Summary
explaining that de facto taking requirements are the condemnor's physical entry, a physical ouster of the property owner, a legal interference with the physical use, possession or enjoyment of the property, or a legal interference with the owner's power of disposition of the property
Summary of this case from U S West Commun. v. City of LongmontOpinion
No. 78-635
Decided December 7, 1978.
Landowners appealed from a judgment of the trial court dismissing their complaint seeking damages for inverse condemnation.
Affirmed
1. EMINENT DOMAIN — Inverse Condemnation — De Facto Taking — Requires — Physical Entry — Physical Ouster — Announcement — Impending Condemnation — Not Warrant — Award of Compensation. A de facto taking of property by a condemnor requires a physical entry by the condemnor, a physical ouster of the owner, a legal interference with the physical use, possession or enjoyment of the property or a legal interference with the owner's power of disposition of the property; consequently; the mere announcement of impending condemnation, even though it may well be coupled with substantial delay and damage, does not, in the absence of the acts which may be translated into an exercise of dominion and control by the condemning authority, constitute a taking so as to warrant awarding compensation.
Appeal from the District Court of Arapahoe County, Honorable Marvin W. Foote, Judge.
Berenbaum, Weinberger Susman, Charles P. Leder, for plaintiffs-appellants.
J. D. MacFarlane, Attorney General, David W. Robbins, Deputy Attorney General, Edward G. Donovan, Assistant Attorney General, Thomas W. Gibb, Special Assistant Attorney General, for defendants-appellees.
Plaintiffs appeal from a judgment of the trial court dismissing their complaint seeking damages for inverse condemnation. We affirm.
Plaintiffs filed a complaint in inverse condemnation alleging: (1) that the Colorado Department of Public Highways had determined that it would be necessary, desirable and to the best interest of the people if a portion of plaintiffs' property be taken for public use in the expansion of South Santa Fe Drive and the construction of an overpass on Belleview over South Santa Fe Drive; (2) that the defendant had publicized that an overpass would be constructed, which has made the sale or development of the property impossible; and (3) that the defendant has prepared maps showing such construction and commenced procedural processes required to obtain the necessary permits, approvals, and funding from the United States Government, and that as a result, even though they still hold the fee ownership, the property of the plaintiffs has been taken for public use without just compensation.
Upon motion by the Department of Highways, plaintiffs' complaint was dismissed. Plaintiffs contend that, while the fee ownership of the land remains in them, the defendant's announced intention to acquire the property amounts to a taking of property for public purposes without compensation as prohibited by the Colorado Constitution, Art. II, Sec. 15.
In considering a motion to dismiss a plaintiff's complaint for failure to state a claim upon which relief can be granted, the court must view the allegations of the complaint in the light most favorable to plaintiff. Bell v. Arnold, 175 Colo. 277, 487 P.2d 545 (1971).
[1] In City of Buffalo v. J.W. Clement Co., 28 N.Y.2d 241, 269 N.E.2d 895, where there was a delay in the actual taking by the condemning authority, the court held that:
"It is clear that a de facto taking requires a physical entry by the condemnor, a physical ouster of the owner, a legal interference with the physical use, possession or enjoyment of the property or a legal interference with the owner's power of disposition of the property."
It further stated:
"The mere announcement of impending condemnations, coupled as it may well be with substantial delay and damage, does not, in the absence of the acts which may be translated into an exercise of dominion and control by the condemning authority, constitute a taking so as to warrant awarding compensation." (emphasis in original)
We adopt this rule here, Since the Department of Highways has made no physical ouster of the owners from the property, and has not interfered in any way with the owners' power of disposition or use of the property, plaintiffs' complaint does not state a claim for relief, and the trial court properly dismissed it.
Judgment affirmed.
JUDGE PIERCE and JUDGE KELLY concur.