No. 88CA0828Colorado Court of Appeals.
Decided July 27, 1989. Rehearing Denied August 31, 1989. Certiorari Denied March 5, 1990 (89SC524).
Appeal from the District Court of Grand County Honorable Richard P. Doucette, Judge
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Cockrell, Quinn Creighton, Richard M. Foster, Todd A. Jansen, for Petitioner-Appellee.
Otten, Johnson, Robinson, Neff Ragonetti, P.C., David W. Stark, Kenneth K. Skogg, Kristen Mix Myer, for Respondents-Appellants.
Division IV.
Opinion by JUDGE REED.
[1] James E., Nancy I., and Frank E. Yust, together with My Ranch, a partnership, (Yusts) appeal the judgment of the district court which denied an award of attorney fees to them. We reverse. [2] This controversy arose out of a condemnation proceeding instituted in 1984 by John Billington seeking a way of necessity over the lands of the Yusts pursuant to Colo. Const. art. II, § 14, and § 38-1-102(3), C.R.S. (1982 Repl. Vol. 16A). [3] Billington is the owner of some 31 acres of land in Grand County, Colorado. It is bounded on the north, west, and south by the Yusts’ property. It is bounded on the east by land owned by E. Jedd Roe and his corporation. Until 1948, the Billington land and the Roe land were united in common ownership. At that time, access to this united parcel was provided by an adjacent public highway lying farther to the east. Once the parcel became separated by ownership, the property thereafter acquired by Billington became land-locked, with no access to any public road. [4] Billington’s original petition filed on January 13, 1984, sought condemnation of a way of necessity from the public highway, westerly across the Roe land, and across a small portion of the Yusts’ property. Thereafter, Billington, by amended petitions, sought condemnation of a right-of-way solely across the Yusts’ property with intended access to a secondary public road lying to the south. Although this proposed southerly right-of-way was considerably longer than that lying across the Roe property, it would avoid the expense of construction of a bridge across the Blue River which separated Billington’s property from Roe’s property. In response to the Yusts’ defense that Billington already was entitled to a common law right-of-way across the Roe property and that there was no “necessity” for condemnation, Billington again joined Roe and his corporation as parties to the proceeding, but persisted in his claim for condemnation solely across the Yusts’ property. [5] In a bifurcated court trial in May 1987, the trial court determined that Billington had the right of a reasonable, common law way of necessity across the Roe property arising out of the prior common ownership and subsequent severance of the Billington property by the common grantor. Accordingly, it dismissed Billington’s petition for condemnation of the Yusts’ property since there was no necessity therefor. [6] Based upon the trial court’s determination, the Yusts sought an award of attorney fees under § 38-1-122(1), C.R.S. (1988 Cum. Supp.). That statute provides, in pertinent part: [7] “If the court finds that a petitioner is not authorized by law to acquire real property or interests therein sought in aPage 198
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)
[8] Ultimately, the court refused to award the requested fees, and the Yusts here challenge that ruling. I.
[9] In support of the trial court ruling, Billington first argues that the statute is not applicable to him, contending that it authorizes attorney fees only in those instances in which the petitioner has no legal authority to seek condemnation. He argues that he has a statutory and constitutional right to seek a private way of necessity under Colo. Const. art. II, § 14, and § 38-1-102(3), C.R.S. (1982 Repl. Vol. 16A), and accordingly, he is authorized by law within the meaning of the statute. In sum, he argues that the statutory phrase “authorized by law” is synonymous with legal standing to seek condemnation. We decline to adopt this restricted meaning to the phrase.
II.
[11] At the time the condemnation proceeding was instituted in 1984, neither § 38-1-122(1) nor any other similar statute was in effect. It became effective as of July 6, 1985, nearly two years before trial of this matter on May 7 and 8, 1987.
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controversy preexisted the enactment of the legislation.
[19] We hold that, there being no expressed intent to delay the effective date of this remedial or procedural statute, it became effective immediately and applicable to existing litigation. See Suley v. Board of Education, 633 P.2d 482(Colo. 1981). [20] Hence, following the rule announced in Allchurch, supra, we conclude that the trial court’s initial order awarding attorney fees incurred by the Yusts from and after July 6, 1985, was correct, but that its supplemental order which vacated this award and denied all attorney fees was in error. [21] We find the other contentions of the parties to be without merit. [22] That portion of the judgment of the trial court denying attorney fees to the Yusts is reversed, and the cause is remanded with instructions to award to the Yusts the reasonable attorney fees incurred by them in the defense of this condemnation proceeding from and after July 6, 1985. [23] JUDGE SMITH and JUDGE DUBOFSKY concur.