CITY OF NORTHGLENN, Cоlorado, Petitioner/Cross-Respondent, v. Jack J. GRYNBERG, Respondent/Cross-Petitioner.
No. 91SC767
Supreme Court of Colorado, En Banc
Feb. 16, 1993
As Modified March 8, 1993.
846 P.2d 175
VI.
The court of appeals opinion is affirmed in part, reversed in part, and the case is remanded for further proceedings consistent with this opinion.
ERICKSON, MULLARKEY and SCOTT, JJ., do not participate.
Phillip D. Barber, Keith D. Tooley, Welborn Dufford Brown & Tooley, P.C., Denver, for respondent/cross-petitioner.
Patricia L. Wells, Henry C. Teigen, Casey S. Funk, Asst. City Attys., Denver, for amicus curiae the City and County of Denver acting by and through its Board of Water Com‘rs.
Kathleen E. Haddock, Denver, for amici curiae Colorado Mun. League and the City and County of Denver acting by and through its Board of Water Com‘rs.
Peter J. Wall, John D. Amen, Burns, Wall, Smith and Mueller, P.C., Denver, for amicus curiae Independent Petroleum Ass‘n of Mountain States.
Justice MULLARKEY delivered the opinion of the Court.
We issued a writ of certiorari to review the court of appeals decision in Grynberg v. Northglenn, 829 P.2d 473 (Colo.App. 1991) (Grynberg II), affirming an inverse condemnation judgment in favor of the plaintiff, Jack J. Grynberg, against the defendant, the City of Northglenn, which constructed a 6,000 acre-foot wastewater reservoir on land overlying part of Grynberg‘s mineral lease. The trial court found that Grynberg‘s property had been taken or damaged, and a jury of freeholders awarded him $646,930, plus interest, costs and attorney fees for a total of $862,155.05.
This action is before this court for the second time. In Grynberg v. City of Northglenn, 739 P.2d 230 (Colo.1987) (Grynberg I), we held that Grynberg had a claim for geophysical trespass against the City of Northglenn for a test hole that Northglenn drilled into Grynberg‘s mineral estate in preparation for Northglenn‘s construction of the reservoir. We remanded the case to the trial court to develop a record and to consider affirmative defenses, such as governmental immunity.
On remand, Grynberg abandoned his tort claims, including the geophysical trespass claim, and proceeded on a theory of inverse condemnation. Pursuant to
I.
The facts as developed at trial after remand are essentially the same as those detailed in our previous opinion. See Grynberg I, 739 P.2d at 232-33. Other relevant facts will be described as appropriate in this opinion.
After remand, the trial court dismissed thе tort claims against Northglenn. Grynberg elected to abandon his tort claims1 and successfully proceeded on a theory of inverse condemnation. Northglenn appealed the verdict, which was affirmed by the court of appeals in Grynberg II, 829 P.2d 473. We granted Northglenn‘s petition for writ of certiorari on two issues: (1) whether the court of appeals erred in holding that the inability to mine under the reservoir and its embankment, the drilling of test holes, and the filing of a report constitute a taking within the meaning of
II.
Okay this is a road we travelled down a number of times in the course of this, and it is somewhat comforting to know that whatever I decide here, I‘m sure I will not be the last word on the subject. If we had a scale of zero to ten and zero meant I was sure I was wrong and ten meant I was sure I was right, we would be at a point of about 5.1 on that scale, and perhaps 5.01 as to what I‘m going to do.
The facts that developed at trial, relative to the issue of whether a taking or damaging has occurred, were undisputed.3 Under these circumstances we will first determine the applicable legal standard and then apply that standard to determine whether a constitutional taking or damaging has occurred. People ex rel. Woodard v. Colorado Springs Bd. of Realtors, Inc., 692 P.2d 1055, 1063 (Colo.1984) (appellate court may apply proper legal standard to uncontroverted facts).
Ownership of the surface and mineral estates of the land at issue was severed at some time prior to the relevant events in this case. As part of his business exploring and prospecting for minerals, Grynberg leased the right to explore for coal in Section 36 (640 acres of land) for $640 per year from the State of Colorado which owned the mineral estate. He bought the coal lease from the state with the hope of selling all or some of the rights to explore and mine coal from the leasehold, or to mine the leasehold himself. Although Northglenn purchased the surface estate from the previous owner, it did not purchase or seek to condemn the mineral estate.
A taking occurs when an entity clothed with the power of eminent domain substantially deprives a property owner of the use and enjoyment of that property. See Lucas v. South Carolina Coastal Council, — U.S. —, —, 112 S.Ct. 2886, 2895, 120 L.Ed.2d 798 (1992) (when owner called upon to sacrifice all economically beneficial uses of real property to the common good, owner has suffered a taking). See also Lipson v. Colorado State Dep‘t of Highways, 41 Colo.App. 568, 569, 588 P.2d 390, 391 (1978) (quoting City of Buffalo v. J.W. Clement Co., 28 N.Y.2d 241, 321 N.Y.S.2d 345, 269 N.E.2d 895 (1971)) (requirements for a de facto taking are “a physical entry by the condemnor, a physical ouster of the owner, a legal interference with the physical use, possession or enjoyment of the property or a legal interference with the owner‘s power of disposi-
It has been said that by including damaging in the just compensation provision, the Colorado Constitution affords an aggrieved property owner a greater measure of protection than does the Constitution of the United States. Mosher v. City of Boulder, 225 F.Supp. 32, 35 (D.Colo. 1964). Even without a “damage” provision in the relevant constitution or statute, the takings clause has been interpreted to compensate a property owner for incidental injury to the remainder of the property caused by a taking of some but not all of the property. La Plata Elec. Ass‘n, Inc. v. Cummins, 728 P.2d 696, 698 (Colo.1986);4 see also 4A Julius L. Sackman, Patrick J. Rohan, Nichols on Eminent Domain § 14.02[1] аt 14-29 (1993). For example, under a pure takings clause (such as that in the United States Constitution), no compensation would be due to a property owner for injury caused by a highway built on property immediately adjacent to a property owner‘s land, while an owner who had only a minuscule portion of his or her property taken for such a highway would be due compensation. Such a result may well be inequitable, see La Plata Electric at 705 (Rovira, J., dissenting), but the same result would be reached if a private landowner built an improvement at the boundary of his or her property. The intent of including the word “damaged” in the constitution was to grant relief to property owners who had been substantially damaged by the making of such public improvements abutting their lands, but whose land had not been physically taken by the government. See City of Pueblo v. Strait, 20 Colo. 13, 18, 36 P. 789, 791 (1894).
Most of this court‘s cases construing this provision of our constitution have dealt with governmental obstruction of ingress and egress to property, see, e.g., id. (building of a viaduct eight feet above a public street); State Dept. of Highways v. Interstate-Denver West, 791 P.2d 1119 (Colo. 1990) (one of two access points to public streets taken by condemnation); Troiano v. Colorado Dept. of Highways, 170 Colo. 484, 463 P.2d 448 (1969) (building of Interstate 70), or extraordinary changes in the use of a street. Denver Circle R.R. Co. v. Nestor, 10 Colo. 403, 15 P. 714 (1887) (building a steam railroad in public street); City of Denver v. Bayer, 7 Colo. 113, 2 P. 6 (1883) (same). See also Game and Fish Comm‘n v. Farmers Irrigation Co., 149 Colo. 318, 369 P.2d 557 (1962) (release of pollution from a fish hatchery, polluting domestic water supply of downstream users, states a claim for a “damaging” of private property for public use).
To recover in a damaging case, then, the owner must show a unique or special injury which is different in kind from, or not common to, the general public. The damage must be to the property or its appurtenances, or it must affect some right or interest which the owner enjoys in connection with the property and which is not shared with or enjoyed by the public generally. In no case has mere depreciation in value been grounds to award just compensation for a damaging of property. In none of our previous cases have we held the acquisition of an already-severed surface estate, or preliminary site preparation activities, or the mere filing of a report, without more, to be sufficient for recovery for a “damaging” of property for the purposes of
We refuse to reconsider the long-standing construction of this constitutional provision that compensation is not due to a property owner merely if that person‘s property value is depreciated by government action. In light of the judicial abrogation of governmental and sovereign im-
III.
Grynberg alleges that, by the following actions, Northglenn has taken or damaged his coal lease: (1) the acquisition of the surface estate over his coal lease; (2) the drilling of one 600-foot core hole by Northglenn‘s contractor Chen and Associates, Inc. (Chen) as part of a geotechnical engineering survey of the parcel; and (3) the publishing of the Chen report stating that there were no commercially exploitable coal reserves in Grynberg‘s coal lease. We will discuss each contention with respect to Grynberg‘s taking claim and then consider his damaging claim.
A.
Grynberg first argues that Northglenn took Grynberg‘s property by the acquisition of the surface estate for the west half of Section 36. Grynberg argues that our holding in William E. Russell Coal Co. v. Board of County Comm‘rs, 129 Colo. 330, 270 P.2d 772 (1954), controls this question, and that, therefore, Northglenn‘s acquisition of the surface estate amounts to a taking. While we agree that Russell Coal is a controlling case, we do not agree that there was any taking here.
In Russell Coal, the Board of Commissioners of Boulder County and the State Highway Department condemned only the surface estate of property which, along with the mineral estate, belonged to a coal mining company. The coal company argued that there had been a taking of its mineral estate because: this condemnation severed the surface estate from the mineral estate; the subjacent support required by the surface estate so as not to cause subsidence would not allow the company to mine certain of the coal in place; and the cost would be greater to mine the coal that it could extract. Id. at 334-35, 270 P.2d at 773-774. The highway department argued that it did not seek to acquire subjacent support for its highway right-of-way, and would waive or release this right. We held that, because the mining company legally owed the highway department this duty of subjacent support, and the highway department could not waive this right, which was for the benefit of the public in general, the coal company was entitled to just compensation for the servitude placed on its remaining property, i.e., the mineral estate, which was not taken by eminent domain. Id. at 335-36, 270 P.2d at 775.6
Here, however, the surface and mineral estates had been severed before either
Furthermore, even assuming that construction of the reservoir on the surface estate affected the duty of access of the mineral estate owner or made that owner unable to mine the coal lying at a certain depth under the reservoir and the embankment, this question is not before the court. By the time Northglenn began site preparation for the reservoir, Grynberg had conveyed the mineral lease to his wife who is not a party to this action.
B.
Grynberg next argues that a taking was effected by Northglenn‘s unauthorized drilling of a 600-foot test hole to determine if there were commercially ex-
Initially we note that the drilling of the test hole in аnd of itself does not effect a taking. Although the digging of the test hole was a physical invasion of Grynberg‘s real property, it did not rise to the level of a taking. A taking can be effected by a legal interference with the physical use, possession, enjoyment, or disposition of property, or by acts which translate to an exercise of dominion and control by a governmental entity. Lipson v. State Dep‘t of Highways, 41 Colo.App. 568, 568, 588 P.2d 390, 391-92 (1978). The drilling itself did not interfere with Grynberg‘s use, possession, enjoyment, or disposition of his coal lease. The drilling of the test hole, a single, transitory physical invasion of Grynberg‘s coal lease, does not translate to an exercise of dominion and control of the coal lease. See Puryear v. Red River Auth. of Texas, 383 S.W.2d 818 (Tex.Civ.App.1964) (core drilling without authorization held not a taking).
While the drilling itself clearly does not effect a taking, the information derived from that drilling presents a more complex question. An owner of mineral rights has a property interest in the proprietary information which can be gathered by way of geophysical exploration of his or her land. Grynberg I, 739 P.2d at 236-37. See Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1001-04, 104 S.Ct. 2862, 2872-74, 81 L.Ed.2d 815 (1984) (owner of tradе secret has property right, protected by the Fifth Amendment, in that trade secret). Much of the value of an unexplored coal lease is that information regarding the coal is unknown. An owner, who may not have the wherewithal to mine or to explore for minerals, may be able to make a substantial profit by selling an option to mine the minerals to someone who does possess the resources to explore or mine the minerals.10 Grynberg I at 237 (quoting Layne Louisiana Co. v. Superior Oil Co., 209 La. 1014, 26 So.2d 20, 22 (1946)). This presupposes, however, that the property owner has exclusive or near-exclusive access to the mineral information.
Here, Grynberg never had exclusive or near-exclusive access to information about the geological conditions including minerals under Section 36. Section 36 is part of the Boulder-Weld coalfield, which has been mined since the Civil War. In 1966, the United States Bureau of Mines published a report entitled Analysis of the Coal Industry in Boulder-Weld Coalfield, Colorado. This report included an isopach or equal-thickness contour map showing estimated coal thicknesses in the Boulder-Weld coalfield; the coal thickness in Section 36 is shown as 2.5 feet or less.11 A defense expert, whose testimony was not contradicted, stated that the United States Geological Survey (USGS) established a
In Ruckelshaus v. Monsanto Co., 467 U.S. 986, 104 S.Ct. 2862, 81 L.Ed.2d 815 (1984), the Court held that trade secrets15 are property entitled to protection under the Fifth Amendment‘s Takings Clause. Id. at 1003-04, 104 S.Ct. at 2873. The Court explained that
[b]ecause of the intangible nature of a trade secret, the extent of the property right therein is defined by the extent to which the owner of the secret protects his interest from disclosure to others. Information that is public knowledge or that is generally known in an industry cannot be a trade secret. If an individual discloses his trade secret to others who are under no obligation to protect the confidentiality of the information, or otherwise publicly discloses the secret, his property right is extinguished.
[citations omitted]. Id. at 1002, 104 S.Ct. at 2872. “Once the data that constitute a trade secret are disclosed to others, or others are allowed to use those data, the holder of the trade secret has lost his property interest in the data.” Id. at 1011, 104 S.Ct. at 2877.
The record does not indicate that the Chen drilling log data contained any information different in kind from the drilling logs from the previous exploration holes or from other publicly available information. Robert L. Sprinkel, Jr., a defense expert geologist with almost sixty years of experience in mineral evaluation, testified that, using the information available in 1966, he would have estimated that the sub-economic coal resources in Section 36 totalled about 35,000 tons. A sub-economic resource refers to a coal bed 2.5 to 5 feet
Thus, the conclusion reached by the Chen report that coal mining under Section 36 was not commercially feasible was not based on proprietary or secret information gained as a result of the exploratory hole drilled by Chen in Section 36. The same basic information was contained in thе Bureau of Mines report, as well as the USGS and Coors drilling logs, and Grynberg has failed to prove that the Chen report infringed on a trade secret or on otherwise exclusive proprietary information.17
C.
Grynberg‘s third argument is that the filing of the Chen report constitutes a taking. We do not agree.
As an initial matter, the court of appeals previously has held that “the mere announcement of impending condemnations, coupled as it may well be with substantial delay and damage, does not, in the absence of the acts which may be translated into an exercise of dominion and control by the condemning authority, constitute a taking so as to warrant awarding compensation.” Lipson v. State Dep‘t of Highways, 41 Colo.App. 568, 570, 588 P.2d 390, 391-92 (1978) (emphasis in original). Similarly, the mere publication of a report that states that a leaseholder‘s leased property does not have commercially exploitable coal reserves is not, by itself, a taking of property. Second, as explained above, we conclude that the information in the Chen report was not proрrietary information, and therefore disclosure of such information cannot be a taking of a trade secret.18 Therefore, Grynberg‘s only remaining complaint about the Chen report is that it was not accurate.19 To the extent that Grynberg has a claim based on the inaccuracy of the Chen report, such a claim lies in tort or could lie in tort. Desert Truck Sales v. Denver, 837 P.2d 759, 765 (Colo. 1992). The State of Colorado and its political subdivisions have not waived sovereign immunity for such a claim.20
D.
Finally, we determine that Grynberg has not made out a case showing a
Furthermore, there is no evidence that Northglenn obstructed Grynberg‘s ingress or egress to his property. There is no evidence that Northglenn‘s acts affected a right or interest he enjoyed in connection with his property which is not shared with or enjoyed by the public generally. In other words, the law of constitutional damagings does not apply to the undisputed facts of this case.
IV.
We conclude that Grynberg did not prove a taking or damaging of his property pursuant to
ERICKSON, J., specially concurs in the result and KIRSHBAUM, J., joins the special concurrence.
SCOTT, J., does not participate.
Justice ERICKSON Specially concurring in the result:
I agree that in this case, private property was not unconstitutionally taken or damaged under
I
In 1977, the City of Northglenn began a search for potential sites for a wastewater reservoir which would become part of a comprehensive wastewater treatment project.1 One of the ten potential sites selected was the West half of Section 36, Township 1 North, Range 68 West of the 6th P.M. in Weld County, Colorado (the site). The mineral estate of the site had been severed from the surface estate and was owned by the State of Colorado, which issued a coal lease to Jack Grynberg.
By February 1978, Northglenn had selected the site as the best location for the reservoir. Northglenn began negotiations with the surface owner to acquire the reservoir site and subsequently announced publicly that the site had been selected for the reservoir.
Northglenn obtained permission from the surface owner to drill test holes on the site to assess the suitability of the site for construction of the reservoir, but did not obtain the permission of either the State of Colorado or Grynberg. An engineering consultant prepared a geology and soils investigation report based on the information obtained from the drilling and filed the
On June 1, 1978, Northglenn purchased the surface estate for $609,000. Grynberg assigned his coal lease to his wife on March 3, 1980. In November 1980, Grynberg brought suit against Northglenn asserting numerous claims for relief, including an inverse condemnation claim. Not until March 1981, did Northglenn begin actual construction of the reservoir on the site.
II
The question in this case is whether property was unconstitutionally taken or damaged prior to the assignment of the coal lease by Grynberg to his wife. The two procedural devices for guaranteeing that private property will nоt be unconstitutionally taken or damaged for public use without just compensation are eminent domain and inverse condemnation.
While a public entity seeks to condemn property and pay just compensation in an eminent domain action, a property owner must commence an inverse condemnation action. United States v. Clarke, 445 U.S. 253, 257, 100 S.Ct. 1127, 1130, 63 L.Ed.2d 373 (1980) (stating that inverse condemnation is a “shorthand description of the manner in which a landowner recovers just compensation for a taking of his property when condemnation proceedings have not been instituted“); State Dept. of Health v. The Mill, 809 P.2d 434, 437 (Colo.1991) (same). An inverse condemnation action often arises because the public entity has refused to exercise its eminent domain power. Morrison v. City of Aurora, 745 P.2d 1042, 1045 (Colo.App.1987) (noting that an inverse condemnation action is the taking of private property by a public entity which has refused to exercise its eminent domain power). In an inverse condemnation action, the property owner must establish that a taking or damage occurrеd, whereas in an eminent domain action, the condemning authority sets forth with specificity the property that is to be taken.
The difficult question in an inverse condemnation action is when the property is taken or damaged. In a physical taking case, the taking or damage “occurs” at a certain point and the unconstitutional taking or damage continues until the taking or damage ceases, or just compensation is paid. State Dept. of Health, 809 P.2d at 438. Under eminent domain, the taking or damage occurs contemporaneously with the institution of the condemnation proceedings. Because there is no “condemnation proceeding” in an inverse condemnation action, however, there is no one single uniform date at which the taking or damage “occurs.” Instead, in an inverse condemnation action, courts examine the question of whether the Taking Clause has been violated and then determine the date when the property was taken or damaged.2
III
A
In William E. Russell Coal Co. v. Board of County Comm‘rs, 129 Colo. 330, 270 P.2d 772 (1954), we addressed a similar claim in an action brought by the holder of a mineral estate for a violation of the Taking Clause. The public entity acquired the surface estate by condemnation in order to construct a road but did not condemn the mineral estate. The public entity essentially argued that it was not required to compensate the holder of the mineral estate because the road was not yet constructed and because it had acquired only the surface estate.
We disagreed and held that “when land is acquired by condemnation for a highway, the condemnor acquires not only what is understandably known as just the surface [but] whatever is necessary for the support of the surface.” Russell Coal, 129 Colo. at
We stated that “if a duty rests upon the owner of the mineral rights to preservе and support the highway by not having the benefit of his mineral property right, it then follows that he suffers a damage for which compensation should flow.” Id. at 334, 270 P.2d at 774 (emphasis added). The critical question in this case therefore is whether Grynberg lost the benefit of his property right prior to his assignment of the mineral estate to his wife.3
B
Two separate estates are created when the mineral rights are severed from the surface estate. See Simson v. Langholf, 133 Colo. 208, 215-17, 293 P.2d 302, 307 (1956). The majority recognizes that the owner of the severed mineral estate owes a duty of subjacent support to the surface estate in its natural state. Maj. op. at 180-181.4
However, the majority ignores the corresponding property rights that comprise a
Actionable constitutional damage occurs if a public entity deprives the owner of the mineral estate the benefit of his mineral property right. Russell Coal, 129 Colo. at 334, 270 P.2d at 774.7 In many cases, the date of construction on the surface estate will serve as the date of the taking or damage to the severed mineral estate. In my view, however, the holder of a mineral estate need not wait for construction to actually begin on the surface estate to bring an inverse condemnation action if he can establish that the public entity has deprived him of the benefit of his mineral property right.8
In this case, however, Grynberg was not prevented from asserting his rights in the mineral estate prior to the conveyance to his wife. See Chambers-Liberty, 453 S.W.2d at 137 (holding that until an interference with a property right occurs, the public entity is not required to pay compensation). Accordingly, I сoncur with the majority‘s conclusion that property was not unconstitutionally taken or damaged.9
I am authorized to say that Justice KIRSHBAUM joins in this special concurrence.
Notes
In fact, the language cited by the majority does not provide a standard for a taking, but instead states one test that courts use to determine whether a “de facto taking” has occurred. Both Lipson and City of Buffalo specifically addressed de facto taking arguments. However, Grynberg has not asserted that Northglenn‘s actions, culminating with the acquisition of the surface estate, constituted a de facto taking, nor does the majority address Grynberg‘s claims as a de facto taking.
The de facto taking issue poses difficult legal questions and courts have not uniformly addressed the requirements for a de facto taking. See, e.g., Foster v. City of Detroit, 254 F.Supp. 655 (E.D.Mich.1966) (finding that de facto taking did not require a physical invasion of property), aff‘d on other grounds, 405 F.2d 138 (8th Cir. 1968); In re Elmwood Park Project Section 1, Group B, 376 Mich. 311, 136 N.W.2d 896 (1965) (same); Conroy-Prugh Glass Co. v. Commonwealth, 456 Pa. 384, 321 A.2d 598 (Pa.1974) (de facto taking occurs when an entity clothed with the power of eminent domain substantially deprives an owner of the use and enjoyment of the property, but does not necessarily require a physical invasion). A de facto taking has also been described as follows:
If the prospective actual execution of a proposed municipal project will deprive the property owner of a beneficial use of his property by substantial impairment of some significant appurtenant right, and, as [a] result of advanced municipal publicity about the project plan and its consequences, the property loses its existent utility and financial viability to the point of subjecting the owner to losing the property, then a de facto taking must be deemed to have occurred.
Nichols § 12B.17[6], at 12B-229.
I would not reach the question of the scope or requirements of a de facto taking because this question has not been briefed or argued before this court. However, I note my disagreement with the majority‘s decision to equate the Lipson standard for a de facto taking to all taking analysis and the application of the standard to the facts of this case. In my view, the majority‘s reliance on the Lipson standard as the basis for its taking analysis, in a case where the de facto taking question has not been raised, is improper and inaccurate.
Where there has been a horizontal division of the land, the owner of the subjacent estate, coal or other mineral, owes to the superincumbent owner a right of support. This is an absolute right arising out of the ownership of the surface. Good or bad mining in no way affects the responsibility. What the surface owner has a right to demand is sufficient support, even, if to that end, it be necessary to leave every pound of coal untouched under his land.
Noonan, 50 A. at 256. The duty of subjacent support is owed only to the land in its natural condition. 6 American Law of Mining § 203.02[1], at 203-23 (2d ed. 1992); Roger A. Cunningham, et al., The Law of Property, § 7.4, at 420 (1984).
In this case, the trial court dismissed Grynberg‘s other claims for relief. Because Grynberg did not appeal the dismissal, I would not reach the issue of whether these actions were properly dismissed or are barred by the Governmental Immunity Act,
In fact, these questions are central to the determination of whether Northglenn deprived Grynberg of the benefit of his mineral property right and whether Grynberg can assert a constitutional claim for compensation. These questions necessarily must be answered to arrive at a conclusion that “Grynberg was not prevented from exploring or mining coal lying under the proposed site of the reservoir.” Id.
The holder of a mineral estate may have an actionable constitutional damage claim based on a depreciation in market value if the public entity has deprived him of the benefit of his mineral property right. The claim would arise as of the time of the deprivation. For example, a property owner would be entitled to compensation for a diminution in the value of the property based on a material and substantial impairment of the right to access. In my view, an assertion by the holder of a mineral estate that he was unable to mine his estate in the most reasonable, lowest-risk, and most cost-effective method because of the actions of the public entity would constitute an actionable constitutional claim, because it would substantially deprive him of the use and enjoyment of that property.
I agree that the owner must show a unique or special injury that is different in kind from or not common to the general public to recover in a “damage” case. Radinsky v. City & County of Denver, 159 Colo. 134, 138, 410 P.2d 644, 646 (1966). However, there is no absolute prerequisite of “some physical improvement or change of character” to establish an unconstitutional “damage.”
In my view, if Northglenn had deprived Grynberg of his right of access to the surface estate, Grynberg would have been able to establish a claim for an unconstitutional “damage.” In such a case, Grynberg would clearly suffer a unique or special injury (the deprivation of his right of access), despite the lack of physical improvement or change of character in the surface estate.
[T]he whole or any portion or phase of any scientific or technical information, design, process, procedure, formula, improvement, confidential business or financial information, listing of names, addresses, or telephone numbers, or other information relating to any business or profession which is secret and of value. To be a “trade secret” the owner thereof must have taken measures to prevent the secret from becoming available to persons other than those selected by the owner to have access thereto for limited purposes.