*1 471 8-40-101, (now seq., princi et a result. This was consistent with the codified at ch. July that ple, applicable, then the Workers’ Com Cum.Supp.)) effective liberally to be in pensation Act was construed 1991. order to effectuate humanitarian order sought of the ALJ’s review Claimant assisting injured in workers. Claimants The that the Panel. Panel noted the before Corp., Death Garner Vanadium re in an ex- was announced Martinez decision P.2d 1205 rights and general the rule that ception to occupational are de- ease does a situa- present an disease The not involve liabilities for in in the com- by law at the onset tion which claimant’s otherwise the effect termined holding occupational ren- disability. pensable Panel the disease would be The concluded non-compensable general unique resolution based dered under the Martinez was employer in applying that an the law at the time of upon the court’s view rule effect Furthermore, legislation disability. to onset of the not avoid amendments the should Martinez, employer application is unlike the situation to a claimant when the favorable employment general have rule will not exclude from that conditions of of the aware disease, occupational liability but continues for workers’ benefits an caused conditions, subjected to employer an who has a claimant subject the worker to those Accordingly, disability. greater disability. risk of increased producing the order and de- the Panel reversed ALJ’s unique holding of not The Martinez does governed by the law the claim termined presented require, under circumstances July prior 1991. effect here, departure general rule that by Panel appeal, employer argues parties’ rights are fixed On liabilities holding disability. Mar- failing apply law in effect at onset of erred not here. We do tinez to the circumstances The order is affirmed. agree. holding in single exception DAVIDSON, JJ.,

With concur. HUME Martinez, consistently we have occupational

rights and liabilities diseases at the onset governed the law in effect RSI, Inc., disability. Henderson v. (Colo.App.1991).

P.2d 91 Martinez, the claimant a hear- suffered noise

ing impairment exposure because Ms place. advised the work Claimant CLARE, Plaintiff-Appellant, Harold E. impairment, employer of the but continued time interruption. At work without AND FLORISSANT WATER initially hear- claimant became aware DISTRICT, SANITATION provided ing impairment, benefits were Defendant-Appellee. any occupational or condition disease However, was specified by statute. the law No. 93CA1609. permit compensation for amended to then Appeals, Colorado Court of any occupational satisfying the statu- disease Div. tory requirements. claimant continued III..

working employer after the amend- July effective. ment became that the

The court Martinez concluded occupational disease

claimant had suffered an to the of the statuto-

and was entitled benefit continued

ry amendment because he had impairment

working discovery after hearing loss of

and had suffered further *2 wells,

cally any pipe, of Clare’s physical equipment. other by filing Clare commenced this action complaint sought compensable in which he *3 alleged the his damages proper- for of ty District. He asserted that the the effectively had rendered his business District and that it had to institute useless failed proceedings against his eminent domain busi- compensate him ness or to for the diminished P.C., Howell, Michael T. Mitch- & Mitchell property. value of his ell, Parker, plaintiff-appellant. for court, upon The trial the District’s motion Pedersen, Springs, for Dale W. summary the judgment, for found that Dis- defendant-appellee. any Clare’s, trict of had had no land or facilities and that Clare con- Judge Opinion by JONES. provide tract franchise to water to the residents of the District. For the of theory premised on of In action the this motion, accepted the the as true Clare’s court condemnation, plaintiff, Harold E. inverse allegation that the District had rendered his Clare, summary judgment the appeals en- Nevertheless, nearly worthless. the business defendant, against him in favor tered and of District, for granted judgment court the con- District Florissant Water and Sanitation not be cluding that the District could (District). and remand for fur- We reverse theory liable under a of inverse condemna- proceedings. ther statutory powers. exercising operated and Florissant Wa- Clare owned appeal, Clare contends that On Service, providing water to customers in ter summary granting judg trial court erred Colorado, Florissant, vicinity. and its complaint. ar dismissing ment his He and organized in special District is a district District, effect, that, gues since the confis predecessor to the pursuant to the statute market, compensable taking cated oc Act, seq., §§ 32-1-101 et Special District here, we curred. Under the circumstances (1993 Cum.Supp.). In accordance C.R.S. (1993 agree. 32-1-1006, Cum.Supp.), C.R.S. alia, authority, to the District has the inter provides, in rele Colo. Const. art. rights to acquire and construct and water property shall not be part: vant “Private operate and facilities within and outside lines use, damaged, public private taken or District; power to of emi- exercise just compensation.” Inverse con without domain; compel and of cer- nent to owners actions, demnation as well as eminent domain premises to to the District’s tain connect actions, may provision. from this Oss arise sewer lines. water and Telephone & Tele man v. Mountain States Co., graph 184 Colo. 520 P.2d responsi- statutory with its Commensurate bilities, District constructed a wa- entity, an “taking” A occurs when May system. the District ter works domain, power of clothed with eminent and com- of all residential directed owners substantially deprives owner planned properties then mercial enjoyment property. use and to District’s service area connect within the (Colo. Grynherg, 846 P.2d Northglenn system. It is water undis- District’s puted while was the sole water rule, general prop As a organization, provider prior the District’s occurs, meaning erty within the consti an hold exclusive fran- at time did Clare confiscatory ac chise, license, provision, when the provide tutional or contract water with the an actual interference It is fur- tion involves District’s boundaries. within use, enjoyment possession, physi- physical agreed District has not ther that the 32-1-1006(1)(f), Cum.Supp.) legal with the property, or a interference it. A disposition require its residents to connect to its owner’s forego required system, occurs if an owner is to the detriment of also water Clare’s economically of his or her pre-existing previously use business which had beneficial entity provider of com property, and when a been the sole water for the munity. suggestion an exercise this takes actions which translate to There is no City Northglenn authority oth of dominion and control. exercise of was ultra vires or Grynberg, supra. statutory grant. erwise without Neverthe less, proper taken in the actions exercise However, government is not governmental authority, even if in fur done precluded constructing oper se per *4 accomplishment ap therance of of some ating competition its own with waterworks propriate necessary public purpose, may, privately company, a see Town Glen of circumstances, taking a some constitute Springs Light v. Glenwood & Water wood constitutionally requires compensation. which Co., (8th Cir.1912); 202 F. 678 Thomas v. Evangelical See Bethlehem Lutheran Church Junction, 80, City Colo.App. 56 Grand 13 of Lakewood, (Colo. City v. 626 P.2d 668 of (1899), may though acting 665 P. even it be 1981). proprietary capacity, a business and not The record reflects that has the District governmental City capacity. its North of by requiring excluded Clare the market Thornton, City v. Colo. glenn 193 569 of up residents within service area to hook (1977). Thus, 319 compensable P.2d a system. to the District’s Because we deter- not occur government does when the enters justiciable mine that there are issues as business, competition into with an whether the District’s actions leave no basis if that harm even business suffers economic it, compete on which could Clare competition. the result of the See Amos required may pay District be com- Clare Bennett, Plumbing & Electric 261 Co. v. Ga. pensation damage by caused ex- (1992); 411 Develop S.E.2d 490 Water Valley clusion. Poudre See Rural Electric Works, Co. v. ment Board Water 488 of Loveland, (Colo. City Ass’n v. 807 P.2d 547 (Iowa of 1992); 158 N.W.2d 29A C.J.S. Emi 1991). Sackman, § nent Domain 107. See 2 J. also (1994). § on Eminent 6.01 Nichols Domain Furthermore, light ru And, competes the fact municipality that a Valley, bric of Poudre and under the circum new for customers within an area where a here, stances the fact that not Clare does utility not, already operates does contract, license, have an exclusive fran alone, taking. amount compensable to a Un preclude not compensation. chise does Rural ion Electric Ass’n v. Town Freder right and his Clare’s facilities to serve his ick, (Colo.1983); 670 P.2d 4 Public Utilities property purposes customers are for Loveland, City v. 76 Colo. Commission “taking” clause Colo. Const. art. (1924). 230 P. 399 Valley, previous provid- Poudre sole Also, compensation ordinarily will by city er in the area annexed of Love- property property be due a not owner whose providing land had excluded from cer- been merely depreciated by govern has in value tain That propo- service. case stands for the Similarly, action. diminu mental incidental circumstances, sition under such if generally profit business is not re prior utility is excluded or if its facilities garded compensable as an element of dam condemned, a regardless occurs age authorizing in the of an statute. absence facilities, appropriated com- status of the City Northglenn Grynberg, supra; Au- pensation Valley due. See is Poudre Rural Confiscation, Against raria Businessmen Loveland, supra. Electric Ass’n Authority, v. Denver Inc. Urban Renewal compensation An owner is entitled to 517 P.2d a governmental the value of business when a Here, authority exercised appropriates District has the business. This 32-1-1006(1)(e) statutory here, §§ principle applies under to the circumstances pivotal question legally is whether the Dis- itself remains for Clare’s business statutorily may trict’s authorized actions consti- have been reduced worth- intact but property a of a governmental tuted interest Clare of a the actions lessness compensa- him so as to entitle to an award of private has excluded which subdivision upon tion based claim of inverse condemna- Gully v. competitor from the market. See Co., tion. Telephone 774 F.2d Bell Southwestern Cir.1985). (5th Clare had no franchise or right to furnish water to the exclusive resi- appropriated it has not The District insists Generally, dents within the District. it is physical proper- any equipment of Clare’s recognized expectation of that the mere con- However, if facilities cannot be ty. Clare’s customers, standing tinued business and area or

removed from the District’s service alone, property not sufficient interest has, re-used, prac- District as a otherwise support an award of for in- matter, condemned those facilities. tical 2 J. P. verse condemnation. See Saekman & Hence, compensa- would be entitled Rohan, Nichols on Eminent Domain condemnation, as well as to tion for such § 5-285 and at 5-291 5.22[5] at 5.24 appro- damages (rev. *5 through 5-298 ed. 3d but, nevertheless, damaged by the priated Valley Rural actions. Poudre District’s contract, Without a franchise or exclusive Loveland, City supra. Electric Ass’n v. “property” lacks a sufficient interest to support compensation an award of here: reversed, judgment The and the cause is municipality granted a has an ex- Unless with directions to reinstate remanded franchise, clusive or has otherwise entered complaint proceedings and further consis- compete into a valid contract not to with a expressed. tent with the views herein public company, where it has au- service do, thority may it compet- construct a so J., PLANK, concurs. light railway, ing plant or or street water competition may though even be ruin- KAPELKE, J., dissents. ous, provided requiring there is no statute Judge dissenting. KAPELKE purchase plant it to furnishing supply company engaged in a or respectfully I dissent. service.... view, correctly grant- my In the trial court McQuillin, Municipal Corporations E. summary judgment in ed favor of defendant. (3d ed. 35.13 at 515 rev. that, agree I with the trial court because franchise, I If such a would Clare held fran- Clare had contract or have a claim for agree that he would valid chise, a compensable did not suffer he in recognized Pou inverse condemnation meaning of property within the Valley Royal Electric Ass’n dre Const, art. 15. (Colo.1991). Loveland, P.2d 547 Here, that Clare does contend however, utility Valley, Poudre acquired District has land sup- excluded whose business had been his actual water distribution facili- over a municipality such fran- by the planted Rather, premises he his claim on the ties. public in form a certificate chise loss of his customers and business which necessity granted convenience resulted from defendant’s actions estab- Public Commission. Utilities lishing special requiring district and a water Moreover, ap- the court the statute which hook up Clare’s customers to District’s condemna- support case to plied water lines. requires payment of specifically a tion award statute, operates municipality when a By the District has thereby injures coop- utility a premises compel their an electric landowners connect has association that “been 32-1- erative electric to the District’s water lines. Section (1993 territory.” 1006(1)(a), See- Cum.Supp.). granted an exclusive service C.R.S. 40-9.5-201, Cum.Supp.) added). (emphasis HODGES, Petitioner, Delbert R. supreme emphasized court Poudre Valley rights that it was the associated INVESTORS, CANON LODGE MEDICAL the certificate of convenience and ne- LTD., Appeals and The Industrial Claim cessity requisite proper- that constituted the Colorado, Respon- Office of the State of ty Valley’s interest: “Both Poudre facilities dents. right and its to serve customers under the No. 93CA1297. public necessity certificate of purposes takings clause.” Poudre Appeals, Colorado Court of Valley, supra, (emphasis 807 P.2d at 555 Div. V. added). July recog-

The courts of other states have also nized such situations as this which government entity enters into the water

supply destroys injures business and thus private supplier, compensation need not be

paid plaintiff unless the can demonstrate ei- physical

ther that there has been a property right of a in the form of a

governmentally conferred franchise. See Plumbing Bennett,

Amos & Electric v.Co. *6 810, (1992);

261 Ga. 411 S.E.2d 490 Water

Development Works, Co. v. Board Water (Iowa 1992); 488 N.W.2d 158 Alford Denton, 546 (Tex.Civ.App. S.W.2d 672 1977). See also Knoxville Water Co. v.

Knoxville, 22, 200 U.S. 26 S.Ct. 50 L.Ed. (1906); Skaneateles Waterworks v. Ska-

neateles, 184 U.S. 22 S.Ct. 46 L.Ed. here, has no vested interest expectation

and his mere continuing busi-

ness with his water customers does not con- “property”

stitute of an in-

verse condemnation claim.

I therefore conclude that there has been “taking property” within the contem- Const, II, plation art. and I

would affirm the trial summary judg- court’s

ment in favor of the District. Services, Legal

Pikes Peak Barbara L. Hughes, Springs, petitioner.