La Plata Elec. Ass'n, Inc. v. Cummins, 85SC82

Decision Date10 November 1986
Docket NumberNo. 85SC82,85SC82
Citation728 P.2d 696
PartiesLA PLATA ELECTRIC ASSOCIATION, INC., a Colorado corporation, Petitioner, v. Louis M. CUMMINS; Leona E. O'Brien; John E. Ranne; Alameda M. Ranne; Earl W. Rounsaville, a/k/a Earl W. Roundsavill; Buckley D. Wagner, a/k/a Buck D. Wagner; Laquita J. Wagner; Bank of Durango; Rickie Lee Londe; and Clyde Demel, as Public Trustee of La Plata County, Colorado, Respondents.
CourtColorado Supreme Court

Maynes, Bradford & Shipps, Sara Duncan, Durango, for petitioner.

E.B. Hamilton, Jr., Durango, for respondents.

Horn, Anderson & Johnson, Gregory L. Johnson, William Kelly Dude, James J. DuBois, Colorado Springs, for amicus curiae Colorado Ass'n of Mun. Utilities.

Fischer, Brown, Huddleson & Gunn, Charles R. Huddleson, Bryan W. Blakely, Fort Collins, for amicus curiae Platte River Power Authority.

LOHR, Justice.

The question presented in this case is whether owners of real property who have a portion of their property condemned for the purpose of constructing an electric power line are entitled to compensation for reduction in the value of the remainder of the property resulting from aesthetic damage and loss of view. In La Plata Electric Ass'n, Inc. v. Cummins, 703 P.2d 592 (Colo.App.1985), the Colorado Court of Appeals held that the La Plata County District Court did not err in admitting evidence of loss of aesthetic value and view and approving compensation for damage to the remainder of the landowners' property caused by that loss. We granted the petition for certiorari filed by the condemning authority, La Plata Electric Association, Inc. We affirm the judgment, for we conclude that a property owner is entitled to present evidence concerning, and receive compensation for, all damage to the value of the remainder resulting from a partial taking of real property.

I.

In May 1981, petitioner La Plata Electric Association, Inc. (La Plata), a cooperative electric association, filed a petition in condemnation in La Plata County District Court. La Plata sought a fifty-foot-wide easement for an electric power line across the middle of a 19.553 acre parcel of land owned by respondents Buckley D. Wagner and Laquita J. Wagner. 1 The land is situated near Durango and commands a view of that city and of the mountains beyond it. Proceedings before the district court judge resulted in the award of immediate possession to La Plata and the resolution of all other issues except for the amount of compensation. While the compensation issue remained pending, La Plata constructed the power line.

The district court appointed a board of three commissioners to determine the amount due to the Wagners in compensation for the taking. See § 38-1-105(1) and (2), 16A C.R.S. (1982 & 1985 Supp.). At a hearing held by the commissioners, La Plata presented evidence, through an appraiser, that the highest and best use of the Wagners' property was as investment property to be held for future development, that the value of the property actually taken was $2,811, and that there was no damage to the remainder of the property. Elaborating on this latter conclusion, the appraiser stated that in his opinion any unsightliness or loss of view caused by the construction of the power line had no effect on the value of the remainder of the property.

Buckley Wagner and two appraisers appearing on behalf of the Wagners testified and agreed with La Plata's expert as to the highest and best use of the Wagners' property. They differed with La Plata's appraiser, however, as to the value of the property taken and as to the effect of the taking on the value of the remainder. Of particular relevance to this review, these witnesses testified that the value of the remainder was reduced by reason of the unattractiveness of the power line and the impairment of view resulting from its construction. La Plata objected to the admission of any evidence concerning a diminution of value caused by loss of view and aesthetic damage on the ground that a reduction in property value stemming from these causes is not compensable as a matter of law. The district court denied the objection.

Following the hearing, the commissioners submitted a written certificate reflecting their findings that the value of the property taken was $4,844 and that the damages to the remainder were $5,000. The district court entered a judgment based on these findings.

La Plata appealed, challenging only the award of compensation for injury to the remainder of the Wagners' property. The court of appeals affirmed, La Plata Electric Ass'n, Inc. v. Cummins, 703 P.2d 592 (Colo.App.1985), and we granted La Plata's petition for certiorari. 2

II.

"Private property shall not be taken or damaged, for public or private use, without just compensation." Colo. Const., art. II, § 15. When a portion of a landowner's property is taken, just compensation includes compensation for injury to the remainder of the property as well as payment for the portion actually taken. The proper measure of compensation for injury to the remainder is the reduction in the market value of the remaining property that is caused by the taking. Mack v. Board of County Commissioners, 152 Colo. 300, 304-05, 381 P.2d 987, 989 (1963). In the present case, the commissioners found that the value of the remainder of the Wagners' property had been reduced by $5,000 as a result of the taking. The court of appeals affirmed that finding as supported by the evidence, 703 P.2d at 594-95, and we accept that holding on evidentiary sufficiency as conclusive for the purpose of this opinion, see footnote 2.

La Plata contends, however, that the trial court erred in permitting the commission to consider evidence of diminution of value of the remainder of the Wagners' property resulting from the adverse aesthetic impact of the power line and the impairment of view resulting from its construction. The resolution of this issue is dependent upon the answer to the question of whether diminution of market value attributable to these causes is legally cognizable.

This court has often held in the past that in order for a property owner to be entitled to compensation, "the damage to the property must affect some right or interest which the landowner enjoys and which is not shared or enjoyed by the public generally. The damage must be different in kind, not merely in degree, from that suffered by the public in general." Troiano v. Colorado Dept. of Highways, 170 Colo. 484, 494, 463 P.2d 448, 452 (1969). Accord State Dept. of Highways v. Davis, 626 P.2d 661, 664-65 (Colo.1981); Majestic Heights Co. v. Board of County Commissioners, 173 Colo. 178, 187, 476 P.2d 745, 749 (1970); Radinsky v. City & County of Denver, 159 Colo. 134, 138, 410 P.2d 644, 646-47 (1966); Gayton v. Dept. of Highways, 149 Colo. 72, 79, 367 P.2d 899, 902 (1962); Lavelle v. Town of Julesburg, 49 Colo. 290, 300-01, 112 P. 774, 778 (1911); Denver & Santa Fe Ry. Co. v. Hannegan, 43 Colo. 122, 126-27, 95 P. 343, 344-45 (1908); Gilbert v. Greeley, Salt Lake & Pacific Ry. Co., 13 Colo. 501, 508-09, 22 P. 814, 816 (1889); City of Denver v. Bayer, 7 Colo. 113, 115-18, 2 P. 6, 7-9 (1883); Hayes v. City of Loveland, 651 P.2d 466, 468 (Colo.App.1982); City of Lakewood v. DeRoos, 631 P.2d 1140, 1142-43 (Colo.App.), cert. denied (Colo.1981). Of particular relevance to this case, we held in Troiano that a loss of view from property caused by the construction of a viaduct on adjoining property was not compensable, as the loss attributable to this factor constituted a type of damage suffered by the public in general, not damage unique or special to the subject property. 170 Colo. at 500, 463 P.2d at 455-56. We considered a form of aesthetic damage, that is, "[l]oss of affinity or eye appeal," resulting from the construction of the structure to be similarly noncompensable. 170 Colo. at 500-01, 463 P.2d at 456.

Most of our prior cases, including Troiano, have involved inverse condemnation actions by landowners in which these owners claimed that damage to their property resulted from the use of adjoining or nearby land by a public entity; no physical taking of the plaintiff landowners' property occurred. However, two of our cases, one early in the century and the other recent, did involve damages to the remainder of a landowner's property incident to a condemnation. State Dept. of Highways v. Davis, 626 P.2d 661 (Colo.1981); Lavelle v. Town of Julesburg, 49 Colo. 290, 112 P. 774 (1911).

In Lavelle v. Town of Julesburg, we held that an owner of three contiguous lots could not be compensated for damages for noise, smoke, vapors and increased dangers from fire resulting to those lots when the town condemned an adjacent lot used as a means of ingress and egress to the three lots. The condemned lot was taken for construction of a power house for a waterworks system. We considered these damages to be shared by the public generally and held, without detailed discussion, that such damages are noncompensable.

Then recently, in State Dept. of Highways v. Davis, a case involving limitation of access to a freeway, we held that whether property was actually taken was immaterial to the issue of damage to the remainder based upon loss or limitation of access. 626 P.2d at 665. The Davises sought compensation for damage to the remainder of their property due to the loss of direct highway access when the state condemned a strip of their land in order to build a frontage road as part of a project for improvement of State Highway 50 to create a limited access freeway. Id. at 662-63. The court of appeals allowed recovery, specifically recognizing a distinction between the award of compensation in the case of a partial taking--in which all resulting damages are compensable--and the case of alleged damage when no land has been taken--in which only damages unique or special to the property are recoverable. State Dept. of...

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