(1) In all cases where the right to take private property for public or private use without the owner's consent or the right to construct or maintain any railroad, spur or side track, public road, toll road, ditch, bridge, ferry, telegraph, flume, or other public or private work or improvement which may damage property not actually taken is conferred by general laws or special charter upon any corporate or municipal authority, public body, officer or agent, person, commissioner, or corporation and the compensation to be paid for, in respect of property sought to be appropriated or damaged for the purposes mentioned, cannot be agreed upon by the parties interested; or, in case the owner of the property is incapable of consenting, or his name or residence is unknown, or he is a nonresident of the state, it is lawful for the party authorized to take or damage the property so required to apply to the judge of the district court where the property or any part thereof is situate by filing with the clerk a petition, setting forth, by reference, his authority in the premises, the purpose for which said property is sought to be taken or damaged, a description of the property, the names of all persons interested as owners or otherwise, as appearing of record, if known, or, if not known, stating that fact, and praying such judge to cause the compensation to be paid to the owner to be assessed. If the proceedings seek to affect the property of persons under guardianship, the guardians or conservators of persons having conservators shall be made parties defendant. Persons interested whose names are unknown may be made parties defendant by the description of the unknown owners. In all such cases an affidavit shall be filed by or on behalf of the petitioner, setting forth that the names of such persons are unknown.
(2) In cases where the property is sought to be taken or damaged by the state for the purpose of establishing, operating, or maintaining any state house or charitable or other state institution or improvement, the petition shall be signed by the governor or such other person as he directs or as is provided by law.
(3) Under the provisions of this section, private property may be taken for private use, for private ways of necessity, and for reservoirs, drains, flumes, or ditches on or across the lands of others for agricultural, mining, milling, domestic, or sanitary purposes.
Source: G.L. § 1059. G.S. C. § 238. L. 1885: p. 200, § 1. L. 01: p. 173, § 1. R.S. 08: § 2416. C.L. § 6312. CSA: C. 61, § 2. CRS 53: § 50-1-2. L. 55: p. 368, § 1. C.R.S. 1963: § 50-1- 2. L. 64: p. 265, § 154.
Cross references: For condemnation by tax exempt agency, see § 39-3-134; for taking private property for private use, see § 14 of art. II, Colo. Const.; for taking property for public use, see § 15 of art. II, Colo. Const.; for the right-of-way for ditches and flumes, see § 7 of art. XVI, Colo. Const.
Notes of Decisions
Cited in
49
cases (
3 in the last 5 years), 1975–2025 · leading case:
Bly v. Story, 241 P.3d 529 (Colo. 2010).
Bly v. Story, 241 P.3d 529 (Colo. 2010).
· cites it 41× “*532 Condemnor brought this private condemnation action pursuant to article II, section 14 of the Colorado Constitution and section 38-1-102, seeking "to condemn a 20-foot wide easement over and across an existing dirt access road .”
Akin v. Four Corners Encampment, 179 P.3d 139 (Colo. Ct. App. 2007).
· cites it 16× “II, § 14 of the Colorado Constitution and § 38-1-102(3), C.R.S.2006. They also appeal the district court’s order denying their motion to amend their petition to substitute a pipeline company as the petitioner, and the district court’s orders awarding attorney fees to respondents.”
Minto v. Lambert, 870 P.2d 572 (Colo. Ct. App. 1993).
· cites it 10× “Section 38-1-102, C.R.S. (1982 Repl.Vol. 16A) provides that reasonable good faith efforts to negotiate and the failure to agree upon compensation is a prerequisite to the commencement of a condemnation proceeding.”
Bd. of Cnty. Commissioners v. Auslaender, 745 P.2d 999 (Colo. 1987).
· cites it 6× “The district court granted the Auslaenders' motion to dismiss the condemnation petition on two grounds: (1) since failure to agree upon compensation is a prerequisite to the commencement of a condemnation proceeding, see § 38-1-102, 16A C.R.S. (1982), the time between the…”
Precious Offerings Mineral Exch., Inc. v. McLain, 194 P.3d 455 (Colo. Ct. App. 2008).
· cites it 4× “II, § 14; see § 38-1-102(8), C.R.S.2007 ("Under the provisions of this section, private property may be taken for private use, for private ways of necessity, and for reservoirs, drains, flumes, or ditches on or across the lands of others for agricultural, mining, milling,…”
Story v. Bly, 217 P.3d 872 (Colo. Ct. App. 2009).
· cites it 8× “When those negotiations failed, Story commenced this action seeking a private way of necessity under article II, section 14 of the Colorado Constitution and section 38-1-102, C.R.S.2008. She sought to condemn a twenty-foot easement, ten feet on either side of the centerline of…”
City of Thornton v. Farmers Reservoir & Irrigation Co., 575 P.2d 382 (Colo. 1978).
· cites it 6× “"FAILURE-TO-AGREE" REQUIREMENT Section 38-1-102, C.R.S.1973, authorizes a municipality to file a petition in condemnation to acquire property for certain purposes when "the compensation to be paid for, in respect to property sought to be appropriated .”
Corp. v. Lembke, 2020 CO 73 (Colo. 2020).
· cites it 3× “2d at 520–23, we considered whether two federal oil and gas lessees could assert the power to condemn private property for private use (there, a private way of necessity) under article II, section 14 of the Colorado Constitution and under section 38-1-102(3), C.R.S. (2019). We…”
State Dep't of Highways, Div. of Highways v. Denver & Rio Grande W. R.R., 789 P.2d 1088 (Colo. 1990).
· cites it 8× “Colorado statute regarding private ways of necessity, section 38-1-102(3), 16A C.R.S. (1982), is identical to Article II, Section 14 and therefore does not provide guidance on who may condemn a private way of necessity or how the right may be exercised.”
Sheridan Redevelopment Agency v. Knightsbridge Land Co., 166 P.3d 259 (Colo. Ct. App. 2007).
· cites it 3× “" Section 38-1-102(1), C.R.S. 2006. This "good faith negotiation requirement is satisfied where the condemning authority makes a reasonable good faith offer to reach an agreement with the owner of the property and allows the owner sufficient time to respond.”
Glenelk Ass'n, Inc. v. Lewis, 260 P.3d 1117 (Colo. 2011).
· cites it 4× “Section 38-1-102 sets forth procedural requirements for all petitions in condemnation, including those in private condemnation.”
— Colo. Rev. Stat. § 38-1-102(1) — 19 cases
Bly v. Story, 241 P.3d 529 (Colo. 2010).
“*532 Condemnor brought this private condemnation action pursuant to article II, section 14 of the Colorado Constitution and section 38-1-102, seeking "to condemn a 20-foot wide easement over and across an existing dirt access road .”
Bd. of Cnty. Commissioners v. Auslaender, 745 P.2d 999 (Colo. 1987).
“The district court granted the Auslaenders' motion to dismiss the condemnation petition on two grounds: (1) since failure to agree upon compensation is a prerequisite to the commencement of a condemnation proceeding, see § 38-1-102, 16A C.R.S. (1982), the time between the…”
Sheridan Redevelopment Agency v. Knightsbridge Land Co., 166 P.3d 259 (Colo. Ct. App. 2007).
“" Section 38-1-102(1), C.R.S. 2006. This "good faith negotiation requirement is satisfied where the condemning authority makes a reasonable good faith offer to reach an agreement with the owner of the property and allows the owner sufficient time to respond.”
Story v. Bly, 217 P.3d 872 (Colo. Ct. App. 2009).
“When those negotiations failed, Story commenced this action seeking a private way of necessity under article II, section 14 of the Colorado Constitution and section 38-1-102, C.R.S.2008. She sought to condemn a twenty-foot easement, ten feet on either side of the centerline of…”
— Colo. Rev. Stat. § 38-1-102(3) — 13 cases
Bly v. Story, 241 P.3d 529 (Colo. 2010).
“*532 Condemnor brought this private condemnation action pursuant to article II, section 14 of the Colorado Constitution and section 38-1-102, seeking "to condemn a 20-foot wide easement over and across an existing dirt access road .”
Akin v. Four Corners Encampment, 179 P.3d 139 (Colo. Ct. App. 2007).
“II, § 14 of the Colorado Constitution and § 38-1-102(3), C.R.S.2006. They also appeal the district court’s order denying their motion to amend their petition to substitute a pipeline company as the petitioner, and the district court’s orders awarding attorney fees to respondents.”
Corp. v. Lembke, 2020 CO 73 (Colo. 2020).
“2d at 520–23, we considered whether two federal oil and gas lessees could assert the power to condemn private property for private use (there, a private way of necessity) under article II, section 14 of the Colorado Constitution and under section 38-1-102(3), C.R.S. (2019). We…”
— Colo. Rev. Stat. § 38-1-102(43) — 1 case
— Colo. Rev. Stat. § 38-1-102(8) — 2 cases
Bly v. Story, 241 P.3d 529 (Colo. 2010).
“*532 Condemnor brought this private condemnation action pursuant to article II, section 14 of the Colorado Constitution and section 38-1-102, seeking "to condemn a 20-foot wide easement over and across an existing dirt access road .”
Precious Offerings Mineral Exch., Inc. v. McLain, 194 P.3d 455 (Colo. Ct. App. 2008).
“II, § 14; see § 38-1-102(8), C.R.S.2007 ("Under the provisions of this section, private property may be taken for private use, for private ways of necessity, and for reservoirs, drains, flumes, or ditches on or across the lands of others for agricultural, mining, milling,…”
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