Background

• Lewis seeks to condemn a private way of necessity across Glenelk to access his landlocked property for future development.
• Trial court dismissed petition due to lack of a concrete development plan showing scope and necessity of the easement.
• Colorado Court of Appeals reversed, suggesting condemnation could proceed if uses were consistent with zoning.
• Colorado Supreme Court holds the condemnor must show a concrete development purpose enabling the court to examine both scope and necessity.
• Record here failed to articulate a definite development plan or road width, so the trial court’s dismissal was correct.
• Remand instructed to address attorney fees after settling scope and necessity on remand.

Issues

Key Cases Cited

• Bly v. Story, 241 P.3d 529 (Colo.2010) (requires specific purpose in petition; necessity is a fact-bound inquiry)
• Coquina Oil Corp. v. Harry Kourlis Ranch, 643 P.2d 519 (Colo.1982) (private condemnation requires a present enforceable right to condemn)
• Crystal Park Co. v. Morton, 146 P.2d 566 (Colo.1915) (necessity is indispensable to practical use; scope must be defined)
• Bear Creek Dev. Corp. v. Genesee Found., 919 P.2d 948 (Colo.App.1996) (condemnation decree should carefully define easement scope to avoid disputes)
• Wright v. Horse Creek Ranches, 697 P.2d 384 (Colo.1985) (easement confers enforceable rights for specified purposes)
• Tieze v. Killam, 179 P.3d 10 (Colo.App.2007) (necessity proven by showing lack of feasible alternate route by preponderance of evidence)
• Shaklee v. Dist. Court, 636 P.2d 715 (Colo.1981) (consideration of public purpose before granting immediate possession in condemnation)
• Potashnik v. Pub. Serv. Co. of Colo., 126 Colo. 98 (Colo.1952) (possession and scope subject to statutory framework; necessity must be proved)
• Mortensen v. Mortensen, 135 Colo. 167 (Colo.1957) (cannot challenge feasibility of project to condemn on general grounds)
• Gibson v. Cann, 28 Colo. 499 (Colo.1901) (earlier restriction on condemnor's ability to condemn)