12 CAW Equities v. City of Greenwood Village

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
March 22, 2018

2018COA42

No. 2017CA0212 CAW Equities v. City of Greenwood Village —
Eminent Domain — Private Condemnation — Prior Public Use
Doctrine

In this private condemnation action, a division of the court of

appeals concludes, as a matter of first impression, that the prior

public use doctrine applies to Colorado Constitution article XVI,

section 7, to preclude a private condemnation that would entirely

eliminate an existing public use on the property. The division

further concludes that Colorado’s eminent domain statutes properly

clarify and regulate the constitutional right of private

condemnation. Finally, the division awards attorney fees to the City

of Greenwood Village under section 38-1-122(1), C.R.S. 2017
COLORADO COURT OF APPEALS 2018COA42

Court of Appeals No. 17CA0212
Arapahoe County District Court No. 15CV31946
Honorable Charles M. Pratt, Judge

CAW Equities, L.L.C., a Colorado limited liability company,

Plaintiff-Appellant,

v.

City of Greenwood Village, Colorado, a home rule municipality,

Defendant-Appellee.

JUDGMENT AFFIRMED

Division VII
Opinion by JUDGE FREYRE
Bernard and Berger, JJ., concur

Announced March 22, 2018

Waas Campbell Rivera Johnson & Velasquez LLP, Darrell G. Waas, Patricia C.
Campbell, Denver, Colorado, for Plaintiff-Appellant

Otten, 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

1
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 attorney fees.

I. Background

¶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 use.

2
This 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

3
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

4
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 offer.

¶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.

II. 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

5
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.

A. 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)).

6
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 written. Id.

¶ 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

7
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 and developed.

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
manufacturing purposes, and for drainage,
upon payment of just compensation.

Colo. Const. art. XVI, § 7.

¶ 12 Section 7 is self-executing, which means that it “shall take

immediate effect, and ancillary legislation is not necessary to the

8
enjoyment of the right thus given, or the enforcement of the duty

thus imposed. In short, if a constitutional provision is complete in

itself, it executes itself.” Town of Lyons v. City of Longmont, 54

Colo. 112, 117, 129 P. 198, 200 (1913). Thus, at the time of its

adoption in 1876, no further legislative action was required to

implement it.

¶ 13 Nevertheless, “[a] provision can still be self-executing even if

‘further legislation may clarify or facilitate the execution of the

provision.’” Developmental Pathways v. Ritter, 178 P.3d 524, 531

(Colo. 2008) (quoting Davidson v. Sandstrom, 83 P.3d 648, 658

(Colo. 2004)). Indeed, “although the constitution recognizes the

right of eminent domain, it is proper for the legislature to impose

just limitations which do not prevent the exercise of the right.”

Gibson v. Cann, 28 Colo. 499, 501, 66 P. 879, 880 (1901); see also

Davidson, 83 P.3d at 658 n.9 (“Only legislation which ‘directly or

indirectly limits, curtails or destroys the rights given by those

provisions is invalid as violative of the rights reserved by the people

to themselves.’” (quoting Colo. Project-Common Cause v. Anderson,

178 Colo. 1, 5, 495 P.2d 220, 222 (1972))).

9
B. The Eminent Domain Statutes Apply to Section 7

¶ 14 Relying on Town of Lyons, CAW argues that Section 7 is

self-executing and cannot be limited or curtailed by the eminent

domain statutes. To be sure, our supreme court concluded that the

City of Longmont was entitled under Section 7 to condemn a

right-of-way through the streets of Lyons for a water pipeline and

stated that “[t]he intent of a constitutional provision is the law.”

Town of Lyons, 54 Colo. at 116, 129 P. at 200. However, it reached

this conclusion “independent of statutory provisions” and without

considering whether the eminent domain statutes could limit

Section 7. Id.

¶ 15 Moreover, it noted that Lyons “retains authority to prescribe

all reasonable and necessary rules and regulations which the city of

Longmont must observe in maintaining its pipe line . . . and all

rights which [Longmont] may exercise over its line within the

corporate limits of Lyons are therefore subject to such control.” Id.

at 117, 129 P. at 200. In our view, this language refutes CAW’s

argument that Section 7 provides a limitless right and supports the

principle that “the manner of exercising the [constitutional] right

[may be] regulated by statute.” Downing v. More, 12 Colo. 316, 318,

10
20 P. 766, 767-68 (1889); see also Tripe v. Overacker, 7 Colo. 72,

73, 1 P. 695, 696 (1883) (holding that the statute limiting the

number of ditches that could cross another’s land was a proper

limitation of Section 7).

¶ 16 More recently, our supreme court explained that “[t]he extent

of the right-of-way is defined by section 37-86-103, C.R.S. 1973,

and the right of condemnation to acquire the right-of-way is granted

by section 37-86-104, C.R.S. 1973.” Application of Bubb, 200 Colo.

21, 27, 610 P.2d 1343, 1347 (1980). In doing so, the court

recognized that the sources of the right of condemnation are

Colorado Constitution article II, section 14, and Section 7. Id. at 27

n.11, 610 P. at 1347 n.11.

¶ 17 We conclude that while Section 7 may be self-executing, it is

not without limitation, as suggested by CAW, but may be regulated

and implemented by the eminent domain statutes. Well-settled law

recognizes the legislature’s ability to “regulate the exercise” of the

right of private condemnation, and to hold otherwise would allow

private condemnors an unfettered ability to condemn property

without any guiding principles, and would leave condemnees and

courts with little understanding of the contours of the right.

11
¶ 18 Accordingly, we make explicit what has been implied in our

case law — that the eminent domain statutes properly regulate the

exercise of the right of private condemnation under Section 7. See

Passarelli v. Schoettler, 742 P.2d 867, 870 (Colo. 1987) (“[T]o

withstand constitutional challenge statutory provisions must, at a

minimum, have a reasonable basis in fact and bear a reasonable

relationship to a legitimate governmental interest.”).

¶ 19 CAW alternatively argues that even if the eminent domain

statutes apply, its proposed plan does not violate them. For the

reasons stated below in Part III, discussing the prior public use

doctrine, we conclude that CAW did not have the authority to

condemn the public trail. Therefore, we need not decide whether

the proposed plan complies with the eminent domain statutes.

III. Prior Public Use Doctrine

¶ 20 Whether a person claiming a right to condemn property for a

ditch must show that the ditch is “necessary” under the

constitution is a difficult and unresolved question. CAW claims

that Section 7 does not require it to show a ditch is necessary, and

that it provides an absolute right to condemn. CAW reasons that

because it plans to construct a ditch, as expressly authorized under

12
Section 7, and because Section 7 contains no language requiring

proof of necessity, it need not make such a showing. The City, on

the other hand, asserts that CAW must prove that the ditch is

necessary to access its water rights in order to condemn a ditch, an

argument with which the district court agreed.

¶ 21 However, we need not decide this unsettled question1 because,

as the court found, the land CAW seeks to condemn is already in

public use as a public trail. Therefore, we address, as a matter of

first impression, whether the prior public use doctrine applies to

private condemnation proceedings under Section 7 and conclude

that it does. We further conclude that Section 7 does not constitute

“express authority” to condemn property in public use, and that the

court properly applied this doctrine in finding that CAW failed to

(1) allege express authority for its right to condemn all of the public

trail; (2) prove that the right to condemn property already in public

use was a necessary implication of its private condemnation right;

1Colorado law is well established that to condemn a private right of
way for ingress or egress, the condemnor must show necessity.
Glenelk Ass’n v. Lewis, 260 P.3d 1117, 1122 (Colo. 2011). However,
whether this same requirement and the definition of “necessary”
used in the private right-of-way context apply to irrigation ditch
easements is unresolved.

13
and (3) prove that some public exigency existed to justify the

necessity of condemning the public trail.

A. Standard of Review and Applicable Law

¶ 22 We review a district court’s judgment in a condemnation

action as a mixed question of fact and law. Glenelk Ass’n, 260 P.3d

at 1120. “[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 de novo. Id.

¶ 23 Over one hundred years ago, our supreme court considered

whether a private company could condemn a piece of land for a

reservoir that was being held for railroad use. See generally Denver

Power & Irrigation Co. v. Denver & R.G.R. Co., 30 Colo. 204, 69 P.

568 (1902). In discussing article 2, section 14 of the constitution

and the prior public use doctrine, the court stated as follows:

It is unnecessary to attempt an analysis of this
constitutional provision, — whether or not it is
self-executing, or the legislature has provided
laws by which its provisions may be enforced,
— further than to say that neither the
constitutional provision referred to nor any
statute to which our attention has been
directed changes or modifies the general rule
that property already devoted to a public use
cannot be taken for another in such manner or
to such an extent that the use to which it is

14
devoted will be wholly defeated or superseded,
unless the power to so take be granted
expressly or by necessary implication, except it
may be in cases where a public exigency
requires that it be taken.

Id. at 210, 69 P. at 570 (emphasis added) (citations omitted). While

the court did not analyze Section 7, it clearly rejected the

“self-executing” argument in a similar constitutional provision,

under similar circumstances, and found that the prior public use

rule could only be defeated expressly, by necessary implication, or

by public exigency. Id. This prior public use rule has been

reiterated in case law and continues to operate in Colorado in cases

under Colorado Constitution article II, section 14. See, e.g., Beth

Medrosh Hagodol v. City of Aurora, 126 Colo. 267, 273-74, 248 P.2d

732, 735 (1952) (noting the prior public use doctrine applies where

the city sought to condemn cemetery property for a reservoir); Town

of Parker v. Colo. Div. of Parks & Outdoor Recreation, 860 P.2d 584,

586 (Colo. App. 1993) (“The right to take property already dedicated

to a public use for another public use exists in some cases, but

such right must be by specific grant of authority.”); see also Mark S.

Arena, Comment, The Accommodation of “Occupation” and “Social

Utility” in Prior Public Use Jurisprudence, 137 U. Pa. L. Rev. 233,

15
234 & n.5 (1988) (collecting cases adopting the prior public use

doctrine under various constitutional and statutory provisions).

B. Application

¶ 24 CAW does not provide, nor can we discern, any reason to limit

the prior public use rule to takings of private property to construct

ditches for conveying water under article II, section 14 of the

constitution. Instead, we believe the prior public use rule applies

with equal force to the more narrow circumstance of taking property

for a right-of-way to construct a water ditch under Section 7.

¶ 25 CAW contends that Section 7 “expressly allows a taking of

public property as long as it is for one of the enumerated purposes”

and that the prior public use rule does not require otherwise. It

argues that because Section 7 allows a “right-of-way across public”

lands (emphasis added), it expressly authorizes the condemnation

of lands already in public use. However, this argument

misconstrues the scope of Section 7, and it misconstrues the prior

public use rule.

¶ 26 First, Section 7 is a narrow provision that allows “persons and

corporations” a “right-of-way across public, private, and corporate

lands . . . .” It is not an express provision to condemn entire tracts

16
of land currently in public use. Cf. Minn. Power & Light Co. v. State,

225 N.W. 164, 165-66 (1929) (“There is a distinction between power

merely to cross a railway or other line and authority to construct a

railway or line longitudinally upon or through property already

devoted to a public use.”). CAW’s argument fails to acknowledge

how narrowly we must construe the condemnation power, Town of

Parker, 860 P.2d at 586 (“[N]arrow construction is the rule in

determining the scope of the condemnation power delegated.”), and

how broadly we must construe statutes regulating that power,

§ 37-86-101, C.R.S. 2017. Thus, although the language of Section

7 includes a private right to condemn public, private, or

corporate-owned property for water rights-of-way, it must be viewed

through the broader lens of the eminent domain statutes that

regulate it.

¶ 27 To that end, we believe that CAW misconstrues the meaning of

“express” authorization. In Denver Power & Irrigation Co., the court

noted that although the petitioner had a general right to condemn

properties held for railroad use, “no statute is pointed out which

would authorize [petitioner] to take such property to an extent

which would totally deprive the railroad companies of its use.” 30

17
Colo. at 211, 69 P. at 570 (emphasis added). We glean from this

case that the prior public use doctrine requires express legislative

or constitutional authority for a condemnor to entirely extinguish

an existing public use, as distinct from the general grant of the

power to condemn.

¶ 28 Although Section 7 grants the general authority to condemn

public property for a right-of-way to access water, it does not

expressly grant the authority to extinguish an existing public use

on such property. See, e.g., Freeman Gulch Mining Co. v. Kennecott

Copper Corp., 119 F.2d 16, 20 (10th Cir. 1941) (applying Utah

statutes and holding that property devoted to one public use may,

under general statutory authority, be taken for another public use,

where the taking will not materially impair or interfere with, or is

not inconsistent with, the use already existing); Village of Richmond

Heights v. Bd. of Cty. Comm’rs, 166 N.E.2d 143, 150 (Ohio Ct. App.

1960) (“As a general rule, property already devoted to a public use

cannot be taken for another public use which will totally destroy or

materially impair or interfere with the former use . . . .”); In re Vt.

Gas Sys., Inc., 174 A.3d 1253, 1259 (Vt. 2017) (“[W]e conclude that

the prior public use doctrine does not prohibit condemnation of

18
land devoted to a public use when the new use does not materially

impair the prior use.”); cf. Wyo. Stat. Ann. §§ 1-25-813, 1-26-505

(West 2017) (condemnations of property in public use allowed on a

showing that the new use will not unreasonably interfere with or

impair prior public use). CAW does not cite, nor have we found,

any authority granting the unfettered power to condemn that it

espouses. Cf. Town of Parker, 860 P.2d at 587 (explaining that the

“general grant of eminent domain power” of Colorado Constitution

article XX, section 1 “confers no specific condemnation powers over

state-owned lands” and thus could not justify condemnation); see

also Lake Cty. Parks & Recreation Bd. v. Ind.-Am. Water Co., 812

N.E.2d 1118, 1123 (Ind. Ct. App. 2004) (“[A]bsent the prior public

use doctrine, property could be condemned back and forth

indefinitely.”).

¶ 29 Narrowly construing the right to condemn, as we must, we

reject CAW’s argument that Section 7 expressly authorizes it to

extinguish the public trail and instead conclude that Section 7

merely grants express authority to a right-of-way, so long as the

right-of-way does not extinguish the prior public use. Consistent

with this holding, the district court found that several alternatives

19
to extinguishing the public trail existed and that CAW could obtain

a right-of-way to access its water rights without eliminating the

existing public use. Because ample record evidence supports this

conclusion, we discern no error.

¶ 30 Additionally, to the extent CAW asserts that its right to

condemn land in existing public use arises “by necessary

implication” of Section 7, we reject that assertion for the reasons

explained above and conclude that the right to condemn an entire

tract of public land in public use is not a necessary implication of

the general right to privately condemn a right-of-way for a ditch.

See Mack v. Town of Craig, 68 Colo. 337, 338-39, 191 P. 101, 101

(1920) (“The authority to condemn must be expressly given or

necessarily implied. The exercise of the power being against

common right, it cannot be implied or inferred from vague or

doubtful language . . . . When the right to exercise the power can

only be made out by argument and inference, it does not exist.”

(quoting John Lewis, Law of Eminent Domain § 371 (3d ed. 1909)));

cf. Bd. of Cty. Comm’rs v. Intermountain Rural Elec. Ass’n, 655 P.2d

831, 833-34 (Colo. 1982) (concluding that although the county had

20
a duty to provide county offices, the fact that an individual did not

want to sell offices did not necessarily imply the right to condemn).

¶ 31 Where, as here, a private condemnor can obtain a right-of-way

without extinguishing the existing public use, the condemnation

power does not necessarily imply such a power. Cf. Bd. of Cty.

Comm’rs, 655 P.2d at 833 (explaining that, when a statute is silent

and the power can be exercised “without resort to condemnation,” it

is presumed the legislature intended the property be acquired

without condemnation).

¶ 32 Finally, CAW provided no evidence of a “public exigency” to

justify condemning the public trail. Indeed, it failed to show that a

ditch over the entire tract was necessary, and it conceded that a

ditch on the Eastern Lembke Tract was possible, though not

preferable. See Beth Medrosh Hagodol, 126 Colo. at 274, 248 P.2d

at 736 (finding exigency not established where “it [was] not shown

that it [was] necessary to take the land in question, nor [was] it

alleged or shown that no other land or site [was] available”).

¶ 33 Thus, while CAW’s proposed water plan may reflect the most

cost-effective and efficient option to achieve its own purposes, it

does not reflect the only available option, nor does it consider the

21
existing public use. See Denver Power & Irrigation Co., 30 Colo. at

211, 69 P. at 570 (“It may be true that the site thus selected is

convenient, or it may even be true that it is the only available one

on the stream; but that is a matter which affects the rights of

petitioner, and not the public.”). Indeed, efficiency and costs relate

only to CAW’s rights and not the public. Id.

¶ 34 The district court concluded that “there are other available

means and locations to achieve the goal of conveying or

transporting the water without interfering with the public trail

which would defeat the use for which it was dedicated to the

public.” Because ample record evidence supports this finding, the

court did not err in so concluding. See Glenelk Ass’n, 260 P.3d at

1120 (“[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.”).

¶ 35 Accordingly, we affirm the court’s judgment that CAW lacked

the legal authority to condemn the public trail.

IV. Remaining Issues

¶ 36 Having concluded that the district court properly denied

CAW’s petition for the condemnation of the public trail, we need not

decide whether a condemnor needs to establish necessity under

22
Section 7, whether a finding of bad faith is a necessary predicate to

determining necessity, or whether the court abused its discretion in

admitting feasibility evidence. See People v. Lopez, 2015 COA 45,

¶ 64 (refusing to address issues raised when a narrower decision is

reached).

V. Attorney Fees and Costs

¶ 37 CAW last contends that the district court erred in awarding

the City its attorney fees and costs under section 38-1-122(1),

C.R.S. 2017. Because we agree that CAW was “not authorized by

law to acquire real property or interests therein sought in a

condemnation proceeding,” id., we affirm the attorney fee judgment.

A. Standard of Review and Applicable Law

¶ 38 A court may award attorney fees and costs “when authorized

by statute or court rule.” § 13-16-122(1)(h), C.R.S. 2017; United

Bank of Denver, Nat’l Ass’n v. Colo. State Treasurer, 797 P.2d 851,

852 (Colo. App. 1990). We review an attorney fee award for an

abuse of discretion and will not disturb that award unless it is

patently erroneous or unsupported by the evidence. Hartman v.

Freedman, 197 Colo. 275, 591 P.2d 1318 (1979). Whether a

statutory basis for attorney fees exists is a question of law that we

23
review de novo. US Fax Law Ctr., Inc. v. Henry Schein, Inc., 205

P.3d 512, 515 (Colo. App. 2009); Town of Telluride v. San Miguel

Valley Corp., 197 P.3d 261, 262 (Colo. App. 2008) (reviewing

statutes de novo).

¶ 39 Section 38-1-122(1) authorizes an award of attorney fees and

costs in condemnation cases:

If the court finds that a petitioner is not
authorized by law to acquire real property or
interests therein sought in a condemnation
proceeding, it shall award reasonable attorney
fees, in addition to any other costs assessed, to
the property owner who participated in the
proceedings.

(Emphasis added.) Attorney fees and costs, therefore, are

recoverable for the successful defense of a private condemnation

action. See West v. Hinksmon, 857 P.2d 483, 487 (Colo. App. 1992)

(Attorney fees should be allowed in private condemnation action “if

it is established that an alternate acceptable route is legally

available to the condemnor at the time the action is commenced.”);

Billington v. Yust, 789 P.2d 196, 198 (Colo. App. 1989) (noting the

statute provides “for the imposition of attorney fees as part of

recoverable costs” in private condemnation action).

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B. Application

¶ 40 CAW does not challenge on appeal the reasonableness of the

attorney fees awarded by the district court, but only the court’s

legal basis for ordering them under section 38-1-122. It contends

that the phrase “not authorized by law” “should not be read so

broadly as to include every condemnation that does not proceed to

a valuation hearing.” CAW reasons that the court’s interpretation

would require condemnors to pay fees and costs in all dismissed

cases, irrespective of whether there was any legal basis for filing the

condemnation petition.

¶ 41 We agree with CAW that “[u]nlike some attorney fee statutes,

[section] 38-1-122(1) does not provide that fees are to be awarded to

the ‘prevailing party,’” Wilkenson v. Gaffney, 981 P.2d 1121, 1123

(Colo. App. 1999), but instead “authorizes the court to award fees to

the respondent property owner if the petitioner is not authorized by

law to acquire the real property interests sought,” id.

¶ 42 Because the court acknowledged that CAW could acquire a

right-of-way across the public trail, albeit not the one it sought,

CAW argues that it was authorized to condemn at least some of the

public trail and should not be required to pay attorney fees.

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¶ 43 Recall, however, that CAW sought to condemn all of the public

trail, not an easement across it. In fact, the record shows that CAW

explicitly rejected the City’s offer for such an easement. Therefore,

because the only property interest that CAW “therein sought” to

condemn under section 38-1-122(1) was the entire public trail, not

the easement the court acknowledged it could obtain, we conclude

that CAW’s petition was not authorized by law, under the prior

public use doctrine, and that the district court properly awarded

fees and costs to the City under section 38-1-122(1). Cf. Wilkinson,

981 P.2d at 1122 (awarding attorney fees for petitioners’ request for

utility easement that did not succeed despite succeeding in

obtaining a right-of-way).

¶ 44 Alternatively, CAW argues that the fee award should be

reduced because it had legal support for its private condemnation

action across the public trail. We construe this argument as one

asserting that its petition was not frivolous or vexatious, an

argument with which we agree but find irrelevant. The question

here is not whether CAW brought a frivolous, groundless, or

vexatious suit. See § 13-17-101, C.R.S. 2017. Rather, the question

is whether the law authorized CAW to bring the suit “to acquire real

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property or interests therein sought.” § 38-1-122(1). CAW does not

dispute that it sought to condemn the entire public trail or that it

rejected the City’s offer of an easement across the public trail.

Because the prior public use doctrine precluded what CAW sought,

CAW’s petition was not “authorized by law.”

¶ 45 We are not persuaded that Hinksmon requires a different

result. In that case, a division of this court reversed a condemnee’s

attorney fee award because it concluded that what the condemnor’s

petition sought — a private right of necessity — was authorized by

law, even though the district court found that a less damaging route

existed. 857 P.2d at 487. The division remanded the case for

further findings to determine the location of the easement. In

Hinksmon, what the petition sought and what was awarded were

the same — a private right of necessity.

¶ 46 In contrast, here, CAW’s petition sought condemnation of the

entire public trail, not an easement across it. Under these

circumstances, CAW’s petition was not authorized by law, and we

conclude the district court properly awarded the City fees and costs

under section 38-1-122(1).

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VI. Conclusion

¶ 47 The judgment is affirmed.

JUDGE BERNARD and JUDGE BERGER concur.

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