City of Northglenn v. Grynberg, 91SC767

• Citation: 846 P.2d 175
• Decision Date: 16 February 1993
• Docket Number: No. 91SC767,91SC767
• Parties: CITY OF NORTHGLENN, Colorado, Petitioner/Cross-Respondent, v. Jack J. GRYNBERG, Respondent/Cross-Petitioner.
• Court: Colorado Supreme Court

Page 175

846 P.2d 175

CITY OF NORTHGLENN, Colorado, Petitioner/Cross-Respondent, v. Jack J. GRYNBERG, Respondent/Cross-Petitioner.

No. 91SC767.

Supreme Court of Colorado,

En Banc.

Feb. 16, 1993.

As Modified March 8, 1993.

Herbert C. Phillips, James S. Maloney, Hayes, Phillips & Maloney, P.C., Denver, for petitioner/cross-respondent.

Phillip D. Barber, Keith D. Tooley, Welborn Dufford Brown & Tooley, P.C., Denver, for respondent/cross-petitioner.

Patricia L. Wells, Henry C. Teigen, Casey S. Funk, Asst. City Attys., Denver, for amicus curiae the City and County of Denver acting by and through its Board of Water Com'rs.

Kathleen E. Haddock, Denver, for amici curiae Colorado Mun. League and the City and County of Denver acting by and through its Board of Water Com'rs.

Peter J. Wall, John D. Amen, Burns, Wall, Smith and Mueller, P.C., Denver, for amicus curiae Independent Petroleum Ass'n of Mountain States.

Justice MULLARKEY delivered the opinion of the Court.

We issued a writ of certiorari to review the court of appeals decision in Grynberg v. Northglenn, 829 P.2d 473 (Colo.App.1991) (Grynberg II ), affirming an inverse condemnation judgment in favor of the plaintiff, Jack J. Grynberg, against the defendant, the City of Northglenn, which constructed a 6,000 acre-foot wastewater reservoir on land overlying part of Grynberg's mineral lease. The trial court found that Grynberg's property had been taken or damaged, and a jury of freeholders awarded him $646,930, plus interest, costs and attorney fees for a total of $862,155.05.

This action is before this court for the second time. In Grynberg v. City of Northglenn, 739 P.2d 230 (Colo.1987) (Grynberg I ), we held that Grynberg had a claim for geophysical trespass against the City of Northglenn for a test hole that Northglenn drilled into Grynberg's mineral estate in preparation for Northglenn's construction of the reservoir. We remanded the case to the trial court to develop a record and to consider affirmative defenses, such as governmental immunity.

On remand, Grynberg abandoned his tort claims, including the geophysical trespass claim, and proceeded on a theory of inverse condemnation. Pursuant to section 38-1-101, 16A C.R.S. (1982 & 1992 Supp.), the trial court determined all questions and issues except the amount of compensation, including that a taking or damaging had occurred. After a trial on damages to a jury of freeholders pursuant to section 38-1-106, Grynberg was awarded the amount described above and the verdict was affirmed by the court of appeals. We reverse.

I.

The facts as developed at trial after remand are essentially the same as those detailed in our previous opinion. See Grynberg I, 739 P.2d at 232-33. Other relevant facts will be described as appropriate in this opinion.

After remand, the trial court dismissed the tort claims against Northglenn. Grynberg elected to abandon his tort claims ¹ and successfully proceeded on a theory of inverse condemnation. Northglenn appealed the verdict, which was affirmed by the court of appeals in Grynberg II, 829 P.2d 473. We granted Northglenn's petition for writ of certiorari on two issues: (1) whether the court of appeals erred in holding that the inability to mine under the reservoir and its embankment, the drilling of test holes, and the filing of a report constitute a taking within the meaning of Article II, Section 15 of the Colorado Constitution; and (2) whether the court of appeals erred in finding the evidence presented at trial was sufficient in law and fact to support the jury's verdict. We also granted Grynberg's cross-petition for writ of certiorari on the issue of whether Article II, Sections 15 and 25, of the Colorado Constitution require that the prejudgment interest awarded to Grynberg on his inverse condemnation judgment be calculated from the date of the taking of his property by the City of Northglenn. Because we conclude that there was no constitutional taking or damaging, we reverse on the first issue and do not address the other two issues.

II.

Article II, Section 15 of the Colorado Constitution provides, in relevant part: "Private property shall not be taken or damaged, for public or private use, without just compensation." Inverse condemnation actions, as well as eminent domain actions, are based on this section. Ossman v. Mountain States Tel. & Tel. Co., 184 Colo. 360, 365, 520 P.2d 738, 741-42 (1974). Because an inverse condemnation action is based on the "takings" clause of our constitution, it is to be tried as if it were an eminent domain proceeding. Id. at 366, 520 P.2d 738. Section 38-1-101, 16A C.R.S. (1982 & 1992 Supp.), ² provides that, in an eminent domain proceeding, the only issue that goes to the jury is the amount of compensation to be awarded. It is for the trial court alone to decide whether a taking has taken place. Prior to opening statements in this case, the trial court ruled that a taking had occurred. The ruling was based on the statements of counsel and stipulated facts as detailed in Grynberg I, although the trial court reserved the right to revisit its ruling. After the jury verdict, the trial court did not alter the initial ruling. However, the court made some statements revealing its uncertainty about the ruling:

Okay this is a road we travelled down a number of times in the course of this, and it is somewhat comforting to know that whatever I decide here, I'm sure I will not be the last word on the subject. If we had a scale of zero to ten and zero meant I was sure I was wrong and ten meant I was sure I was right, we would be at a point of about 5.1 on that scale, and perhaps 5.01 as to what I'm going to do.

The facts that developed at trial, relative to the issue of whether a taking or damaging has occurred, were undisputed. ³ Under these circumstances we will first determine the applicable legal standard and then apply that standard to determine whether a constitutional taking or damaging has occurred. People ex rel. Woodard v. Colorado Springs Bd. of Realtors, Inc., 692 P.2d 1055, 1068 (Colo.1984) (appellate court may apply proper legal standard to uncontroverted facts).

Ownership of the surface and mineral estates of the land at issue was severed at some time prior to the relevant events in this case. As part of his business exploring and prospecting for minerals, Grynberg leased the right to explore for coal in Section 36 (640 acres of land) for $640 per year from the State of Colorado which owned the mineral estate. He bought the coal lease from the state with the hope of selling all or some of the rights to explore and mine coal from the leasehold, or to mine the leasehold himself. Although Northglenn purchased the surface estate from the previous owner, it did not purchase or seek to condemn the mineral estate.

A taking occurs when an entity clothed with the power of eminent domain substantially deprives a property owner of the use and enjoyment of that property. See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, ----, 112 S.Ct. 2886, 2895, 120 L.Ed.2d 798 (1992) (when owner called upon to sacrifice all economically beneficial uses of real property to the common good, owner has suffered a taking). See also Lipson v. Colorado State Dep't of Highways, 41 Colo.App. 568, 569, 588 P.2d 390, 391 (1978) (quoting City of Buffalo v. J.W. Clement Co., 28 N.Y.2d 241, 321 N.Y.S.2d 345, 269 N.E.2d 895 (1971)) (requirements for a de facto taking are "a physical entry by the condemnor, a physical ouster of the owner, a legal interference with the physical use, possession or enjoyment of the property or a legal interference with the owner's power of disposition of the property."). To be entitled to compensation under the state constitution, there must be either a taking or a damaging of private property without just compensation.

It has been said that by including damaging in the just compensation provision, the Colorado Constitution affords an aggrieved property owner a greater measure of protection than does the Constitution of the United States. Mosher v. City of Boulder, 225 F.Supp. 32, 35 (D.Colo.1964). Even without a "damage" provision in the relevant constitution or statute, the takings clause has been interpreted to compensate a property owner for incidental injury to the remainder of the property caused by a taking of some but not all of the property. La Plata Elec. Ass'n, Inc. v. Cummins, 728 P.2d 696, 698 (Colo.1986); ⁴ see also 4A Julius L. Sackman, Patrick J. Rohan, Nichols on Eminent Domain § 14.02 at 14-29 (1993). For example, under a pure takings clause (such as that in the United States Constitution), no compensation would be due to a property owner for injury caused by a highway built on property immediately adjacent to a property owner's land, while an owner who had only a minuscule portion of his or her property taken for such a highway would be due compensation. Such a result may well be inequitable, see La Plata Electric at 705 (Rovira, J., dissenting), but the same result would be reached if a private landowner built an improvement at the boundary of his or her property. The intent of including the word "damaged" in the constitution was to grant relief to property owners who had been substantially damaged by the making of such public improvements abutting their lands, but whose land had not been physically taken by the government. See City of Pueblo v. Strait, 20 Colo. 13, 18, 36 P. 789, 791 (1894).

Most of this court's cases construing this provision of our constitution have dealt with governmental obstruction of ingress and egress to property, see, e.g., id. (building of a viaduct eight feet above a public street); State Dept. of Highways v. Interstate-Denver West, 791 P.2d 1119 (Colo.1990) (one of two access points to public streets taken by condemnation); Troiano v. Colorado Dept. of Highways, 170 Colo. 484, 463 P.2d 448 (1969) (building of Interstate 70), or extraordinary changes in the use of a street....