "We [also] consider the object to be accomplished and the mischief to be prevented by the provision." Harwood, supra, 141 P.3d at 964 (citing City of Aurora v. Acosta, 892 P.2d 264, 267 (Colo. 1995)).

Article II, § 14 is "`a general inhibition against taking private property for private use without the consent of the owner, but with certain [specified] exceptions.'" Coquina Oil Corp., supra, 643 P.2d at 522 (quoting Crystal Park Co. v. Morton, 27 Colo.App. 74, 80, 146 P. 566, 569 (1915)) (bracketed word in Coquina Oil Corp.). Because the power to...