CAW Equities, L.L.C., a Colorado limited liability company, Plaintiff-Appellant,
City of Greenwood Village, Colorado, a home rule municipality, Defendant-Appellee.
Arapahoe County District Court No. 15CV31946 Honorable
Charles M. Pratt, Judge
Campbell Rivera Johnson & Velasquez LLP, Darrell G. Waas,
Patricia C. Campbell, Denver, Colorado, for
Johnson, Robinson, Neff & Ragonetti, P.C., Thomas J.
Ragonetti, Bill E. Kyriagis, Brian J. Connolly, Denver,
Colorado; Tonya Haas Davidson, City Attorney, Greenwood
Village, Colorado, for Defendant-Appellee
1 In this private condemnation action under Colorado
Constitution article XVI, section 7 (Section 7), we address a
novel question - Does the "prior public use"
doctrine of eminent domain law apply to private condemnations
under Section 7? We answer that question "yes" and
affirm the district court's judgment related to that
doctrine. We also conclude that while Section 7 is
self-executing, it is not limitless. Consistent with numerous
Colorado cases, we conclude that this constitutional right,
as others, is subject to reasonable legislative regulation.
2 Petitioner, CAW Equities, L.L.C. (CAW), appeals from the
district court's judgment denying its private
condemnation of a public trail belonging to respondent, the
City of Greenwood Village. CAW contends that the district
court erred when it: (1) placed statutory limitations on the
constitutional right to private condemnation for water use;
(2) determined that CAW needed to make a showing of necessity
for the condemned property without first addressing the bad
faith issue; (3) required CAW to make a showing of
"absolute" necessity; (4) admitted testimony
regarding the feasibility of CAW's water plan; and (5)
awarded the City attorney fees. Because we conclude that
Section 7 may be limited by statute, and that the prior
public use doctrine provides an alternate basis to affirm the
district court's judgment, we do not address the
necessity issue, the bad faith issue, or the admissibility of
the feasibility evidence. Moreover, because we affirm the
district court's judgment, we also affirm its award of
3 CAW is a Colorado limited liability company managed by
Robert Lembke and owned and controlled by the Lembke family.
CAW sought private condemnation of a public equestrian and
pedestrian trail (public trail) that bisects two of its
adjacent properties. The public trail runs between the
Highline Canal to the north and Long Road to the south. The
City owns the public trail from a plat dedication and
separate dedication agreement for equestrian and pedestrian
diagram, based on admitted exhibits, is not to scale and is
provided for illustrative purposes only.
4 Several years before this suit was filed, CAW proposed
creating a new trail along the southern edge of the Eastern
Lembke Tract in exchange for vacating the public trail
through its property. The City expressed interest initially,
so Lembke made some improvements to the proposed route. He
offered easements to the City on CAW's property in
exchange for the public trail. The City ultimately rejected
this offer, so Lembke offered to purchase the public trail
for $85, 300. Without responding to this offer, the City
began construction to improve the public trail. Two days
after the City placed surveying stakes on the public trail,
CAW filed this petition in condemnation under Section 7.
5 CAW petitioned to condemn the entire public trail to
construct a ditch from the Highline Canal to the southern end
of its properties. The City opposed CAW's petition in a
C.R.C.P. 12(b)(1) motion to dismiss. It argued that CAW
brought the condemnation action in bad faith, and that the
rights it asserted did not comply with the legislative
authority that guided and implemented the constitutional
right of private condemnation. The district court granted the
City's motion in part, concluding that the eminent domain
statutes clarified and implemented the rights and
responsibilities of a party seeking to condemn property under
Section 7. It deferred the bad faith argument to the hearing
on the merits.
6 At the hearing, CAW presented expert testimony that its
proposed water plan was the most efficient and cost-effective
means of transporting water from north to south and diverting
it to the eastern and western tracts for irrigation. The City
presented contrary expert testimony of numerous alternatives
that did not require condemning the entire public trail. The
record reflects that the City offered to grant CAW an
easement to transport water across the public trail
consistent with these alternatives and that CAW rejected that
7 The district court issued a detailed written order denying
CAW's petition. It found that (1) the eminent domain
statutes were a proper application of legislative authority
to implement and regulate Section 7; (2) CAW was required to
show necessity for the proposed condemnation; (3) the
proposed water plan failed to comply with the relevant
statutes, and that CAW had failed to establish a need to take
property already in public use; and (4) CAW's failure to
establish the necessity of constructing its proposed ditch
rendered any bad faith determination unnecessary. The court
then awarded the City attorney fees and costs.
Private Condemnation Under Section 7
8 We first address whether the district court erred in
concluding that CAW lacked the authority to condemn the
public trail. CAW contends that the court imposed unlawful
restrictions on its right to condemn property under Section
7. It argues that Section 7 is self-executing and that a
private condemnor need not comply with the eminent domain
statutes or show necessity before exercising his or her
condemnation right. We disagree, and conclude, consistent
with well-settled law pertaining to other constitutional
provisions, that the legislature, through the eminent domain
statutes, may regulate Section 7 so long as it does not
unnecessarily limit or curtail the constitutional right.
Standard of Review and Applicable Law
9 We review a district court's judgment in a condemnation
action as a mixed question of fact and law. See Glenelk
Ass'n v. Lewis, 260 P.3d 1117, 1120 (Colo. 2011).
"[W]e defer to the trial court's findings of fact
unless they are so clearly erroneous as to find no support in
the record." Id. We review the court's
legal conclusions, including questions of constitutional and
statutory interpretation, de novo. Gessler v. Colo.
Common Cause, 2014 CO 44, ¶ 7. When interpreting a
statute, "a court's essential task is to determine
and give effect to the intent of the legislature."
Premier Farm Credit, PCA v. W-Cattle, LLC, 155 P.3d
504, 513 (Colo.App. 2006) (quoting People v.
Goodale, 78 P.3d 1103, 1107 (Colo. 2003)). To accomplish
this task, we must first examine the plain language of the
statute itself. Jefferson Cty. Bd. of Equalization v.
Gerganoff, 241 P.3d 932, 935 (Colo. 2010). If the
language is clear and unambiguous, we must interpret it as
10 This case involves a conflict between two rights. On the
one hand, the right to own and use property is fundamental
and important. See Akin v. Four Corners Encampment,
179 P.3d 139, 144 (Colo.App. 2007). On the other hand, water
is a "scarce and valuable resource" in Colorado.
Mount Emmons Mining Co. v. Town of Crested Butte, 40
P.3d 1255, 1257 (Colo. 2002). Consequently, water is
carefully managed, including its distribution in ditches, to
promote beneficial uses. See, e.g., Colo. Const.
art. XVI, § 6 ("Diverting unappropriated water -
priority preferred uses"); Colo. Const. art. XVI, §
7 ("Right-of-way for ditches, flumes");
§§ 37-86-101 to -113, C.R.S. 2017
("Rights-of-way and Ditches"); Archuleta v.
Gomez, 200 P.3d 333, 341-43 (Colo. 2009).
Ditches are important to Colorado. They permit a landscape,
economy, and history in which fertile valleys prosper.
Without them, properties adjacent to or distant from
watercourses wither. Colorado is not a riparian state in
which only those lands adjacent to the streams and rivers
have rights to waters. Rather, as early as the tenure of
the territorial legislature, our lawmakers recognized that
our arid climate required the creation of a right to
appropriate and convey water across the land of another so
that lands not immediately proximate to water could be used
Roaring Fork Club, L.P. v. St. Jude's Co., 36
P.3d 1229, 1231-32 (Colo. 2001).
11 The importance of water distribution in Colorado is
expressed in the state constitution, which permits private
property to be taken, without the consent of the owner, for
"reservoirs, drains, flumes, or ditches on or across the
lands of others." Colo. Const. art. II, § 14. It
also permits public land to be condemned for rights-of-way,
stating as follows:
All persons and corporations shall have the right-of-way
across public, private and corporate lands for the
construction of ditches, canals and flumes for the purpose
of conveying water for domestic purposes, for the
irrigation of agricultural lands, and for mining and