LA 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.
No. 85SC82.
Supreme Court of Colorado, En Banc.
Nov. 10, 1986.
As Modified on Denial of Rehearing Dec. 8, 1986.
728 P.2d 696
LOHR, Justice.
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 Ap
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
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
“Private property shall not be taken or damaged, for public or private use, without just compensation.”
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
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 Highways v. Davis, 42 Colo.App. 250, 251-52, 596 P.2d 400, 401 (1979). We reversed, and held that “[t]he same criteria must be used in both instances,” as “[a]ny other result would create serious problems of fairness to landowners similarly situated.” 626 P.2d at 665 (citing State Commissioner of Transportation v. Charles Investment Corp., 143 N.J. Super. 541, 363 A.2d 944 (1976)).
La Plata argues that the principles expounded in Troiano and in State Dept. of Highways v. Davis apply in the present context and that the property damage allegedly suffered by the Wagners is not different in kind from the adverse effect the power line has on all the other properties through which it passes or from which it can be seen. The court of appeals rejected La Plata‘s argument, but not on the ground that the general damage/special damage distinction did not apply. Rather, the court of appeals held that the reduction in property value attributable to the construction of the power line constituted special damages under the circumstances.
The trial court here, in ruling on admissibility, distinguished both of those cases (Troiano and DeRoos) from the present one in that the use to be made of the property taken here specifically and uniquely affects the remainder of respondents’ property. The powerline crosses the respondents’ property almost in the middle and the unsightliness or loss of view does not affect any other owner or the public in a general way.
The trial court held that evidence as to the adverse effect on the market value of the remainder caused by erection of the powerline was admissible. We agree. 703 P.2d at 594. The court of appeals then went on to “adopt” a rule followed in other states “specifically relating to power lines,” in which compensation is allowed “for loss of aesthetic value or view that results in loss of market value to the remainder.” Id. The court of appeals held
While we agree that the Wagners are entitled to compensation for the reduction in the market value of their remaining property, we decline to follow the court of appeals’ reasoning. Contrary to what is implied in the court of appeals’ opinion, the district court did not make a finding that La Plata‘s use of the Wagners’ property “specifically and uniquely affects the remainder of respondents’ property” or that because the power line crossed the property in the middle, “the unsightliness or loss of view does not affect any other owner or the public in a general way.” Moreover, it cannot be said that evidence in the record substantially supports the quoted statements. Without belaboring the point, we conclude that the very nature of a power line—which generally runs for some distance across or near various properties from which it can or must be seen—necessarily causes any adverse aesthetic effect of a power line to be experienced throughout the general community, except in special circumstances not present here. Although some property owners may suffer greater aesthetic harm or view impairment than others from the presence of the power line, this simply amounts to damage of a greater degree, not of a different kind.
Instead of adopting the approach taken by the court of appeals, we conclude that the general damage/special damage distinction has no validity in the present context, that is, when the reduction in property value results from a taking of a portion of the land held by the property owner. In such circumstances, we hold that a property owner should be compensated for all damages that are the natural, necessary and reasonable result of the taking. Mack v. Board of County Commissioners, 152 Colo. 300, 306-07, 381 P.2d 987, 990 (1963); Farmers’ Reservoir & Irrigation Co. v. Cooper, 54 Colo. 402, 407, 130 P. 1004, 1006 (1913). To the extent that Lavelle v. Town of Julesburg is to the contrary, we overrule it.
We adopt this rule for two reasons. First, it is supported by the decisions in a significant majority of the jurisdictions in this country that have considered these questions. Some of these authorities explicitly recognize a distinction between the assessment of compensation in the case of a partial taking—in which all damages that flow from that taking are compensable—and the assessment of compensation in the case of alleged damages when no land has been taken—in which only damages unique or special to the property are compensable. Others approve compensation, without sophisticated explanation, when the evidence establishes a reduction in the value of a remainder because of general aesthetic damage flowing from the construction of a public improvement on the portion taken.3
The result reached in State Dept. of Highways v. Davis is not inconsistent with the rule that we adopt today. In evaluating the compensability of impairment of access to a highway in that case, we declined to adopt the very distinction between instances involving a partial taking and those that do not that was the basis of the court of appeals’ opinion in Davis and that is central to our resolution of the present case. 626 P.2d at 665. In the present case, however, the damages to the remainder flow directly from the activities on the land condemned. In State Dept. of Highways v. Davis, the damages flowed from a decision of the condemning authority to limit access to a highway, which involved altering the landowners’ ability to use the land that adjoined their property.
This distinction has been recognized as important by a number of courts and commentators that have embraced the general rule we adopt here today. These authorities have recognized that in certain situations property owners may be entitled to
The regulation of access usually involves only the regulation of property adjoining the private landowners’ property, and the nature of the access issue does not change simply because a piece of the landowners’ property is also taken for use in the overall transportation scheme. We have consistently held that a property owner‘s access may be regulated under the police power without constituting a taking of property rights so long as there is not a “substantial impairment” of access. E.g., Shaklee v. Board of County Commissioners, 176 Colo. 559, 563-64, 491 P.2d 1366, 1367 (1972); Hayutin v. Colorado State Dept. of Highways, 175 Colo. 83, 88-89, 485 P.2d 896, 899 (1971); Troiano v. Colorado Dept. of Highways, 170 Colo. at 491, 495-97, 463 P.2d at 451, 453-54; Gayton v. Dept. of Highways, 149 Colo. at 75-78, 367 P.2d at 900-02. In Davis, it was simply fortuitous that some of the landowners’ property was required to create a traffic system that would limit access to the highway without substantially impairing the ability of property owners formerly possessing direct rights of access to obtain entry onto the highway. Under these circumstances, the limitation of access did not flow as a natural, necessary and reasonable result of the taking of the landowners’ property but was independent and separable from that taking. We believe that by viewing the issue in State Dept. of Highways v. Davis as one of whether the alteration of the use of adjoining property substantially interfered with the landowners’ access so as to constitute a taking of access rights and therefore require compensation, a correct and fair result was reached notwithstanding the fact that a mechanical application of the rule that we adopt today might suggest a tension between the two cases. See State Highway Commissioner v. Easley, 215 Va. 197, 207 S.E.2d 870, 874–75 (1974) (relied on by us in Davis and analyzing compensability of limitation of access to a highway in the same manner as Davis). See also Triangle, Inc. v. State of Alaska, 632 P.2d 965, 967-68 (Alaska 1981) (following Davis).
The judgment of the court of appeals is affirmed.
ROVIRA, J., dissents.
ERICKSON and VOLLACK, JJ., join in the dissent.
ROVIRA, Justice, dissenting:
The requirement that compensable damage to a property owner must be different in kind from injury suffered by the general public runs consistently through our prior case law on eminent domain. See, e.g., Troiano v. Colorado Dept. of Highways, 170 Colo. 484, 500, 463 P.2d 448, 455-56 (1969) (loss of view caused by construction on adjoining property held noncompensable); Lavelle v. Town of Julesburg, 49 Colo. 290, 112 P. 774 (1911) (condemnee denied recovery for injury to his remainder for annoyance and inconvenience suffered by the general public); Gilbert v. Greeley, S.L. & P. Ry. Co., 13 Colo. 501, 22 P. 814 (1889) (nonadjoining owner denied compensation for obstruction of public street by a railroad crossing). The majority now overrules Lavelle and holds that this requirement “has no validity ... when the reduction in property value results from a taking of a portion of land held by the property owner.” Majority op. at 700. It further concludes that this exception to the general damage/special damage distinction is not inconsistent with our holding in State Dep‘t of Highways v. Davis, 626 P.2d 661 (1981). Majority op. at 701. I cannot agree, for I see no justification for overruling Lavelle and no way in which today‘s holding can be reconciled with Davis. Moreover, I believe the result reached by the majority, and applied today in this case, Bement v. Empire Electric Ass‘n, Inc., 728 P.2d 706, and Herring v. Platte River Power Authority, 728 P.2d 709, is fundamentally inequitable and will produce substantial difficulties in future cases. I therefore respectfully dissent.
Only five years ago, in Davis, we concluded that resolution of the question of whether landowners could recover for impaired access to the remainder of their property requires a determination of “whether the recovery of damages for impairment or limitation of access depends on whether part of the abutting landowner‘s property has been taken.” 626 P.2d at 664. Responding to this question, we stated that:
The rationale for denying compensation for limitation or loss of access manifested by circuity of route is that the inconvenience suffered by the landowner is identical in kind to that suffered by the community at large, and the landowner‘s inconvenience is only greater in degree.
In our view, whether or not property is actually taken is immaterial to the issue of damages to the remainder of the property for loss or limitation of access. The same criteria must be used in both instances. Compensation is only required when the remainder is damaged by a substantial limitation or loss of access. Any other result would create serious problems of fairness to landowners similarly situated.
Id. at 664-65 (citations omitted).
Lavelle, which involved a property owner‘s claim for damage to his right of ingress and egress over adjacent land and damage to his property from noise, smoke, noxious vapors and increased fire danger, also holds that the special damage require
It is clear that damages for noise, smoke, vapors and increased dangers from fire were not proper to consider. This inconvenience and injury would be common to all other property owners adjoining or adjacent to the power plant. The owner of property condemned is not entitled to recover damages to the residue for annoyance and inconvenience suffered by the general public. The damage to such residue is limited to some right or interest therein enjoyed by the owner, and not shared or enjoyed by the public generally.
.... The rule ... as applicable to this case is, that if several contiguous tracts in realty constitute one entire parcel used for one general purpose by the common owner, the particular and special injury which will result to the part not taken should be determined and compensation made accordingly.
49 Colo. at 300-01, 112 P. at 778 (emphasis added) (citations omitted).
The majority discards Lavelle without explanation or justification, see majority op. at 700, and it attempts to fit Davis within its rule under the qualification that “only those damages to the remainder that are attributable to the use of or activity on the land that has been taken” may be recovered. Majority op. at 701-702. However, nothing in the language of Davis supports the conclusion that the question of whether the limitation of access flowed from taken property or adjoining property played any part in the outcome of that case. To the contrary, we held that “whether or not property is actually taken is immaterial” to the determination of whether a landowner is entitled to compensation for diminished access. 626 P.2d at 665. Davis involved the taking of a portion of the property owner‘s land for a frontage road. Had Davis actually represented a rule allowing recovery for loss of access, a kind of injury that is also suffered by the general public, Troiano, 170 Colo. at 500-01, 463 P.2d at 455-56, the fact that a condemnee‘s land was taken would hardly have been “immaterial.” Rather, under the rule announced by the majority today, the fact of the taking would have compelled recovery unless the loss of access was not the “natural, necessary and reasonable result of the taking.” Majority op. at 703. We would then have had no choice but to address in Davis the question of whether the impairment of access resulted from the taking or from some other activity. We made no such determination.
Davis and Lavelle are both clearly incompatible with the majority‘s conclusion that, when property is taken under eminent domain, a landowner “is entitled to recover all damages to the remainder that are the natural, necessary and reasonable result of the taking....” Majority op. at 703. Those injuries that a landowner shares with the public at large, including impairment of access, Davis, and impairment of view, Troiano, are simply not compensable, regardless of whether they occur to the remainder left by a taking or to land that merely adjoins condemned property. Davis; Lavelle; see also Department of Public Works and Bldgs. v. Bloomer, 28 Ill.2d 267, 191 N.E.2d 245, 249 (1963); Illinois Power & Light Corp. v. Barnett, 338 Ill. 499, 170 N.E. 717, 719 (1930).
The fact that the majority of jurisdictions have declined to apply the general damage/special damage distinction to damage to remaining land where part of a parcel is taken, majority op. at 700, does not justify a contrary result. In citing 2A P. Nichols, The Law of Eminent Domain § 6.41 (J. Sackman rev‘d 3d ed. 1985) (Nichols), as illustrative of the rule in other jurisdictions, majority op. at 700 n. 3, the majority fails to acknowledge that the same section of Nichols notes that Davis amounts to a rejection of the majority rule. See 2A Nichols § 6.41 at 6-339 n. 3; see also Triangle, Inc. v. State, 632 P.2d 965, 968 (Alaska 1981) (quoting Davis, 626 P.2d at 665) (Davis relied on in concluding that awarding compensation for reduced highway access resulting from a partial taking would “create serious problems of fairness
I reject the majority‘s exception to the general damage/special damage distinction not only because I believe that we are bound by our decisions in Davis and Lavelle, but also because I am convinced that this exception will result in substantial inequity. The rule announced today creates an arbitrary distinction between an owner whose land is in part taken and one whose land is not taken at all. If two individuals own adjoining similar tracts and a power line, railroad, or highway is constructed in such a way as to take a few inches off one tract and to pass just outside of the other, the owner of the first tract under today‘s decision will recover full compensation for the depreciation in the value of his land caused by damage, such as impairment of view, that is experienced to a varying degree by his neighbor. Under Troiano, the owner of the second tract, which receives almost precisely the same injury, will recover nothing. See Walker v. Old Colony and Newport Ry. Co., 103 Mass. 10, 4 Am.Rep. 509, 512 (1869) (noting this discrepancy in compensation); see also 2A Nichols § 6.27[3], at 6-203. Despite these very different results, it is apparent that the landowner who has been compensated for land actually taken is in the same position as his neighbor with regard to any injury to his remaining land. One commentator, noting the discrepancy caused by this exception to the special damage requirement, remarked that:
Theoretically, if the objective of the eminent domain procedure is to spread throughout the community the costs and negative impact of public improvements ... a landowner should not be awarded consequential damages because a portion, however small, of his land was taken, where his neighbor, suffering the same loss, receives none because no portion of his land was actually taken.
Annot., 59 A.L.R.3d 488, 492-93 (1974); see also 2A Nichols § 6.27[3], at 6-203; Triangle v. State, 632 P.2d at 968.
We recognized the sound rationale for the special damage requirement over a century ago when we adopted the general damage/special damage distinction in City of Denver v. Bayer, 7 Colo. 113, 2 P. 6 (1883). In Bayer, which involved damage caused by construction of a railroad on a street in which the plaintiff arguably possessed an easement of access, we concluded that:
The railroad is a public benefit. It is generally of great advantage to the town or city to or through which it is built and operated, and for any injury or annoyance occasioned thereby which an adjoining owner shares in common with the general public, he ought not to recover; but for those damages which are peculiar to him, which affect his property and impair its value without injuring that of his neighbor, he ought, in justice, to receive compensation.
7 Colo. at 118, 2 P. at 9-10. The members of the public who benefit from a public improvement, such as the powerline at issue here, must also share the burden to the community that inevitably accompanies such improvements. The rule adopted by the majority today departs from this rationale by unfairly singling out for extra compensation those landowners who are “lucky” enough to have had land taken from them. I am unable to join in such an inequitable result, and would therefore reverse the judgment of the court of appeals.
Finally, I note that in its attempt to reconcile today‘s decision with Davis, the majority has set forth a test fraught with complications that will both tax the resources of our trial courts and discourage settlement of compensation claims. By allowing compensation for all types of injury to the remainder left behind by a partial taking, but then leaving open “the precise applicability and contours of [the] qualification” that recoverable injuries must be “the natural, necessary and reasonable result of
As a practical and theoretical matter, it would appear to be often clearly impossible to separate the effect on a landowner‘s remaining property of the use placed upon the land taken from him, as distinguished from the use placed upon the land of other adjacent owners.
Annot., 59 A.L.R.3d 488, 493 (1974) (footnote omitted). This factual uncertainty will undoubtedly discourage settlement by making it difficult for parties to estimate the total value of compensable damage. Both the uncertainty and the possibility of erroneous findings would be eliminated by adoption of either a rule holding general damage that a condemnee shares with the general public to be noncompensable or a rule holding that a condemnee may recover the entire diminution in the value of his remainder. While I favor the former rule for the reasons set forth above, even the latter rule would produce less vexatious results than the hybrid approach adopted by the majority.
I am authorized to say that Justice ERICKSON and Justice VOLLACK join in this dissent.
ROBERT E. LOHR
Justice, Supreme Court of Colorado