Story v. Bly

• Decision Date: 24 December 2008
• Docket Number: No. 07CA2076.,07CA2076.
• Citation: 217 P.3d 872
• Parties: Tamara L. STORY, Plaintiff-Appellee and Cross-Appellant, v. Richard W. BLY; Patsy A. Bly; and Bank of the West, f/n/a Community First National Bank, f/n/a The Bank, N.A., Defendants-Appellants and Cross-Appellees.
• Court: Colorado Court of Appeals

217 P.3d 872

Tamara L. STORY, Plaintiff-Appellee and Cross-Appellant, v. Richard W. BLY; Patsy A. Bly; and Bank of the West, f/n/a Community First National Bank, f/n/a The Bank, N.A., Defendants-Appellants and Cross-Appellees.

No. 07CA2076.

Colorado Court of Appeals, Div. III.

December 24, 2008.

As Modified on Denial of Rehearing February 5, 2009.

Burns, Figa & Will, P.C., Geoffrey P. Anderson, Genevieve M. Bernal, Greenwood Village, Colorado, for Plaintiff-Appellee and Cross-Appellant.

Duncan, Ostrander & Dingess, P.C., Robert R. Duncan, James Birch, Denver, Colorado, for Defendants-Appellants and Cross-Appellees.

Opinion by Judge CASEBOLT.

In this private condemnation action to obtain an access easement over an existing roadway, respondents, Richard W. Bly, Patsy A. Bly, and Bank of the West (collectively, the Blys), appeal the judgment in favor of petitioner, Tamara L. Story, which granted an access easement across the Blys' property and awarded them $12,500 for the easement and resulting damages. Story conditionally cross-appeals on several issues. We affirm.

The Blys own land in Jefferson County upon which Bank of the West holds a mortgage. Story purchased a vacant property between the Bly property and that owned by a neighboring family, the McClintocks.

The Blys access their property from a county road by their private roadway, which is also used by the McClintocks. The road begins at the county road, traverses the Bly parcel, crosses Story's parcel, and ends at the McClintock property.

Story attempted to purchase an easement upon the private roadway from the Blys. When those negotiations failed, Story commenced this action seeking a private way of necessity under article II, section 14 of the Colorado Constitution and section 38-1-102, C.R.S.2008. She sought to condemn a twenty-foot easement, ten feet on either side of the centerline of the existing roadway, to provide physical access to her property. Her petition attached a map depicting the existing roadway and requested an order of immediate possession.

The Blys moved to dismiss Story's petition, contending that it failed to provide a legal description of the property to be taken and contained an inadequate description of Story's intended use. The trial court held a hearing on Story's request for immediate possession and the motion to dismiss. Shortly before the hearing, Story provided a legal description of the easement she was seeking, and she clarified at the hearing that she sought the easement for the purposes of building, constructing, maintaining, and accessing one single-family house that she planned to build.

The trial court denied the motion to dismiss. It concluded, as relevant here, that Story's petition adequately described the easement she sought because, although it did not set forth a legal description, it described the already existing roadway over which she sought the easement, and the Blys had not argued that they were unclear about its location. The court also found, in light of Story's testimony that she wanted the easement to construct, build, maintain, and access one single-family home, that the Blys were not deceived by Story's failure to describe in her petition the particular purposes for which she sought the easement.

The court determined that Story was entitled to the requested easement and condemned a twenty-foot easement in perpetuity across the existing roadway, describing the property by the legal description Story had provided. The court granted immediate possession to Story, conditioned upon posting a bond.

At a later jury trial to determine compensation and damages, the trial court precluded the Blys' expert from testifying concerning the cost to construct a new road over the existing roadway. The court determined that the cost of construction was not an appropriate way to value the easement.

The jury awarded the Blys $3,300 for the easement and $9,200 for damages to the residue. The trial court later awarded costs to the Blys, but only allowed approximately one-half of their requested expert witness fees. This appeal followed.

I. Condemnation Petition

The Blys contend that the trial court should have dismissed the condemnation petition because it was facially deficient under the eminent domain statute. We are not persuaded.

A. Standard of Review

We view motions to dismiss under C.R.C.P. 12(b)(5) with disfavor. Rosenthal v. Dean Witter Reynolds, Inc., 908 P.2d 1095, 1099 (Colo.1995). We review a trial court's determination on a motion to dismiss de novo, Abts v. Board of Education, 622 P.2d 518, 521-22 (Colo.1980), and, like the trial court, must accept as true all averments of material fact contained in the complaint. Shapiro & Meinhold v. Zartman, 823 P.2d 120, 122-23 (Colo.1992).

A complaint need not express a complete recitation of all facts that support the claim, but need only serve notice of the claim asserted. Elliott v. Colo. Dep't of Corr., 865 P.2d 859, 861 (Colo.App.1993). Indeed, the chief function of a complaint is to give notice to the defendant of the transaction or occurrence that is the subject of the plaintiff's claims. Kluge v. Wilson, 167 Colo. 526, 527, 448 P.2d 786, 787 (1968). Thus, C.R.C.P. 12(b)(5) motions "are rarely granted under our `notice pleadings.'" Dunlap v. Colorado Springs Cablevision, Inc., 829 P.2d 1286, 1291 (Colo.1992) (quoting Davidson v. Dill, 180 Colo. 123, 131, 503 P.2d 157, 162 (1972)).

We must view allegations in the complaint in the light most favorable to the plaintiff. Verrier v. Colo. Dep't of Corr., 77 P.3d 875, 877 (Colo.App.2003).

Eminent domain proceedings are special statutory proceedings that must be conducted strictly according to statutory procedures. Ossman v. Mountain States Tel. & Tel. Co., 184 Colo. 360, 366, 520 P.2d 738, 742 (1974). In determining the scope of the condemnation power, narrow construction is the rule. Coquina Oil Corp. v. Harry Kourlis Ranch, 643 P.2d 519, 522 (Colo.1982). An eminent domain statute should be strictly construed against the condemnor and liberally construed in favor of the property owner. See Platte River Power Authority v. Nelson, 775 P.2d 82, 83 (Colo.App.1989) (Nelson).

B. Property Description

The Blys contend that the description of the property contained in the petition is insufficient. We disagree.

In relevant part, section 38-1-102(1), C.R.S.2008, requires a petition in condemnation to set forth "a description of the property."

Here, Story's condemnation petition states that the easement she seeks is a "20 foot wide" easement "over and across an existing dirt access road." Attached to Story's petition is a map that depicts the road in relation to the various properties. In our view, the petition gives notice of the claim asserted, identifies the transaction or occurrence, and informs the Blys sufficiently of the location of the proposed easement.

The Blys nevertheless contend that, under Nelson, 775 P.2d at 83, an easement must be described in the petition with such precision that the trial court may use the description to enter a rule and order at the end of the case. We disagree.

The Nelson division stated that "the record supports the trial court's finding that the ingress and egress portion of the easement was not described in the petition so as to enable it to enter a rule and order." Id. (emphasis supplied). We do not read that language to state a legal requirement that the petition must set forth precisely the legal description of the proposed easement such that a trial court may employ it at the end of the case to enter a rule and order. Instead, we view the division's statement as merely concluding that the trial court's finding had support in the record. Indeed, we perceive nothing in section 38-1-102(1) that would require the petition to include a legal description.

Moreover, in Nelson, the trial court found that the petition contained no description of the easement that was being condemned, and, on appeal, the condemnor conceded the lack of any description in the petition. The case before us is distinguishable because Story's petition contains a description of the location of the easement, albeit not a legal description, and identifies that location by attaching a map.

The Blys further assert that the access road is substantially less than twenty feet wide in many locations and, thus, they were left to guess where the full width of the easement would fall. However, we must view allegations in the complaint in the light most favorable to the plaintiff, Verrier, 77 P.3d at 877, and it is logical to conclude that the easement would fall ten feet on either side of the centerline of the existing roadway. Moreover, it is undisputed that, before the hearing on the motion, Story provided a complete legal description of the proposed easement.

The Blys further assert that their real estate appraiser was unable to calculate just compensation without a legal description. However, the road was in existence and appeared clearly on the map submitted with the petition, and the Blys themselves used it frequently. They could clearly show their appraiser what property was sought. The statute does not require that the description of the property must be sufficient for an appraiser to value the easement. In addition, the Blys' appraiser had the legal description over a year before the jury trial to determine just compensation commenced.

C. Description of Use

The Blys assert that, because the purposes for which the easement was sought were not adequately described in the petition, the court erred in denying their motion to dismiss. We disagree.

Under section 38-1-102(1), a condemnation petition must set forth "the purpose for which said property is sought to be taken or damaged."

The eminent domain statute requires that the condemnation petition "describe in detail the nature of the use to be made of the land so that the burden on the landowner can be accurately evaluated." Bear Creek...