Daily Development for Monday, March 27, 2006
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri

CONDEMNATION; VALUATION; DOCTRINE OF INSEPARABILITY: Colorado Supreme Court will consider “doctrine of inseparability,” which would expand damages for injury to remainder of condemnee’s property in a partial taking by considering impact of entire project of which taken property is only a part.

Department of Transportation v. Marilyn Hickey Ministries, 2005 WL 2456948 (Colo. App. 2005), cert granted 3/20/06.

This case involved a dispute regarding condemnation of a parcel of land for a large highway construction project.  Part of the project involved erecting a concrete retaining wall on the condemned property, which limited passing motorists’ views of the property.  The landowner, a church, sought to receive compensation for the loss of view. 

The trial court found that the church could not receive damages for the loss of view into the property.  The Court of Appeals reversed that ruling, finding that the loss of view from the highway was compensable under Colorado law.  The law is well established that when a condemnee has suffered a partial taking, compensation for the reduction in value of the remaining property shall include all consequences that are the “natural, necessary and reasonable result” of the taking . . . “whether the reduction in value results from aesthetic damage or from some other cause . . . “

But Colorado precedent, based upon a 1918 Colorado Supreme Court case, limited the damage claim to the impact of the use carried our on the property separated by condemnation from the original parcel.  Apparently, the blockage in view was also affected by construction on adjacent property that had not been acquired from this condemnee.  The Church noted that other jurisdictions have developed the “doctrine of inseparability” to this situation.   The doctrine of inseparability allows for the compensation in partial condemnation for injury suffered as a result of improvements on adjoining land where “the use of the land taken constitutes an integral and inseparable part of a single use to which the land taken and other adjoining land is put.”  Allowing this method of compensation would allow the church to seek larger damages based on the retaining wall preventing passing motorists from seeing the church across other parcels of land adjacent to the church’s parcel.  The Court o!

 f Appe
als refused to apply the inseparability doctrine in this case, despite recent cases in other states applying the doctrine, and despite dicta in Colorado acknowledging the existence of the doctrine.

Recently, however, the Colorado Supreme Court has granted certiorari in this case, so we are likely to have a final ruling on the matter in Colorado.

Comment 1: In the current climate of hostility toward eminent domain, it is quite possible that we’ll start seeing some generous rulings by the courts in these cases.  Although the real hostility has been triggered by takings for economic development purposes, and not for public improvement, there is more than enough hostility to spill over toward highway and light rail builders.  The “glory days” of the highway engineers, when highways were seen as pumping life blood of commerce into undeveloped areas, is rapidly coming to an end.  (Likely, however, we’ll see a cycle where this perception again returns to the forefront.)

Comment 2:   Although we don’t have a final ruling, the editor was not aware of the “doctrine of inseparability,” and thought it worth noting for our service.  The editor wonders whether the doctrine also takes into account the impact of the increase in value to the property of the existence of the improvement, including the improvement of the entire project of which this taking was a part.  In the case of light rail and highways, the net impact of such development on market value of most properties would more than offset the reduction in value from reduction in sight lines if one took into account the entire highway or railroad system.  Where does “inseparability” separate?    

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