Petition for Writ of Certiorari — Quartz Creek Land Co. v. Childers

Bupreme Court

» U.

FILED s

98 747 Nov 35-1099

No. OFFICE OF THE CLERK

In The

Supreme Court of the United States

October Term, 1998

+

QUARTZ CREEK LAND COMPANY,

Petitioner,

COANTHA CHILDERS,

Respondent.

On A Petition For A Writ Of Certiorari To The

Gunnison County District Court, State Of Colorado

¢

PETITION FOR A WRIT OF CERTIORARI

a

Craic A. WEINBERG

Counsel of Record

Stevens, LITTMAN &

Bippison, L.L.C.

250 Arapahoe, Suite 301

Boulder, Colorado 80302

(303) 443-6690

Counsel for Petitioner

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED FOR REVIEW

Whether the Takings Clause of the United States

Constitution, as incorporated by the Fourteenth Amend-

ment, precludes a State from authorizing an individual

from taking private property for private use in order to

provide more direct and convenient access.

il

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW ............ i

TABLE OF AUTHORITIES «occ ccotesdcess weer ee ili

OPINIONS: DEGAS oi osi.ca cis sok eekpecnsesi sien 1

FURIES CEN oo se sic ccs os eee eee eee 1

CONSTITUTIONAL PROVISIONS AND STATUTES

INVOLVED 65.0 o cae reed ee one eeeeeeets 2

STATEMENT OF Tete: CASE. ic. sii vew ss tees Vapeves 3

REASONS FOR GRANTING THE PETITION....... 6

A. THE QUESTION IS IMPORTANT............ 6

B. THE CONSTITUTIONAL CLAIM MUST BE

DECIDED BY A FEDERAL COURT.......... 8

C. THE COLORADO CONSTITUTION VIO-

LATES THE TAKINGS CLAUSE BY ALLOW-

ING CONDEMNATION OF PRIVATE

PROPERTY FOR PRIVATE USE ........002-0 9

APPENDIIN oo cscs 5 aed e eee a ee eee aes App. 1

mae

Ny Sy o

TL TE ee TONE IT TT ER EN eee en o>

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MTT we

TABLE OF AUTHORITIES

Page

Cases

Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 441, 66

é,. 84) | ARRAS essere 9

Bear Creek Development Corp. v. Dyer, 790 P.2d 897

IE EEE 2'4s voi ob ch su 546s Ride wid nde wins's 10

Brown v. McAnally, 97 Wash.2d 360, 644 P.2d 1153

TEE TT COE PP y Peers mney RP Ep ITE 11, 12

Caterpillar, Inc. v. Williams, 482 U.S. 386, 107 S.Ct.

Ss ORME RD ODT B's oc cha wescvontasecasens 9

Childers v. Quartz Creek Land Co., 946 P.2d 534

SN SL EMER 9 hohe S bak suka dane wacked vaes isn 5

Clark v. Nash, 198 U.S. 361, 25 S.Ct. 676, 49 L.Ed.

Ds Lie Se vis. kw WN debs oes teak eet ceS noe 7,8

Dollan v. City of Tagard, 512 U.S. __, 114 S.Ct.

eh | ae 9

Hairston v. Danville & Western Railway Co., 208 U.S.

598, 26 S.Ct. 331, 52 L.Ed. 637 (1908) ............ 7, 8

Hawaii Housing Authority v. Midkiff, 467 U.S. 229,

—— 104 S.Ct. 2321, 81 L.Ed.2d 186 (1984) .......... 10, 11

Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200,

ie ee OE SOPs 6 Sing eShde wawawawee wh seas ie 2 9

Lamborn v. Bell, 18 Colc. 346, 32 P. 989 (1893)....... 11

Landgraf v. USI Film Products, 511 U.S. 244, 114

5.Ct. 1485, 128 L.Ed.2d 229 (1994) ..............5. 10

Nollan v. California Coastal Comm'n, 483 U.S. 825,

107 S.Ct. 3141, 97 L.Ed.2d 677 (1987) .............. 8

iv

TABLE OF AUTHORITIES — Continued

Page /

Oklahoma Tax Commission v. Graham, 489 U.S. 838, : 8

109 S.Ct. 1519, 103 L.Ed.2d 924 (1989) ............. 8 j

Strickley v. Highland Boy Gold Mining Co., 200 U.S.

pe Be a * eee 7,8

;

ConstiTuTIONS, STATUTES, AND RULES ;

EE Ss A a 6 60 58 a hd Ba eS Rk Oe 7

eee” OR A a RS Pee eee a, a GO 10

Colo.Rev.Stat. §38-1-102(3) (1982)................ 2 2 6

Cot. SU, SO ee, OE ina wee aceseeeeas arene 7

a ee eS Ee er ele epee rr. rer oy 7

eae Oe 6 Rae eee ne hers me 7

Pe AUR ER Eo a ko hh wees ne en eke ASE 7

Ae RR i ener a ae 7

Wee. SE PE Fe aie is sd i aev ert bntocieis: ee 7

Grae. GE PR Ws Se oe 3, 9, 10 |

U.S. Const., Amendment XIV ................ 3, 4, 8, 10

oop, AR ORE: RE Gb Bw bok 8955 6s 2h Gee wok eee 11

Be SSR Be Oe on oo heed 35 40h ke ee 2,9

Sar Sr. EE oo be dy eke oh Aa we ae 2

UPAR Ts SPR D a 5s vs a's Wain Maha woe EE eee hep es 2

en Nn mem Fe

PETITION FOR WRIT OF CERTIORARI

Quartz Creek Land Company (“Petitioner”) respect-

fully prays that a Writ of Certiorari issue to review the

May 10, 1995 opinion of the Gunnison County District

Court, State of Colorado (the “trial court”).

*

OPINIONS BELOW

The opinion of the Gunnison County District Court,

State of Colorado, was not reported (App. 1-5). The opin-

ion of the Colorado Court of Appeals is reported at 946

P.2d 534 (Colo. App. 1997) (App. 6-12). The Colorado

Supreme Court’s Order denying certiorari as having been

improvidently granted was not reported (App. 16).

+

JURISDICTION

On May 10, 1995, the trial court issued an Order

concluding that access to private property serves a public

purpose and satisfies the requirements of the United

States Constitution (App. 1-5). The Colorado Court of

Appeals affirmed the trial court’s order without deciding

this constitutional issue (App. 5-12). On November 10,

1997, the Colorado Supreme Court granted Petitioner’s

Petition for Writ of Certiorari (App. 13-14). On June 25,

1998, after briefing and oral argument, the Colorado

Supreme Court denied the Petition as having been

improvidently granted (App. 16). On August 5, 1998, the

Colorado Supreme Court denied Petitioner’s Petition for

Rehearing; however, one Justice would have granted the

Petition for Rehearing (App. 18).

eae LE, LLL LLL

On October 28, 1998, Justice Breyer denied Peti-

tioner’s Motion for Extension of Time to File a Petition

for a Writ of Certiorari.

cE rae. «—

The jurisdiction of this Court is invoked pursuant to

28 U.S.C. §1257(a).!

Because the constitutionality of the Colorado Consti-

tution itself is drawn into question, and because neither

the State of Colorado nor any agency, officer, or employee

thereof is a party to this action, 28 U.S.C. §2403(b) may

apply. The notifications required by Rule 29.4(c) have

been made.

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

A. Colorado Constitution Article II, §14

“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.”

' Prior to 1988, a party had the right to appeal to this Court

from a decision upholding the constitutionality of a state

statute. Review is now by way of certiorari.

Ne nee

B. Colorado Revised Statute §38-1-102(3)

“Under the provisions of this section, private prop-

erty may be taken for private use, for private ways of

necessity, and for reservoirs, drains, flumes, or ditches on

or across the lands of others for agricultural, mining,

milling, domestic, or sanitary purposes.”

C. United States Constitution, Amendment V

“(NJor shall private property be taken for public use

without just compensation.”

D. United States Constitution, Amendment XIV, §1

“[NJor shall any State deprive-any person of life,

liberty, or property, without due process of law.”

.

STATEMENT OF THE CASE

This case involves the constitutionality of Article II,

Section 14 of the Colorado Constitution, and its enabling

legislation, §38-1-102(3), Colo.Rev.Stat., which both

authorize the taking of private property for private use,

contrary to the Takings Clause of the Fifth Amendment.

(App. 19-20).

Petitioner and Coantha Childers (“Respondent”) are

the current owners of adjoining parcels of rural land. On

April 13, 1994, Respondent filed a “Petition in Condem-

nation” for a private way through Petitioner’s land under

the authority of Article II, Section 14 of the Colorado

Constitution and §38-1-102(3), Colo.Rev.Stat. (1982). In

her Amended Petition, Respondent alleged that her prop-

erty was landlocked, that she had no legal access to the

county road system, and that the easement sought was

“the most convenient and direct route to the public street

system.” Respondent indicated no other purpose for the

proposed private condemnation.

On September 30, 1994, Petitioner filed a Motion to

Dismiss in the trial court. The Motion requested dismissal

because the Petition “fail[ed] to state that there is any

public purpose for the condemnation sought” (Record

Vol. L, pp. 12-18). On March 21, 1995, Petitioner filed a

Supplemental Motion to Dismiss in the trial court speci-

fically arguing that a private taking for private purposes

is contrary to the public purpose requirement and-would

“violate the 14th Amendment to the United States Consti-

tution. ... ” (Record Vol. I, pp. 48, 62).

On May 10, 1995, the trial court denied Petitioner’s

Motion to Dismiss and Supplemental Motion to Dismiss,

rejecting, among other issues raised, Petitioner’s constitu-

tional challenges to the taking of private property for a

private purpose (App. 2-3).

Prior to the “just compensation” trial, Respondent

filed a Motion te Amend the Petition in Condemnation.

The Motion to Amend indicated that it was not Respon-

dent’s intention that the easement be open to the public

but only that it serve as a private driveway for Respon-

dent. The amendment, entitled “Permanent Private

Driveway Easement,” provides that the easement is “for

residential purposes only and will provide access to no

more than four (4) residential sites.” Thus, the true pur-

pose of the taking was to enable Respondent to subdivide

and commercially develop her land into four residential

sites and to use the road as “the most convenient and

direct access.” Over Petitioner’s objection, the trial court

permitted the amendment.

Following the just compensation trial, the trial court

issued its Amended Rule and Order authorizing the tak-

ing of this private way.

The Colorado Court of Appeals affirmed. Childers v.

Quartz Creek Land Co., 946 P.2d 534 (Colo. App. 1997)

(App. 6-12). Despite the fact that Petitioner had briefed

and argued the “public purpose” issue before the Colo-

rado Court of Appeals (Opening Br. pp. 13-18), the panel

failed to address it in the writien decision. Petitioner also

filed a Petition for Rehearing specifically advising the

panel that “it failed to address the significant issue of

whether granting [Respondent] a private way satisfies the

‘public purpose’ requirement of the United States Consti-

tution” (Pet. For Rehearing pp. 1-3). The Court of

Appeals modified certain portions of its decision but still

failed to address the “public purpose” issue and denied

the Petition for Rehearing.

The Colorado Supreme Court granted Petitioner’s

Petition for Writ of Certiorari (App. 13-14). The Colorado

Supreme Court initially accepted the following issue:

“Whether a private person’s claim to take pri-

vate property under §38-1-102(3), 16A C.R.S.

(1982), and Article II, Section 14, of the Colorado

Constitution, for access to landlocked property

satisfies the ‘public purpose’ requirement of the

United States Constitution.” (App. 14).

After full briefing and oral argument, the Colorado

Supreme Court inexplicably denied the Writ of Certiorari

as having been improvidently granted (App. 16). The

Colorado Supreme Court also denied Petitioner’s subse-

quent Petition for Rehearing (Justice Kourlis would have

granted the Petition) (App. 18).

Thus, the Colorado Appellate Courts have refused to

decide in this case whether the Colorado Constitution is,

itself, unconstitutional under the Takings Clause of the

United States Constitution or, in other words, whether

one person may take an easement across his neighbor’s

property because it is the most convenient and direct

access and thereby allow the condemnor to subdivide

and develop the land.

REASONS FOR GRANTING THE PETITION

A. THE QUESTION IS IMPORTANT

This case strikes at one of the core protections guar-

anteed to the citizens of the United States under the

Federal Constitution — that their private property will not

be taken except for a “public purpose.” In contravention

to the Takings Clause, the State of Colorado has autho-

rized private persons to take private property for “pri-

vate use” under certain circumstances. Colo. Const. Art.

II, §14; §38-1-102(3), Colo.Rev.Stat. (1982) (“private prop-

erty may be taken for private use... .”) The trial court

decided an important question of federal law. It allowed

the Respondent to take Petitioner’s land for a private use

— the most convenient and direct access for subdivision

and development into four residential sites.

“Private condemnation” is not a concept that is

unique to Colorado. Indeed, many states have a constitu-

tional provision that allows for “private condemnation.”

See Ariz. Const. art. II, §17; Ga. Const. art. 1, §III, Para-

graph II; Mo. Const. art. 1, §28; Okla. Const. art. II §23;

Or. Const. art. I §18; Wash Const. art. I, §16; Wyo. Const.

art. I §32. A decision in this case will affect most of the

country in that many jurisdictions have either a similar

constitutional or statutory provision.

While previous Justices of this Court have held that

the Federal Constitution does not prevent the condemna-

tion by one person for his individual use of a right of way

over the land of another for the construction of an irriga-

tion ditch in Utah, Clark v. Nash, 198 U.S. 361, 25 S.Ct. 676,

49 L.Ed. 1085 (1905), or of a right of way over the land of

another for an aerial bucket line in Utah, Strickley v.

Highland Boy Gold Mining Co., 200 U.S. 527, 26 S.Ct. 301,

50 L.Ed. 581 (1906), the Court observed that “[i]t remains

for the future to disclose what cases, if any, of taking for

uses which the state constitution, law, and court approve

will be held to be forbidden by the Fourteenth Amend-

ment to the Constitution of the United States.” Hairston v.

Danville & Western Railway Co., 208 U.S. 598, 606, 28 S.Ct.

331, 52 L.Ed. 637 (1908).

In this case, the Respondent sought to take Peti-

tioner’s land because it was the “most conveniert and

direct” route to her land and so that she could subdivide

and commercially develop her property into four residen-

tial sites. By allowing such a taking, Colorado has gone

too far. While farming and exploitation of natural

resources were important public purposes as the country

was developing in the early 1900's (e.g., Clark v. Nash,

supra and Strickley v. Highland Boy Gold Mining Co., supra),

today, the overriding “public purpose” should be preser-

vation of this rural land and the conservation of its natu-

ral resources.

The importance of protecting private property rights

from intrusions by the government as well as other per-

sons is one of the most fundamental rights protected by

the Constitution and lies at the core of the concept of

“property.” See Nollan v. California Coastal Comm’n, 483

U.S. 825, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987) (the right to

exclude others is one of the most essential sticks in the

bundle of rights that are characterized as property). This

case presents the Court with the opportunity to answer

the critical question left open in Hairston, supra, to wit,

whether this type of taking, ostensibly authorized by the

Colorado Constitution and enabling legislation, is forbid-

den by the Fourteenth Amendment. es

B. THE CONSTITUTIONAL CLAIM MUST BE

DECIDED BY A FEDERAL COURT

Petitioner should have its federal constitutional claim

decided by a federal court. Petitioner was the defendant

in this case and did not select the state court forum. It

had no legal basis to remove the case to a federal court

despite its defense that the Colorado Constitution and

enabling legislation were repugnant to the United States

Constitution. See, e.g., Oklahoma Tax Commission v. Graham,

489 U.S. 838, 109 S.Ct. 1519, 103 L.Ed.2d 924 (1989);

ieeieiieimemieiensiiniitiaiiaaiiiidtaiasidiaitaaaiuiiaciiaaiallh

Caterpillar, Inc. v. Williams, 482 U.S. 386, 107 S.Ct. 2425, 96

L.Ed 2d 318 (1987). Moreover, Petitioner is no longer enti-

tled to review in this Court by way of a direct appeal. See

28 U.S.C. §1257(a). in the event this Court does not grant

certiorari, the federal constitutional question will have

escaped review by any federal court.

Even if Petitioner could initiate a §1983 case in fed-

eral court on the constitutional question, see Huffman v.

Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482

(1975), it appears that the Colorado state court’s deter-

mination of the federal constitutional claim might collat-

erally estop Petitioner from actually litigating the issue.

E.g., Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 441, 66

L.Ed.2d 308 (1980). As such, it is imperative that this

Court grant the Petition for Certiorari so that a federal

court will decide whether the Colorado Constitution is

repugnant to the United States Constitution.

C. THE COLORADO CONSTITUTION VIOLATES

THE TAKINGS CLAUSE BY ALLOWING CON-

DEMNATION OF PRIVATE PROPERTY FOR PRI-

VATE USE

The Takings Clause of the Fifth Amendment of the

United States Constitution, which provides that private

property shall not be taken for public use, without just

compensation, U.S. Const. amend. V, is made applicable

to the States through the Fourteenth Amendment. Dollan

v. City of Tigard, 512 U.S. ___, 114 S.Ct. 2309, 129 L.Ed.2d

304, 315 (1994).

10

The Fifth Amendment's Takings Clause prevents the

Legislature (and other government actors) from depriv-

ing private persons of vested property rights except for a

“public use” and only upon payment of “just compensa-

tion.” See Landgraf v. USI Film Products, 511 U.S. 244, 266,

114 S.Ct. 1483, 1497, 128 L.Ed.2d 229, 253 (1994); Hawaii

Housing Authority v. Midkiff, 467 U.S. 229, 241, 104 S.Ct.

2321, 2329, 81 L.Ed.2d 186, 197 (1984) (“one person’s

property may not be taken for the benefit of another

private person without a justifying public purpose, even

though compensation be naid.”).

While the Fourteenth Amendment itself contains no

independent “public use” requirement, that requirement

is also made binding on the States by incorporation of the

Fifth Amendment’s Eminent Domain Clause through the

Fourteenth Amendment’s Due Process Clause. Hawaii

Housing Authority v. Midkiff, 467 U.S. 229, 244, n.7, 104

S.Ct. 2321, 2331, n.7, 81 L.Ed.2d 186, 200, n. 7 (1984).

A “public use” or “public purpose” is therefore

required under the United States Constitution in private

condemnation cases. See, e.g., Bear Creek Development Corp.

v. Dyer, 790 P.2d 897 (Colo. App. 1990) (“We agree that

under the due process clause of the United States Consti-

tution a public use or purpose may be necessary for this

[private] condemnation [brought under Article II, §14 and

§38-1-101, C.R.S.]”).

However, in one of the earliest decisions on the sub-

ject, the Colorado Supreme Court observed that the Colo-

rado Constitution “is, in certain particulars, touching the

right to take private property for private use, exceptional;

and for certain enumerated uses changes the accepted

iieaitceeiiieaiinaaiaiitiaiiaiaiaiiiaiiinakt aaa

11

rule that the use to which private property may be con-

demned must be public.” Lamborn v. Bell, 18 Colo. 346,

349, 32 P. 989, 990 (1893) (emphasis added). The Colorado

Constitution, while perhaps “exceptional,” cannot change

the “public use” requirement imposed under the United

States Constitution. U.S. Const. art. VI cl. 2 (“This Consti-

tution . . . shall be the supreme Law of the Land; and the

Judges in every State shall be bound thereby, any Thing

in the Constitution or Laws of any State to the Contrary

notwithstanding.”). fea

There is little dispute that Colorado cannot constitu-

tionally authorize the taking of private property for a

strictly private purpose, even though compensation is

paid. Hawaii Housing Authority, 467 U.S. at 245, 104 S.Ct.

at 2331, 81 L.Ed.2d at 200 (“A purely private taking could

not withstand the scrutiny of the public use requirement;

it would serve no legitimate purpose of government and

would thus be void.”).

Respondent’s taking for the “most direct and conve-

nient” route so as to allow her to subdivide and commer-

cially develop her land does not serve a “public

purpose.” It serves only the private purposes and eco-

nomic gain of the Respondent.

In Brown v. McAnally, 97 Wash.2d 360, 644 P.2d 1153

(1982), the plaintiffs owned 28.9 acres of land which they

desired to have platted into 44 residential lots. However,

according to the plaintiffs, their property was landlocked.

Therefore, the plaintiffs sought to condemn a private way

of necessity to a public road under Washington’s Consti-

tution and enabling legislation. The trial court granted

the petition, and the Washington Supreme Court

12

reversed, noting that the trial court had mistakenly

assumed that the Washington Constitution and enabling

statute authorize condemnation of a private way for com-

mercial development purposes. Brown, 97 Wash.2d at 366,

644 P.2d at 1157. The Washington Supreme Court opined:

“Our research has revealed no case in this juris-

diction which has extended the concept of ‘pri-

vate ways of necessity’ for ingress and egress, to

rights of way for the future development of real

estate subdivisions.

* * *

“We have held, and continue to hold, that the

statute which gives a landlocked owner a way of

necessity over lands of a stranger is not favored

in law and thus must be construed strictly. It

must be borne in mind that [the enabling stat-

ute] authorizes a limited private condemnation

proceeding in which the private property rights

of one are taken for the benefit of another. The

taking is limited to necessary ingress and egress

and is not extended to those necessities that

may be created by the contemplation of a future

real estate subdivision development. There is,

after all, a constitutional right to the protection

of one’s property that must not be lightly

regarded or swept away merely to serve the

convenience or advantage of a stranger to the

property.”

Brown, 97 Wash.2d at 370, 644 P.2d at 1159-1160 (emphasis

added).

Unlike Washington, Colorado has trampled upon the

constitutional rights of its property owners by allowing

one person to take their neighbor’s property because that

ee

13

property provides the most convenient and direct way of

access and to allow subdivision and development. Colo-

rado has gone too far.

For the preceding reasons, Petitioner respectfully

requests this Court to grant the within Petition for a Writ

of Certiorari.

DATED this 3rd day of November, 1998.

Respectfully submitted,

Craic A. WEINBERG

Counsel of Record

STevENS, LITTMAN &

Bippison, L.L.C.

250 Arapahoe, Suite 301

Boulder, Colorado 80302

(303) 443-6690

Counsel for Petitioner

App. 1

DISTRICT COURT, COUNTY OF GUNNISON,

STATE OF COLORADO

Case No. 94-CV-22

ORDER RE: DEFENDANT’S MOTION TO DISMISS

_COANTHA CHILDERS, Plaintiff-Petitioner,

Vs.

QUARTZ CREEK LAND COMPANY, a Colorado general

partnership,

Defendant-Respondent.

On November 16, 1994, a status conference was held

by telephone with plaintiff’s counsel and defendant's

counsel at the time, Karl Ranous. At that time it was

decided to set all matters requiring evidence at 10:00

A.M. on April 28, 1995, with the entire day reserved for

the hearing and for viewing the land. At that time there

was pending a motion to dismiss filed by the defendant.

The minute order entered after that status conference

neglected to state that all day was reserved and that all

evidentiary matters would be considered on April 28,

1995.

After this conference, new counsel, Andrew Littman,

took the place of Mr. Ranous. He filed a supplemental

motion to dismiss.

On April 28, a hearing was held. The Court ruled that

the supplemental motion to dismiss would be considered

and not stricken. Mr. Littman stated he thought the hear-

ing was only oral argument on the motions to dismiss

and he was unprepared to proceed on the entire case. The

App. 2

Court ruled that this was the hearing on the case and he

needed to proceed. Mr. Littman indicated he had one

witness, James Furey. Mr. Furey was located and did

testify. Plaintiff testified as did Brian Hanson and Greg

Gerkin. The Court toured the land with counsel.

Upon reflection, and reviewing the November 16,

1994 minute order, the Court has determined it should

reconsider its decision of April 28 as to the nature of the

hearing. Since the minute order stated it was only a

hearing on the motion to dismiss, defendant’s counsel

had some reason to not be prepared on other issues -

such as the necessity of the easement and whether plain-

tiff had engaged in good faith negotiations. Therefore,

defense counsel is given ten days to notify the Court if he

would like to present any additional evidence on issues

other than those in the motions to dismiss. If there is no

additional evidence, the Court will rule on all issues.

The Court denies the defendant’s motions to dismiss

for the following reasons. The original motion asserted

four grounds:

1) The petition names the wrong party as defendant; 2)

The petition fails to state a public purpose for the con-

demnation; 3) The petition fails to allege any necessity;

and 4) The petition fails to describe the use to be made of

the easement.

The amended petition names the correct defendant

and thus this ground is eliminated. The purpose stated is

to provide access from the county road system to a land-

locked parcel. As held in Bear Creek Development Corp. v.

Dyer, 290 P.2d 897 (Colo.App. 1990) access to property in

App. 3

the state serves a public purpose and is a sufficient pur-

pose under the statute and Constitution.

As to the third ground, plaintiff has alleged hertand—

is land-locked, that she has no legal access to the county

roads and has been unsuccessful in securing alternate

access. This is a sufficient allegation.

As to the fourth ground, Plaintiff seeks “a permanent

non-exclusive easement” and has attached a survey

showing the easement sought. This is a sufficient descrip-

tion of the use intended.

In defendant's supplemental motion, a number of

other grounds are alleged. The first one is that plaintiff

knew there was no access when she bought the land and

is thus barred from bringing this action. The evidence

showed that the plaintiff knew there was no deeded

access. However, she believed she had a right-of-way by

adverse use or prescription. Indeed, after she acquired

the land, she filed suit, unsuccessfully, to obtain an ease-

ment by adverse possession. It is thus not true that plain-

tiff knew there was no access when she bought the land.

Even if she did know it, it is not clear that she should lose

this suit.

Defendant quotes some dicta from Coquina Oil Corp. v.

Harry Kourlis Ranch, 643 P.2d 519 (Colo. 1982) to bolster

its case. However, Coquina involved an entirely different

fact situation — a lessee suing for access. The dicta quoted

does not even directly support defendant’s position. If

defendant's position is upheld, there would be very few

private condemnation cases, since any purchaser is

deemed to have notice of the public records which would

App. 4

indicate whether there was deeded access to the land

when it was purchased.

The second new ground in the supplemental motion

is that plaintiff’s claim is barred by the statute of limita-

tions. For the reasons stated in plaintiff’s brief, the Court

does not believe the statute of limitations applies to this

type of case. Even it if [sic] did, it appears that the statute

would not start running until the adverse possession

action was terminated. This happened in 1992 and thus

would not be a bar to this action. The case cited by

defendant, Snell v. Ruppert, 541 P.2d 1042 (Wyo. 1975) to

support its position does not say what defendant claims

and indeed supports the plaintiff’s position. In Snell, a

subdivision was made fifty years prior to the action being

brought. The Court said that there was a statute of limita-

tions problems [sic] for a common law way of necessity

claim (not the condemnation claim). However, the con-

demnation action was allowed even though fifty years

had passed since the subdivision had been made.

The third new ground in the supplemental motion is

that the plaintiff must prove the use is for “agricultural,

mining, milling, domestic, or sanitary purposes.” Defen-

dant argues that the Constitution (Article II, Section 16)

mandates this and the statute implementing the Constitu-

tion, 38-1-102, C.R.S., is unconstitutional. This argument

has been addressed and decided against defendant’s

position in Crystal Park Co. v. Morton, 146 P. 566 (Colo.

1915). This ruling was confirmed in State Dept. of High-

ways v. Denver and Rio Grande Western Railroad Co., 789

P.2d 1088 (Colo. 1990) and Coquina Oil, supra.

App. 5

The fourth new ground in the supplemental motion

is that plaintiff lacks standing to bring this action. Plain-

tiff is the fee owner of a land-locked parcel and has

standing. Defendant essentially repeats its arguments

here that plaintiff has no deeded access and knew it and

therefore can’t sue. This was addressed previously in this

decision.

In summary, the motion to dismiss and supplemental

motion to dismiss are denied. The defendant has ten days

to notify the Court if it wishes to present other evidence

on the remaining issues.

Dated this 10th day of May, 1995.

By the Court:

/s/ David C. Johnston

David C. Johnston

District Judge

DCJ:elr

xc: Ostrander, Littman

App. 6

Coantha CHILDERS, Plaintiff-Appellee,

v.

QUARTZ CREEK LAND COMPANY,

a Colorado general partnership,

Defendant-Appellant.

No. 96CA0075.

Colorado Court of Appeals,

Div. I.

Feb. 20, 1997.

As Modified on Denial of Rehearing

May 1, 1997.

Certiorari Granted Nov. 10, 1997.

Duncan, Ostrander & Dingess, P.C., Donald M.

Ostrander, Denver, for Plaintiff-Appellee.

Stevens, Littman & Biddison, LLC, Craig A. Wein-

berg, Andrew C. Littman, Boulder, for Defendant-Appel-

lant.

Opinion by Judge METZGER.

In this private condemnation action brought by

plaintiff, Coantha Childers (Childers), seeking to provide

access to certain landlocked real property located in Gun-

nison County, Colorado, defendant, Quartz Creek Land

Company (Quartz Creek), appeals the judgment granting

plaintiff’s request. We affirm and remand the cause with

directions.

In 1988, Childers purchased approximately 160 acres

of land from her grandfather’s estate. The property had

been in the Childers family for several decades and was

App. 7

adjacent to property owned by Quartz Creek. At the time

of purchase, Childers was aware that the property was

“landlocked” in that there was no readily available,

deeded access to a public road, street, or highway.

In 1994, Childers filed a petition in condemnation for

a private way of necessity under the authority of

§ 38-1-101, et seq., C.R.S. (1982 Repl.Vol. 16A) and Colo.

Const. art. II, § 14, requesting a condemnation of a right-

of-way over Quartz Creek’s property to provide access to

a county road. Quartz Creek moved to dismiss, and the

trial court denied the motion, finding that Childers satis-

fied the requirements necessary for such a condemnation

under § 38-1-101. Thereafter, a jury trial was held to

determine the value of the condemned property rights.

After the jury trial, Quartz Creek brought this appeal

challenging, among other things, the constitutionality of

§ 38-1-102(3), C.R.S. (1982 Repl.Vol. 16A) as applied.

I.

Quartz Creek first contends that § 38-1-102(3) is

unconstitutional as applied to the facts of this case.

Section 38-1-102(3) provides:

Under the provisions of this section, private

property may be taken for private use, for pri-

vate ways of necessity, and for reservoirs,

drains, flumes, or ditches on or across the lands

of others for agricultural, mining, milling,

domestic, or sanitary purposes.

This statutory language is substantially similar to Colo.

Const. art. II, § 14, which reads:

App. 8

Private property shall not be taken for private

use unless by consent of the owner, except for

private ways of necessity, and except for reser-

voirs, drains, flumes or ditches on or across the

lands of others, for agricultural, mining, milling,

domestic or sanitary purposes.

See Coquina Oil Corp. v. Harry Kourlis Ranch, 643 P.2d 519

(Colo.1982) (footnote 2).

Quartz Creek’s chief contention is that the Colorado

constitutional provision requires the consent of a bur-

dened property owner except for private ways of neces-

sity used exclusively for agricultural, mining, milling,

domestic, or sanitary purposes. Quartz Creek contended

at trial that Childers’ plans to subdivide the landlocked

property into four residential lots does not meet any of

the underlying constitutional criteria and, therefore, the

trial court erred in applying the legislative enactment of

this constitutional provision in granting Childers the pri-

vate way of necessity in dispute.

Specifically, Quartz Creek argues that the statute may

be read to permit a private way of necessity for any

purpose and is in direct contradiction to the Colorado

Constitution which, according to Quartz Creek’s inter-

pretation, limits private ways of necessity to agricultural,

mining, milling, domestic, or sanitary purposes only. We

disagree.

The decision in Crystal Park Co. v. Morton, 27

Colo.App. 74, 146 P. 566 (1915) interpreted the constitu-

tional provision and the relevant statutory provisions in

effect at that time. The Crystal Park court engaged in a

detailed analysis of the legislative history of the constitu-

tional provision in order to determine whether a private

EE EN a Oe CS eRe

App. 9

way of necessity could be granted for any purpose or

whether such action could only be taken for the purposes

enumerated in the constitution.

Relying on the natural import of the language used,

the court found that the writers of the Colorado Constitu-

tion attached the limitation of necessity to the taking of

private property for private roadways while at the same

time refusing to limit the taking of private property for

reservoirs, ditches, agricultural uses, etc. The court speci-

fically stated: “We think that the Legislature, in enacting

that section, [concerning private condemnation] did not

have in contemplation a road used only in connection

with the pursuit of agricultural, mining, milling, or... . ”

Crystal Park Co. v. Morton, supra, 27 Colo.App. at 86, 146 P.

at 571.

Quartz Creek places great emphasis on the fact that

the Crystal Park court reviewed constitutional language

which did not contain a comma after the word “others”

and that this anomaly significantly altered the court’s

analysis. However, a thorough reading of the Crystal Park

decision shows that the court did more than a cursory

grammatical review of the constitutional provision, and

conducted an extensive analysis of the legislative and

constitutional convention history.

Moreover, the Crystal Park court's interpretation of

this constitutional language has been reaffirmed in West

v. Hinksmon, 857 P.2d 483 (Colo.App.1992) (private way of

xecessity includes ways for reasonable and practical

access to property otherwise isolated); Bear Creek Develop-

ment Corp. v. Dyer, 790 P.2d 897 (Colo.App.1990) (private

App. 10

way of necessity granted for access to parcel used for

operation of telecommunications tower).

Consequently, we decline to reconsider the Crystal

Park holding and affirm the trial court’s application of

§ 38-1-102(3).

We note, however, that, pursuant to the decision in

Bear Creek Development Corp. v. The Genesee Foundation, 919

P.2d 948 (Colo.App. 1996), the easement should reflect the

potential for termination of the way of necessity if and

when another access route is established to serve the

property interests that exist at that time. Thus, we

remand the cause for an appropriate amendment to the

judgement.

Il.

Quartz Creek next contends that Childers’ claim for

private condemnation was barred by the statute of limita-

tions. We disagree.

Quartz Creek bases its argument on § 38-41-101(1),

C.R.S. (1982 Repl.Vol. 16A), commonly known as the

“adverse possession statute,” which states:

No person shall commence or maintain an

‘action ... to enforce or establish any right or

interest of or to real property or make an entry

thereon unless commenced within eighteen

years after the right to bring such action or

make such entry has first accrued... .

Essentially, Quartz Creek asserts that Childers, and

her predecessors in interest, are barred from bringing the

private condemnation claim because they have had

App. 11

knowledge for more than 18 years that the property was

“landlocked.” We are not persuaded.

Generally, the limitation on actions set forth in the

adverse possession statute may be “asserted either affir-

matively or by way of defense and may be used in any

action as a source of or as a means to establish title or the

right of possession or as an aid or explanation of title.”

Section 38-41-113, C.R.S. (1982 Repl.Vol. 16A).

When §§ 38-41-101(1) and 38-41-113 are read

together, it becomes clear that the time periods contem-

plated by the adver. possession statute may be used

either negatively to defeat an adverse possession claim or

positively to assert title to property which has been held

for the applicable period. The adverse possession statute

allows for the establishment of a property right but, once

that right has been established, the statute does not limit

the exercise of that right. Therefore, an individual who

has held property adversely for more than 18 years may

still bring an action to perfect title to that property after

the statutory period has passed. Likewise, landowners

have an existing claim of right to bring a condemnation

action as long as they hold title to the benefitted property.

See Colorado Mountain Properties, Inc. v. Heineman, 860 P.2d

1388 (Colo.App.1993) (declining to award damages based

on delay in bringing condemnation action); see also Wag-

ner v. Fatrlamb, 151 Colo. 481, 379 P.2d 165 (1963) (con-

cluding that a landowner’s right to enforce a private way

of necessity over property previously held under unity of

title could not be extinguished by laches).

Finally, Quartz Creek’s interpretation of the adverse

possession statute would lead to the absurd result of

App. 12

landlocking property in perpetuity if the initial owner of

such parcel does not bring a condemnation action within

the statutory period. Such a result is contrary to the

public policy of the state.

Ill.

Finally, Quartz Creek contends the trial court erred in

permitting Childers to amend the condemnation petition

on the eve of trial. After a review of the record, we

disagree.

The record clearly shows that Childers’ amendment

to the petition significantly improved Quartz Creek’s

rights under the easement over those encompassed in the

original condemnation petition and that such changes did

not adversely affect any valuation placed on the con-

demned property.

The judgement is affirmed and the cause remanded

for amendment of the judgement consistent with the

views expressed 1: this opinion.

NEY and CASEBOLT, JJ., concur.

App. 13

SUPREME COURT, STATE OF COLORADO

CASE NO. 97SC414

CERTIORARI TO THE COLORADO COURT OF

APPEALS, 96CA0075

DISTRICT COURT, GUNNISON COUNTY, 94CV22

ORDER OF COURT

(Filed Nov. 10, 1997)

QUARTZ CREEK LAND COMPANY, a Colorado

general partnership,

Petitioner,

Vv.

COANTHA CHILDERS,

Respondent.

Upon consideration of the Petition for Writ of Cer-

tiorari filed in the above cause, and now being suffi-

ciently advised in the premises,

IT IS THIS DAY ORDERED that said Petition shall be,

and the same hereby is, GRANTED as to the issues set

forth below, and the briefs shall be filed as follows:

(a) Petitioner's Opening Brief shall be filed

within forty days from this date;

(b) Respondent’s Answer Brief shall be filed

within thirty days from receipt of the

Opening Brief;

(c) Petitioner’s Reply Brief may be filed within

fourteen days from receipt of the Answer

Brief.

App. 14

Pursuant to C.A.R. 54(a), the record on file will be

treated as though sent up in response to a formal writ.

The issues as announced by the Court this day are as

follows:

Whether § 38-1-102(3), 16A C.R.S. (1982), which autho-

rizes the taking of private property for all “private way of

necessity” is unconstitutional! because Article II, Section

14, of the Colorado Constitution limits such takings for

agricultural, mining, milling, domestic, or sanitary pur-

poses.

Whether a private person’s claim to take private property

under § 38-1-102(3), 16A C.R.S. (1982), and Article II,

Section 14, of the Colorado Constitution, for access to

landlocked property satisfies the “public purpose”

requirement of the United States Constitution.

DENIED AS TO ALL OTHER ISSUES.

BY THE COURT, EN BANC, NOVEMBER 10, 1997.

[SEAL]

OG:

Craig A. Weinberg

Andrew C. Littman

STEVENS, LITTMAN & BIDDISON, LLC

250 Arapahoe, #301

Boulder, CO 80302

Donald M. Ostrander

J. Andrew Ausmus

7800 E. Union Avenue, #200

Denver, CO 80237

App. 15

Honorable David C. Johnston

Gunnison County Courthouse

200 E. Virginia Avenue

Gunnison, CO 81230

Clerk of the District Court

Gunnison County Courthouse

200 E. Virginia Avenue

Gunnison, CO 81230

Patrick H. Stanford, Clerk

Colorado Court of Appeals

App. 16

SUPREME COURT, STATE OF COLORADO

CASE NO. 97SC414

CERTIORARI TO THE COLORADO COURT

OF APPEALS, 96CA0075

DISTRICT COURT, GUNNISON COUNTY, 94CV22

ORDER OF COURT

(Filed June 30, 1998)

QUARTZ CREEK LAND COMPANY, a Colorado

general partnership,

Petitioner,

V.

COANTHA CHILDERS,

Respondent.

Upon consideration of the Record on Appeal,

together with the Written and oral Arguments of Counsel,

and now being sufficiently advised in the premises,

IT IS THIS DAY ORDERED that the Writ of Certiorari

heretofore granted be, and is, DENIED as having been

improvidently granted.

BY THE COURT, EN BANC, JUNE 25, 1998.

[SEAL]

ce:

Craig A. Weinberg

Andrew C. Littman

STEVENS, LITTMAN & BIDDISON, LLC

250 Arapahoe, #301

Boulder, CO 80302

App. 17

Donald M. Ostrander

1. Andrew Ausmus

Ronald E. VonLembke

7800 E. Union Avenue, #200

Denver, CO 80237

App. 18

SUPREME COURT, STATE OF COLORADO

CASE NO. 97SC414

CERTIORARI TO THE COLORADO COURT

OF APPEALS, 96CA0075

DISTRICT COURT, GUNNISON COUNTY, 94CV22

ORDER OF COURT

QUARTZ CREEK LAND COMPANY, a Colorado

general partnership,

Petitioner,

Vv.

COANTHA CHILDERS,

Respondent. ,

Upon consideration of the Petition for Rehearing of ;

Order Denying Certiorari as having been Improvidently

Granted filed in the above cause, and now being suffi- :

ciently advised in the premises, i

IT IS THIS DAY ORDERED that the Petition for

Rehearing shail be, and the same hereby is, DENIED.

[SEAL]

BY THE COURT, EN BANC, AUGUST 5, 1998.

JUSTICE KOURLIS would grant the Petition.

Cc:

Craig A. Weinberg

Andrew C. Littman

STEVENS, LITTMAN & BIDDISON, LLC

250 Arapahoe, #301

Boulder, CO 80302

App. 19

§ 38-1-102 PROPERTY - REAL AND PERSONAL

§ 38-1-102. Petition — contents — parties

(1) In all cases where the right to take private prop-

erty for public or private use without the owner’s consent

or the right to construct or maintain any railroad, spur or

side track, public road, toll road, ditch, bridge, ferry,

telegraph, flume, or other public or private work or

improvement which may damage property not actually

taken is conferred by general laws or special charter upon

any corporate or municipal authority, public body, officer

or agent, person, commissioner, or corporation and the

compensation to be paid for, in respect of property

sought to be appropriated or damaged for the purposes

mentioned, cannot be agreed upon by the parties inter-

ested; or, in case the owner of the property is incapable of

consenting, or his name or residence is unknown, or he is

a nonresident of the state, it is lawful for the party

authorized to take or damage the property so required to

apply to the judge of the district court where the property

or any party thereof is situate by filing with the clerk a

petition, setting forth, by reference, his authority in the

premises, the purpose for which said property is sought

to be taken or damaged, a description of the property, the

names of all persons interested as owners or otherwise, as

appearing of record, if known, or, if not known, stating

that fact, and praying such judge to cause the compensa-

tion to be paid to the owner to be assessed. If the pro-

ceedings seek to affect the property of persons under

guardianship, the guardians or conservators of persons

having conservators shall be made parties defendant.

Persons interested whose names are unknown may be

made parties defendant by the description of the

App. 20

unknown owners. In all such cases an affidavit shall be

filed by or on behalf of the petitioner, setting forth that

the names of such persons are unknown.

(2) Incases where the property is sought to be taken

or damaged by the state for the purpose of establishing,

operating, or maintaining any state house or charitable or

other state institution or improvement, the petition shall

be signed by the governor or such other person as he

directs or as is provided by law.

(3) Under the provisions of this section, private

property may be taken for private use, for private ways

of necessity, and for reservoirs, drains, flumes, or ditches

on or across the lands of others for agricultural, mining,

milling, domestic, or senitary purposes.

Colorado Constitution § 14. Taking private property for

private use ae,

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.