Opinion
No. 77-935
Decided November 30, 1978. Rehearing denied January 4, 1979. Certiorari denied May 7, 1979.
In eminent domain proceeding, one member of the commission of three freeholders failed to view the subject property, and condemnor appealed claiming that the failure vitiated the commission's ascertainment of value and the judgment entered thereon.
Affirmed
1. EMINENT DOMAIN — Statutory Language — Commission of Freeholders — "After Viewing the Premises" — Permissive — Failure — One Commissioner — View Property — Not Vitiate — Ascertainment of Value. Language of condemnation statute directing that "after viewing the premises" the commission of freeholders shall ascertain its value is permissive and not mandatory in nature, and thus the failure of one of three commissioners to view condemned property did not vitiate their ascertainment of value or the judgment entered thereon.
Appeal from the District Court of Gunnison County, Honorable Fred Calhoun, Judge.
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 petitioners-appellants.
Gorsuch, Kirgis, Campbell, Walker Grover, Joseph M. Montano, for respondents-appellees.
The sole issue in this eminent domain proceeding is whether the failure of one of the commission of three freeholders to view the subject property vitiates the commission's ascertainment of value and the judgment entered thereon. We hold that it does not and therefore affirm the judgment.
McClure Venture owned property in Gunnison County. The condemnors needed part of that property to realign a state highway and therefore filed this proceeding. At the conclusion of the valuation hearing, the court told the three commissioners to view the premises. The commissioners informally agreed that they would do so later because the property was located some considerable distance from the site of the hearing. Two of them did view the premises, but because of the untimely death of his daughter, the third did not. This was called to the attention of the trial court in the motion for new trial, but that motion was denied.
[1] The condemnors' appeal is founded upon § 38-1-105(2), C.R.S. 1973, which states that:
"The commissioners] shall hear the proofs and allegations of the parties according to the rules of evidence and, after viewing the premises or other property and without fear, favor, or partiality, shall ascertain and certify proper compensation to be made to said owner . . . ." (emphasis added)
They contend that this language confers a joint obligation on the three commissioners to view the property, and makes the exercise of that duty a jurisdictional prerequisite to any valid ascertainment of value. However, we interpret the language of the statute as being permissive and not mandatory. See People ex rel. Johnson v. Earl, 42 Colo. 238, 94 P. 294 (1908). Significantly the statute does not direct that the viewing "shall" or "must" be conducted. Cf. County Commissioners v. Edwards, 171 Colo. 499, 468 P.2d 857 (1970). Consequently, we decline to overturn the commission's ascertainment of value and the judgment entered thereon.
Judgment affirmed.
JUDGE ENOCH and JUDGE KELLY concur.