Shaklee v. District Court ex rel. County of Weld

HODGES, Chief Justice. In this original proceeding, we issued a rule to show cause why the order of the respondent district court granting Public Service Company of Colorado (Public Service) immediate possession pendente lite of certain real property owned by petitioners, Shaklee, should not be vacated. The order granting immediate possession was stayed by this court pending our disposition. We now rule that that order be vacated, and thus we make the rule absolute. Public Service filed a petition in eminent domain in the respondent district court seeking to acquire by condemnation two parcels of land owned by petitioners. Public Service alleged that the property is required for the construction of an electric transmission line. Public Service also sought an order for immediate possession pendente lite of the property, pursuant to the provisions of section 38-5-106, C.R.S. 1973 (1980 Supp.). Petitioners resisted condemnation and filed a motion to dismiss the petition in eminent domain. Petitioners’ principal contention in opposition to condemnation is that the land being sought by Public Service will not be used for a public purpose as required by Colorado’s Constitution, but is intended for the construction of a power line for the alleged private and sole use of Adolph Coors Company. Colo. Const. Art. II, sec. 14 states: “Private property shall not be taken for private use unless by consent of the owner, except for private ways of necessity, and except for reservoirs, drains, flumes or ditches on or across the lands of others, for agricultural, mining, milling, domestic or sanitary purposes.” During the hearing on the motion for an order of immediate possession, petitioners urged repeatedly that the respondent district court consider the question of whether the proposed use is a “public use” within the meaning of the Colorado Constitution. Colo. Const. Art. II, sec. 15 provides in relevant part: “Private property shall not be taken or damaged, for public or private use, without just compensation. . . . [Wjhenever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be really public shall be a judicial question _” In declining to consider the issue of public use, the respondent district court stated: “The only matter before the Court today is immediate possession and the amount of money that [Public Service] will be required to deposit as a condition of immediate possession, not those matters that you have raised at this state; and I think improperly, by the method you have chosen. This Court is not making any rulings on necessity or on public use. . . . [TJoday we are here for one reason, and that is to require [Public Service] to deposit as a condition of immediate possession.” The parties subsequently agreed by stipulation to an amount of money to be deposited by Public Service, see section 38-5-106, C.R.S. 1973 (1980 Supp.), and at the conclusion of the hearing the trial judge signed an order awarding immediate possession pen-dente lite to Public Service. Under Articles 1, 2, and 5 of Title 38, C.R.S. 1973, Public Service is authorized to acquire by condemnation interests in real property from private owners, provided, in- [717] ter alia, that the purpose for which the condemned property is sought is determined to be a public purpose. Colo. Const. Art. II, sec. 14; see also Potashnik v. Public Service Co. of Colorado, 126 Colo. 98, 247 P.2d 137 (1952). The question of whether a contemplated use is a public use is an issue for judicial determination. Colo. Const. Art. II, sec. 15 and Potashnik v. Public Service Co. of Colorado, supra. In this case, Public Service has attempted to invoke the provisions of section 38-5-106, C.R.S. 1973 (1980 Supp.), to obtain immediate possession of the petitioners’ property. That statute provides, in pertinent part: “At any time after jurisdiction has been obtained . . ., the petitioner [seeking condemnation], upon notice to the respondent [landowner] . . ., may move for an order for immediate possession. Upon such motion and after hearing, the court . . . may authorize the petitioner, upon payment into court or to the clerk thereof the amount determined by the court as probably sufficient to pay the sum that may ultimately be awarded as compensation and damages for the taking, if not in possession to take possession of such right-of-way, and if already in possession to maintain and keep such possession, and in all eases to use and enjoy such right-of-way during the pendency and until the final conclusion of such proceedings. . . . At such hearing for immediate possession, the court shall hear and dispose of all objections that are raised at that time concerning the motion for immediate possession, the legal sufficiency of the petition, or the regularity of the proceedings in any other respect. ” (Emphasis added.) Petitioners resisted the grant of immediate possession in the respondent district court, because that court had not and would not first consider and dispose of the petitioners’ objection to the condemnation. In Potashnik v. Public Service Co. of Colorado, supra, this court held that an order granting immediate possession pendente lite could only be granted in those cases where an order of condemnation could be properly entered. In that case, it was specifically held that: “The general right of eminent domain, under our Constitution, depends upon, first, legislative authority and, second, judicial approval of the purpose as a public use.” Accord, Buck v. District Court, Colo., 608 P.2d 350 (1980). See also Larson v. Chase Pipe Line Co., 183 Colo. 76, 514 P.2d 1316 (1973). In the instant case, the respondent district court did not deny petitioners’ right to a judicial determination of whether the proposed use of the land sought by Public Service is a public use, but ruled that such a determination need not be made prior to an award of immediate possession pendente lite. The issue of public use raised by the petitioners in this case should have been resolved by the respondent district court before it ruled on Public Service Company’s motion for immediate possession pendente lite. Public Service may not lawfully acquire immediate possession of any property pursuant to section 38-5-106, C.R.S. 1973 (1980 Supp.), unless that property could be lawfully acquired by the exercise of eminent domain. Potashnik v. Public Service Co. of Colorado, supra. One prerequisite to the lawful exercise of the power of eminent domain is that the use contemplated by the condemning party be a public use. Colo. Const. Art. II, sec. 14. When the issue of public use is raised as it was in this case, it must be determined judicially. Because petitioners’ land could not lawfully be condemned pending a judicial determination of the issue of public use, neither may immediate possession pendente lite be awarded. Potashnik v. Public Service Co. of Colorado, supra. Section 38-5-106, C.R.S. 1973 (1980 Supp.), will not be construed to short-circuit the orderly procedure to be utilized in matters of eminent domain. The final sentence of that statute states: “At such hearing for immediate possession, the court shall hear and dispose of all objections that are raised [718] at that time concerning the motion for immediate possession. ...” We interpret this statutory language as a clear mandate to the respondent district court in this case to determine the issue of public use prior to awarding immediate possession pendente lite to Public Service. See generally Interstate Trust Bldg. Co. v. Denver Urban Renewal Authority, 172 Colo. 427, 473 P.2d 978 (1970). Our review of the record reflects that, although the petition which initiated this original proceeding did not list the Weld County District Court or the Honorable John J. Althoff as parties, and did not request relief with respect to them, our rule to show cause issued April 9, 1981, was directed to “Clerk of the District Court, Weld County, Honorable John J. Althoff, District Court Judge.” The record reflects it was also served on them. Thus the court and judge had notice and an opportunity to respond. The named respondent Public Service Company of Colorado is a party to the underlying proceeding and is the party whose interests are adversely affected by making the rule absolute. Under these circumstances, the failure to name the court and judge as respondents in the caption is a technical defect at most and was appropriately remedied by later correction of the caption on this court’s own motion. There is no jurisdictional defect here. Accordingly, we make our rule absolute by directing that the order for immediate possession pendente lite be vacated. The cause is returned to the respondent district court for continuation of proceedings in consonance with the views expressed herein. ERICKSON and QUINN, JJ., dissent.