public use requirement in Colorado

2018Water Co., 812 N.E.2d 1118, 1123 (Ind. Ct. App. 2004) (“[A]bsent 12 the prior public use doctrine, property could be condemned back and forth indefinitely.”). ¶ 18 In Telluride, however, the court noted that the trial court found that Telluride’s condemnation was not motivated by bad faith.

2018Water 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.

2019See Mortensen v. Mortensen , 135 Colo. 167 , 309 P.2d 197 , 199 (1957). ¶25 The term "public use" is inherently amorphous.

2019See Mortensen v. Mortensen , 135 Colo. 167 , 309 P.2d 197 , 199 (1957). ¶25 The term "public use" is inherently amorphous.

2018See, 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,

2018See, 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,

2018Cf. 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.”).

2018Gas 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.

2018Cf. 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.

2018See, 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,

2018See, 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,

2018See, 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.

2012See Sinclair, 228 P.3d at 206-07 .

2004Uncharacteristically, article II, section 15 of the state constitution expressly assigns to the judiciary the task of giving meaning to the term "public use." Because the legislature is presumed to intend that its statutes be constitutional, section 2-4-201(1)(a), 1 C.R.S. (2003); see Le Manufacture Francaise v. District Court, 620 P.2d 1040 (Colo.1980) (legislature did not intend for long-arm statute to be construed to grant jurisdiction in violation of due process clause), we have previously construed broad grants of condemnation authority as implicitly limited by this court's interpretation

2004Uncharacteristically, article II, section 15 of the state constitution expressly assigns to the judiciary the task of giving meaning to the term “public use.” Because the legislature is presumed to intend that its statutes be constitutional, section 2-4-201(l)(a), 1 G.R.S. (2003); see Le Manufacture Fran-caise v. District Court, 620 P.2d 1040 (Colo.1980) (legislature did not intend for long-arm statute to be construed to grant jurisdiction in violation of due process clause), we have previously construed broad grants of condemnation authority as implicitly limited by this court’s interpretatio

2004In the related context of railroad lines, we have therefore held that legislative authority to condemn property "for any lawful purpose connected with the operations of the company" was implicitly limited to those purposes having "a sufficiently direct functional relationship to the operations of the railroad to satisfy the public use requirement." Buck, 199 Colo. at 347-48, 608 P.2d at 352.

2004In the related context of railroad lines, we have therefore held that legislative authority to condemn property "for any lawful purpose connected with the operations of the company" was implicitly limited to those purposes having "a sufficiently direct functional relationship to the operations of the railroad to satisfy the public use requirement." Buck, 199 Colo. at 347-48, 608 P.2d at 352.