County Com'Rs of San Miguel v. Roberts

• Decision Date: 28 December 2006
• Docket Number: No. 05CA1370.,05CA1370.
• Parties: BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF SAN MIGUEL, State of Colorado, a body corporate and politic, Plaintiff-Appellee, v. Judy ROBERTS and McCollum Family Limited Partnership Number One, L.L.L.P., a Colorado limited liability limited partnership, Defendants-Appellants.
• Court: Colorado Court of Appeals

159 P.3d 800

BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF SAN MIGUEL, State of Colorado, a body corporate and politic, Plaintiff-Appellee, v. Judy ROBERTS and McCollum Family Limited Partnership Number One, L.L.L.P., a Colorado limited liability limited partnership, Defendants-Appellants.

No. 05CA1370.

Colorado Court of Appeals, Division VI.

December 28, 2006.

Steven J. Zwick, San Miguel County Attorney, Kevin J. Geiger, Assistant County Attorney, Telluride, Colorado, for Plaintiff-Appellee.

Tisdel Law Firm, P.C., Andrew A. Mueller, Tiffany A. Pezzulo, Ouray, Colorado, for Defendants-Appellants.

Opinion by Judge CARPARELLI.

Defendants, Judy Roberts and the McCollum Family Limited Partnership Number One, LLLP, appeal the trial court's judgment granting plaintiff, the Board of County Commissioners of the County of San Miguel, State of Colorado, declaratory and injunctive relief authorizing the County's surveyor to enter defendants' property to do field survey work and enjoining defendants from prohibiting access to their property by the County's surveyor. Defendants also appeal the trial court's order purporting to retain jurisdiction over any claims for damages resulting from survey work conducted by the County's surveyor. We affirm the judgment and vacate the order regarding the retention of jurisdiction as to damages.

I.

Defendant McCollum owns real property in Section 16, Township 42 North, Range 13 West, N.M.P.M., of San Miguel County. As pertinent here, defendant Roberts owns a seventy-five percent interest in a portion of Section 17, which is the adjacent section west of Section 16, as tenant in common with the Brad K. and Della J. Gray Living Trust. The Gray Trust is not a party to this action.

A road that was once part of the County's official road map crosses Sections 16 and 17. However, when defendants' predecessor acquired a patent to Section 16, the title did not include an exception that would allow for public use of the road.

In March 2004, the County contacted defendants and made a preliminary offer to purchase a public road easement. Defendants rejected the offer. Four months later, the County's surveyor notified defendants and the Gray Trust that he intended to survey the property, and he proposed a schedule for the survey. Defendants refused to grant the surveyor access to the property.

The County filed its complaint with the trial court seeking declaratory and injunctive relief authorizing the County's surveyor to access defendants' property. The trial court ruled that the County's surveyor was authorized to enter defendants' property to perform survey work needed for a legal description of the road and enjoined defendants from prohibiting access to their property by the County's surveyor.

II.

Defendants assert that the trial court disregarded the plain meaning of § 18-4-515, C.R.S.2006, when it permitted the County to enter their property under the authority of that provision for the purpose of conducting a road survey in anticipation of condemnation. We disagree.

In accordance with § 18-4-515(2), C.R.S. 2006, a licensed professional land surveyor may lawfully enter public and private land to investigate and utilize boundary evidence and to perform boundary surveys after notifying the landowner not less than fourteen days before the desired date of entry. In response to such notice, the landowner may modify the time and other provisions of the surveyor's access, as long as the modifications do not unreasonably restrict completion of the survey. Section 18-4-515(3), C.R.S. 2006. The surveyor is liable for actual damages caused to the property in the course of the survey. Section 18-4-515(5), C.R.S.2006.

Section 18-4-515(1), C.R.S.2006, states that the section's provisions "do not affect or supersede the provisions and requirements of articles 1 to 7 of title 38, C.R.S., concerning condemnation proceedings, notwithstanding any laws to the contrary."

Statutory interpretation is a question of law subject to de novo review. Klinger v. Adams County Sch. Dist. No. 50, 130 P.3d 1027, 1031 (Colo.2006); Hendricks v. People, 10 P.3d 1231 (Colo.2000).

When interpreting statutory language, we give words and phrases their plain and ordinary meaning, read them in context, and construe them literally according to common usage unless they have acquired a technical meaning by legislative definition. Klinger, supra; Carlson v. Ferris, 85 P.3d 504 (Colo.2003). When the plain language of a statute is free from ambiguity, other rules of statutory construction are unnecessary. Kinder v. Indus. Claim Appeals Office, 976 P.2d 295 (Colo.App.1998); Spanish Peaks Mental Health Ctr. v. Huffaker, 928 P.2d 741 (Colo.App.1996). We resort to extraneous evidence for clarification of legislative intent only when an uncertainty exists regarding the statute's meaning. McNichols v. City & County of Denver, 120 Colo. 380, 209 P.2d 910 (1949).

A.

Defendants first argue that "§ 18-4-515 does not apply to condemnation proceedings" and may not "be used by public entities in place of the applicable condemnation procedures." Defendants' argument is premised on the provision's statement that it does not "affect or supersede" statutory condemnation provisions and requirements. We are not persuaded.

The word "affect" means "to produce an effect . . . upon," "to produce a material influence upon or alteration in," or "to have a detrimental influence on." Webster's Third New International Dictionary 35 (1986). Giving the word "affect" its plain and ordinary meaning, we conclude that § 18-4-515 does not change, alter, or lessen the requirements of articles 1 through 7 of title 38 in condemnation actions.

The word "supersede" means to "be superior to," "to make obsolete, inferior, or outmoded," "to make void," "to make superfluous or unnecessary," "to take the place of," or "to cause to be supplanted in a position or function." Webster's, supra, at 2295. Giving the word "supersede" its plain and ordinary meaning, we conclude that § 18-4-515 does not void, replace, supplant, or make unnecessary any provisions or requirements of articles 1 through 7 of title 38 in condemnation actions.

Therefore, we agree with defendants that § 18-4-515 may not be used "in place of the applicable condemnation procedures." However, contrary to defendants' argument, there is no basis to conclude that it "does not apply" or may not be used in support of or in conjunction with a contemplated condemnation proceeding.

B.

Defendants also argue that the County used § 18-4-515 "as a means of taking private property" and, thereby, disregarded the rights afforded them in the condemnation statutes. We disagree.

1.

Article II, § 15 of the Colorado Constitution provides that "[p]rivate property shall not be taken or damaged, for public or private use, without just compensation." A taking occurs when an entity clothed with the power of eminent domain substantially deprives a property owner of the use and enjoyment of the property. City of Northglenn v. Grynberg, 846 P.2d 175, 178 (Colo. 1993). A taking can occur if the government interferes with the physical use, possession, enjoyment, or disposition of private property, or if the government exercises dominion and control over private property. Grynberg, supra, 846 P.2d at 182. If the government takes private property for a public purpose, it must pay just compensation, measured by the value of the landowner's lost interest, not the taker's gain. Fowler Irrevocable Trust 1992-1 v. City of Boulder, 17 P.3d 797, 802 (Colo.2001).

A temporary taking occurs for a definite period of time, at the end of which the landowner's legal interest and occupation of the property are reestablished. Fowler, supra, 17 P.3d at 802. Because of its limited duration, a temporary taking requires that just compensation be paid based on the fair rental value of the property during the period of the taking. Fowler, supra, 17 P.3d at 802.

When reviewing a court's action in eminent domain proceedings, we defer to the trial court's findings of fact and conduct de novo review of its legal conclusions. Fowler, supra, 17 P.3d at 802. The determination of whether a taking has occurred is a question of law that we review de novo. Pub. Serv. Co. v. Van Wyk, 27 P.3d 377 (Colo.2001); see also City of Northglenn v. Grynberg, supra (in eminent domain proceedings, the only issue decided by the jury is the amount of compensation awarded, while the trial court determines whether a taking has occurred).

2.

The County's surveyor estimated that his employees would need to access defendants' property as many as seventeen times during seventeen days of a three-week period. A maximum of five individuals would enter the property at any given time, consisting of two two-man crews and the surveyor himself.

Defendants use their property for private recreation such as walking, hiking, biking, and wildlife observation. Although defendants also make their property available to paying clients for recreational activities and hunting, the proposed schedule called for the survey to be completed before the start of hunting season, and defendants presented no evidence that they had, and would be forced to cancel, commitments to paying clients. Defendants also use the property for some agricultural purposes, including cattle grazing. The record contains no evidence of the amount, if any, of financial gain defendants derive from the recreational and agricultural activities that take place on their property.

The surveyor testified that he would take precautions to avoid the possible detrimental effects of his survey activities to farming activities, including being cautious that cattle would not escape enclosed areas and using motorized vehicles only on roads. In hunting areas, the surveyor and his employees would wear orange safety vests to remain visible and would request that landowners maintain a safety zone of one-half mile between the survey crews...