author: Justice BENDER Justice KOURLIS

text:
    E-470 PUBLIC HIGHWAY AUTHORITY, Petitioner-Appellee v. Steven A. REVENIG, Trustee, Successor Trustee to Stephen A. Hellerstein; and Howard L. Farkas, Respondents-Appellants.
    No. 03SA356.
    Supreme Court of Colorado, En Banc.
    June 14, 2004.

      Duncan, Ostrander & Dingess, P.C., Robert R. Duncan, Donald M. Ostrander, James Birch, Special Counsel, Denver, Colorado, Attorneys for Petitioner-Appellee.
    Grimshaw & Hairing, P.C., Wayne B. Schroeder, Jody Harper Alderman, Opper-man & Schell, P.C., William M. Schell, Julie A. Rech, Denver, Colorado, Attorneys for Respondents-Appellants.
    Ken Salazar, Attorney General, Larry D. Tannenbaum, Senior Assistant Attorney General, Michael R. McCormick, Assistant Attorney General, Denver, Colorado, Attorneys for Amicus Curiae State of Colorado.
   Justice BENDER

delivered the Opinion of the Court.

INTRODUCTION

In this appeal, we review the trial court’s decision upholding the constitutionality of a takings compensation statute that requires a trial court to reduce by up to fifty percent an award of compensation for property taken in highway acquisitions by the amount of special benefits to the landowner’s remaining property. We affirm.

As part of the E-470 highway project, respondent E-470 Public Highway Authority condemned over seventy acres of the petitioning landowners’ 351-acre parcel. A commission of landholders found that the value of the property taken was $1,323,691.15 and also found that the petitioners’ remaining property, the portion that was not condemned, was specially benefited by $297,000 by virtue of the new highway. When a landowner’s property is condemned as part of a highway project, the highway may directly increase the value of the landowner’s remaining property through specific improvements such as better access and changes in available uses, which are known as special benefits.

Following the mandate of section 38-1-114(2)(d), 10 C.R.S. (2003), the takings compensation statute, the trial court applied the $297,000 in special benefits determined by the commission by first reducing the amount of damages to the petitioners’ remaining property from $100,000 to zero, and then reducing the compensation for the property taken by the $197,000 surplus in special benefits.

We affirm the trial court’s holding that section 38-1-114(2)(d) does not violate article II, section 15 of the Colorado Constitution, which requires that landowners receive just compensation for property taken or damaged. Article II, section 15, by its terms, entitles a landowner to the value of which he has been deprived. It does not require cash to be paid for property taken or damaged. In construing article II, section 15, this Court has never held that “just compensation” requires payment only in cash. Such a holding would contradict, in principle, over 100 years of precedent affirming special benefits as a form of just compensation when applied to the remaining property.

In 1987, the Colorado General Assembly enacted section 38-1-114(2)(d), which requires a trial court to apply special benefits not only to reduce the amount of damages to the landowner’s remaining property but also to reduce the landowner’s compensation for the property taken.

The General Assembly may provide the method for calculating just compensation when a landowner’s property is taken in a condemnation proceeding provided that the method satisfies the guarantee of our just compensation clause. Before the taking, the landowner owns the entire property, which includes the value of the remaining property and the value of the land taken. After the taking, the landowner possesses the value of the remaining property plus compensation for the land taken, which shall be reduced by the value of any surplus in special benefits to the remaining property according to the mandate of section 38-1-114(2)(d). In sum, the value of the payment received plus the value of the remaining property possessed by the landowner after the taking, enhanced by the special benefits, is equivalent to the value of the landowner’s property prior to the taking. Thus, section 38-1-114(2)(d) does not conflict with the just compensation guarantee of our constitution because the landowner receives the value of which he has been deprived. Accordingly, we defer to the General Assembly’s method of calculating compensation and hold that this statute is constitutional.

In addition, we hold that the trial court’s application of section 38—1—114(2)(d) in this case did not violate article II, section 15. As a result of the taking, the petitioners were owed $1,323,691.15 for the property actually taken and $100,000 for damages to their remaining property, which comes to a total of $1,423,691.15. As compensation, they received a cash payment of $1,126,691.15 and $297,000 in special benefits, for a total of $1,423,691.15 received. Thus, the petitioners received the value of which they had been deprived, as required by article II, section 15 of our constitution.

Therefore, we affirm the decision of the trial court and return this case to that court for further proceedings consistent with this opinion.

FACTS AND PROCEEDINGS BELOW

Petitioners Steven A. Reveiiig, trustee, and Howard L. Farkas owned approximately 351 acres of undeveloped land in Aurora, Colorado. Through condemnation proceedings, respondent E-470 Public Highway Authority (“E^L70”) subsequently acquired from the petitioners 60.9 acres in fee and 12.6 acres in easements for its highway project.

A commission of landholders then deter7 mined the value of the property taken and the effect of the highway project on the remaining property. After a trial, the commissioners assessed the value of the property taken at $1,323,691.15 and the value of special benefits to the remaining property at $297,000. The commissioners had been instructed that special benefits resulting from the E-470 highway project “must result directly in a benefit to the [remaining property] and be particular to it” and that such benefits “are to be measured by the increase, if any, in the reasonable market value of the [remaining property] due to the construction of the E-470 Highway.”

The commission’s assessments of the value of the property taken and the value of the special benefits were not appealed; however, its assessment of the amount of damages to the remaining property was appealed. After this Court held that the commission’s determination of damages to the remaining property was not supported by the evidence and was excessive as a matter of law, Jagow v. E-470 Pub. Highway Auth., 49 P.3d 1151 (Colo.2002), petitioners accepted a remittitur of $100,000 in damages to the remaining property on remand. The trial court applied the $297,000 in special benefits by reducing the amount of damages to the petitioners’ remaining property from $100,000 to zero, leaving a surplus of $197,000 in special benefits. Applying section 38—1—114(2)(d), the trial court then reduced the $1,323,691.15 value of the property taken by the $197,000 surplus in special benefits, leaving petitioners with a total condemnation award of $1,126,691.15.

The petitioners appealed to the court of appeals, where the parties filed a stipulated motion to transfer the case to this Court pursuant to section 13-4-109(1)(a), 5 C.R.S. (2003), because issues of significant public interest were at stake. We accepted jurisdiction of the case to determine whether section 38—1—114(2)(d) violates article II, section 15 of the Colorado Constitution.

ANALYSIS

Section 38 — 1—114(2)(d) Does Not Violate Article II, Section 15 of the Colorado Constitution

Petitioners argue that section 38-1-114(2)(d), which requires the trial court to reduce a landowner’s compensation for property taken by the amount of special benefits to the remaining property, conflicts with the just compensation guarantee of article II, section 15 of the Colorado Constitution. We disagree.

We review the trial court’s assessment of the constitutionality of section 38-1-114(2)(d) de novo. Gen. Motors Corp. v. City & County of Denver, 990 P.2d 59, 67 (Colo.1999). We begin with the presumption that section 38-1-114(2)(d) is constitutional, and we must uphold the statute unless the petitioners prove it is unconstitutional beyond a reasonable doubt. People v. Vasquez, 84 P.3d 1019, 1021-22 (Colo.2004). Further, we must uphold the constitutionality of a statute unless a “clear and unmistakable” conflict exists between the statute and a provision of the Colorado Constitution. City of Greenwood Vill. v. Petitioners for Proposed City of Centennial, 3 P.3d 427, 440 (Colo.2000).

The General Assembly may provide the method for calculating just compensation when a landowner’s property is taken in a condemnation proceeding provided that the method satisfies the constitutional guarantee of just compensation. Colo. Midland Ry. v. Jones, 29 F. 193, 193 (D.Colo.1886) (“The legislature may provide under what circumstances and in what manner this compensation shall be determined .... ”); see also Gustavus Adolphus Coll. v. Dep’t of Transp., 714 A.2d 802, 803 (Me.1998) (“In the absence of any constitutional limitations, the Legislature may prescribe the terms, conditions and methods for the evaluation of just compensation for the taking of private property.”); State Highway Comm’n v. Greensboro City Bd. of Educ., 265 N.C. 35, 143 S.E.2d 87, 92 (1965) (“It is the exclusive prerogative of the Legislature — limited only by our organic law which requires that just compensation shall be paid for the land so appropriated — to prescribe the method of taking land for public use.”); Kellett v. Fulton County, 215 Ga. 551, 111 S.E.2d 364, 365 (1959) (“The method of ascertaining what is just and adequate compensation is [a] matter for adoption and regulation by the legislature.”).

Article II, section 15 provides, “Private property shall not be taken or damaged, for public or private use, without just compensation.” Colo. Const. art. II, § 15. Accordingly, we must decide whether the General Assembly’s method of determining compensation in section 38-1-114(2)(d) conflicts with the guarantee of just compensation contained in article II, section 15. Because the phrase “just compensation” is not defined by our constitution, we turn to our case law construing article II, section 15 for guidance.

In Alexander v. City & County of Denver, this Court concluded that the just compensation guarantee entitles a landowner whose property is taken or damaged “to receive the value of what he has been deprived of, and nothing more.” 51 Colo. 140, 144, 116 P. 342, 344 (1911) (holding that a condemnation award for property taken reduced by the amount of a special assessment did not violate the just compensation guarantee of article II, section 15). In recent years, we have reaffirmed the definition of just compensation articulated in Alexander. See, e.g., E-470 Pub. Highway Auth. v. 455 Co., 3 P.3d 18, 23 (Colo.2000); City of Englewood v. Weist, 184 Colo. 325, 331, 520 P.2d 120, 123 (1974). Another recent formulation of our basic test for just compensation is that the landowner “must be put in as good [a] position pecuniarily as if the property had not been taken.” Fowler Irrevocable Trust 1992-1 v. City of Boulder, 17 P.3d 797, 802 (Colo.2001).

Both parties agree that reducing an award of compensation by the amount of special benefits to the remaining property does not, in itself, conflict with the just compensation guarantee in article II, section 15 of our ■constitution. In 1883, this Court stated that special benefits may be applied to reduce an award of compensation for damages to a landowner’s remaining property, and since that time we have approved this method of calculating damages as a form of just compensation under article II, section 15. City of Denver v. Bayer, 7 Colo. 113, 127-28, 2 P. 6, 15 (1883) (“If, by reason of the proximity of the railroad thereto, plaintiffs property is in any way peculiarly benefited ..., such benefit should be considered and the value thereof allowed in determining the amount of his compensation.”); see also Boxberger v. State Highway Comm’n, 126 Colo. 526, 534-35, 251 P.2d 920, 925 (1952) (discussing former takings compensation statute that allowed special benefits to be applied to reduce compensation for damages to. remaining property, but not compensation for property taken); Denver Joint Stock Land Bank v. Bd. of County Comm’rs, 105 Colo. 366, 371, 98 P.2d 283, 286 (1940) (“The benefits which may be set off against damages, where part of a tract of land, as in the instant case, is taken, are those accruing to the residue of the tract- from the construction of the improvement.”).

Because special benefits are a valid form of compensation under article II, section 15, just compensation is not, as the petitioners argue, synonymous with a cash payment. The language of article II, section 15, by its terms, does not require cash to be paid for property taken or damaged; rather, it requires that “just compensation” be provided. In construing article II, section 15, this Court has never held that “just compensation” requires payment only in cash. Such a holding would contradict, in principle, over 100 years of precedent affirming special benefits as a form of just compensation when applied to the remaining property.

When a landowner’s property is condemned as part of a highway project, the project may result in special benefits, which are specific improvements to the landowner’s remaining property. Such benefits directly increase the fair market value of a landowner’s remaining property, ■ and their value can be calculated with reasonable certainty. See 455 Co., 3 P.3d at 23; Denver Joint Stock Land Bank, 105 Colo. at 371, 98 P.2d at 286; see also State ex rel. State Highway Comm’n. v. Tate, 592 S.W.2d 777, 779 (Mo.1980) (Special benefits include such improvements as “availability for new or better uses, facilities for ingress and egress, improved drainage, sanitation, [and] flood protection”; “paradigm examples” of special benefits in highway acquisitions are “changes in available uses or in the facilities for direct access.”).

In 1987, the Colorado General Assembly adopted a new method of calculating the compensation owed to a landowner in highway acquisitions. Section 38^-1 — 114(2)(d) provides that compensation for property taken for or damaged by a highway project shall be reduced by the amount of any special benefits resulting from the project, but not to exceed fifty percent of the total amount of compensation for property taken. If a highway project directly increases the value of the landowner’s remaining property, the trial court shall apply this increased value to reduce the landowner’s compensation for the property that is taken:

[For a highway acquisition], the compensation for the property taken and damages to the residue of said property shall be reduced by the amount of any special benefits which result from the improvement or project, but not to exceed fifty percent of the total amount of compensation to be paid for the property actually taken.

§ 38—1—114(2)(d). The General Assembly’s new method requires a trial court to apply special benefits not only to reduce the amount of damages to the landowner’s remaining property, which has long been approved as a form of just compensation under article II, section 15, but also to reduce the amount of compensation for property taken, which we have never before tested against our constitutional guarantee of just compensation.

Modern highway systems include many features not envisioned within the common understanding of the term “highway” in past generations, such as complex interchanges, high-occupancy vehicle lanes, park-and-ride facilities, and electronic message boards. The General Assembly enacted the takings compensation statute to reflect the complex nature of modern highway systems. In so doing, the General Assembly attempted to strike a balance between the interests of individual landowners whose property is taken and the interests of the taxpaying public. This statute was intended not only to ensure that landowners receive adequate monetary compensation for property taken, but also to allow the monetary compensation to be reduced by a reasonable amount where the price of land in the path of a proposed highway has been increased by virtue of the public improvement. The legislature determined that the value of land in the path of a proposed highway may be driven up by the actions of speculators, who may know the general location of a new highway years in advance of construction. The State Highway Department estimated that by allowing compensation for property taken to be reduced by the value of the special benefits to the remaining property, the impact of land speculation on highway projects could be diminished. See Hearings on S.B. 27 before the Senate Transportation Committee, 56th Gen. Assembly, 1st Reg. Sess. (Jan. 27, 1987) (statement of State Highway Comm’r Hana-van); Statement on S.B. 27, 56th Gen. Assembly, 1st Reg. Sess. (Apr. 16, 1987) (statement of bill sponsor Rep. Berry before Colo. House of Reps.). It is the General Assembly’s prerogative to balance these interests between the landowner and the taxpaying public in determining the compensation owed to a landowner whose property is taken, provided that its calculus falls within the broad parameters of the Colorado Constitution.

Article II, section 15 lists two ways in which a landowner may be deprived of property, either by being “taken” or by being “damaged.” By .its terms, the provision does not require different forms of compensation for these different types of property deprivations. Instead, it provides that a single form of compensation, “just compensation,” is required for both takings and damages.

When part of a landowner’s property is condemned for a highway project, the results to the landowner are a detriment in the form of a taking of property and, in some cases, a benefit in the form of the increased value of the remaining property. These offsetting consequences to separate parcels arise from a single transaction, the-highway project. In addition, these • offsetting consequences accrue to a single landowner. As a result, allowing the award of compensation for the property taken to be reduced by the amount of special benefits to the remaining property, even though the offsetting detriment and benefit arise from different parcels, does not conflict with article II, section 15.

Before the taking, the landowner owns the entire property, which includes the value of the remaining property and the value of the land taken. After the taking, the landowner possesses the value of the remaining property plus compensation for the land taken, which shall be reduced by the value of any surplus in special benefits to the remaining property according to the mandate of section 38-1-114(2) (d). In sum, when an award of compensation for property taken is reduced by the amount of special benefits, the value of the payment received plus the value of the land still possessed by the landowner after the taking, enhanced by the special benefits, is equivalent to the value of the landowner’s property prior to the taking. Thus, the landowner receives “the value of what he has been deprived of, and nothing more.” Alexander, 51 Colo. at 144, 116 P. at 344. In other words, the landowner is placed in “as good [a] position pecuniarily as if the property had not been taken.” Fowler, 17 P.3d at 802.

Thus, the landowner receives just compensation, and there exists no conflict between the takings compensation statute and article II, section 15 of the Colorado Constitution. Applying both the presumption of constitutionality and the requirement that the landowner must prove the statute unconstitutional beyond a reasonable doubt, we defer to the General Assembly’s method for calculating just compensation in section 38—1—114(2)(d) and hold that this statute is constitutional.

Petitioners make three arguments to support the position that just compensation for property taken requires payment only in cash. We are not persuaded.

First, petitioners argue that we should follow the majority of states, which do not permit an award of compensation for property taken to be reduced by the amount of special benefits to the remaining property. However, we note that both federal law and a substantial minority of states allow compensation for property taken to be reduced by the amount of special benefits to the remaining property. Although there is a substantial amount of authority on both sides of this issue, our decision does not rest on the reasoning of either the majority or minority approach. Rather, our decision rests on our conclusion that the statute does not conflict with Colorado’s just compensation clause, on the heavy burden of proof necessary to hold the statute unconstitutional, and on deference to the General Assembly’s method for calculating a landowner’s compensation for highway condemnation.

Second, petitioners argue that according to our case law construing the just compensation clause, they are entitled to payment only in cash. However, the cases relied on by petitioners stand only for the proposition that they are entitled to compensation for the. fair market value of the property taken. In this ease, the petitioners received the fair market value of their property, taking into account the special benefits to the remaining property.

Our conclusion that just compensation does not require payment only in cash is consistent with the U.S. Supreme Court’s interpretation of the ■' federal just compensation clause. That Court stated that “n[ ]o decision of this Court holds that compensation other than money is an inadequate form of compensation under eminent domain statutes.” Blanchette v. Conn. Gen. Ins. Corps., 419 U.S. 102, 150, 95 S.Ct. 335, 42 L.Ed.2d 320 (1974). In Bauman v. Ross, the Court addressed the same issue before us now and held that the Fifth Amendment guarantee of just compensation does not conflict with reducing compensation for property taken by the amount of special benefits to the remaining property. 167 U.S. 548, 574-75, 17 S.Ct. 966, 42 L.Ed. 270 (1897). In so holding, the Bauman Court rejected the view that cash payment is the only permissible form of just compensation by stating 'that “the constitution does not require that the value should be paid, but that just compensation should be given.” Id. at 570, 17 S.Ct. 966.

Third, petitioners argue that our use of the term “pecuniarily” in dicta in Fowler implies that just compensation requires payment only in cash. Fowler, 17 P.3d at 802 (“[T]he owner must be put in as good [a] position pecuniarily as if the property had not been taken.”). The term “pecuniarily” means in monetary terms, i.e., in terms of fair market value. See XI Oxford English Dictionary 417 (2d ed.1989) (defining “pecuniarily” as “in respect of money”). This definition is consistent with our use of the term in Fowler, a case in which the form of compensation for the taking was not in dispute; rather, the case addressed the amount of compensation due a landowner for a temporary taking. 17 P.3d 797. Moreover, the U.S. Supreme Court case from which we borrowed the quote containing the term “pecuniarily” used it to connote fair market value. Thus, we conclude that Fowler stands for the accepted proposition that a landowner must receive the fair market value of property taken, which the petitioners in this case received in cash plus special benefits.

Section 38-l-114(2)(d), as Applied in this Case, Did Not Violate Article II, Section 15 of the Colorado Constitution

Having concluded that section 38-1-114(2)(d) does not conflict with the constitutional guarantee of just compensation under article II, section 15, we next consider whether the statute, as applied in this case, violated article II, section 15. A statute that is constitutional on its face may be unconstitutional as applied. People v. Albrecht, 145 Colo. 202, 208, 358 P.2d 4, 8 (1960).

It is undisputed in this case that as a result of E-470’s highway project, the petitioners were specially benefited by $297,000, and that $100,000 of those benefits wére used to reduce the amount of damages to their remaining property, leaving a surplus of $197,000 in special benefits. Following section 38-1-114(2)(d), the trial court used this $197,000 surplus to reduce the petitioners’ payment for the property taken.

Petitioners argue that they are entitled to $197,000 in cash in addition to the surplus of $197,000 in special benefits received. However, we have already established that under article II, section 15, the petitioners were entitled to receive the value of which they were deprived and that just compensation is not synonymous with a cash payment. In this case, petitioners received the compensation to which they were entitled.

As a result of the taking, the petitioners were owed $1,323,691.15 for the property actually taken and $100,000 for damages to their remaining property, which comes to a total of $1,423,691.15. As compensation, they received a cash payment of $1,126,691.15 and $297,000 in special benefits, for a total of $1,423,691.15 received. Thus, the petitioners received the value of which they had been deprived, as required by article II, section 15 of our constitution. Accordingly, we hold that the trial court’s application of section 38—1—114(2)(d) to the facts of this case did not violate article II, section 15.

Conclusion

For the reasons stated above, we affirm the decision of the trial court and return this case to that court for further proceedings consistent with this opinion.

Justice KOURLIS dissents.

Justice KOURLIS

dissenting.

Article II, Section 15 of the Colorado Constitution demands that a landowner whose property is condemned receive “just compensation” for that property. Deducting from that payment some amount attributable to intangible benefits that may inure to a separate piece of property violates that guarantee of just compensation. Accordingly, in my view, section 38—1—114(2)(d), 10 C.R.S. (2003), is unconstitutional on its face and as applied in this case. Therefore, I respectfully dissent from the majority opinion.

I. Under Colorado Law, the Statute is Unconstitutional

The issue we confront today is a matter of state law, uniquely shaped and mandated by the language of Colorado’s own constitution. Our constitution requires that “[pjrivate property shall not be taken or damaged, for public or private use, without just compensation”. Colo. Const. art. II, § 15. Interpreting that constitutional provision, this court has consistently held that just compensation means monetary payment. See Swift v. Smith, 119 Colo. 126, 201 P.2d 609, 615 (1949); Leadville Water Co. v. Parkville Water Dist., 164 Colo. 362, 436 P.2d 659, 660 (1967). Prior to the passage of section 38-1-114(2)(d) and its specific provisions related to highway acquisition, there was no question in Colorado but that special benefits could be set off against damages only, but not against the value of the land taken. Boxberger v. State Highway Comm’n, 126 Colo. 526, 251 P.2d 920, 925 (1953); Denver Joint Stock Land Bank v. Bd. of County Comm’rs, 105 Colo. 366, 98 P.2d 283, 286 (1940). The landowner was entitled to the full value, in monetary form, of the land actually taken. Indeed, we have even specifically held that a landowner need not accept substitute benefits in lieu of compensation for property taken. Great W. Ry. Co. v. Ackroyd, 44 Colo. 454, 98 P. 726, 727 (1908); Burlington & C.R. Co. v. Schweikart, 10 Colo. 178, 14 P. 329, 332 (1887).

Hence, we have a constitution in Colorado that guarantees just compensation to the owner of property taken without his consent, and a history of case law that “jealously guard[s]” that right. Lamborn v. Bell, 18 Colo. 346, 32 P. 989, 991-92 (1893).

Despite the majority’s assertions that this court has endorsed non-monetary just compensation in the past, maj. op. at 1042, no case has ever held that just compensation for property physically taken could be computed other than by dollars paid. In fact, as recently as 2001,'this court held that just compensation requires that “the owner must be put in as good position pecuniarily as if the property had not been taken.” Fowler Irrevocable Trust 1992-1 v. City of Boulder, 17 P.3d 797, 802 (Colo.2001) (quoting U.S. v. General Motors Corp., 323 U.S. 373, 379, 65 S.Ct. 357, 89 L.Ed. 311 (1945)) (emphasis added). The plain meaning of the term pecuniary, as well as its dictionary definition, equates to monetary compensation, not some intangible form of special benefits. See The Concise Oxford Dictionary 1006 (9th ed.1995) (pecuniary means “of, concerning, or consisting of, money.”). The cases to which the majority cites stand for the proposition that benefits may be offset against damages as to residual property — a completely different concept than the one the majority addresses today.

It-is, of course, indisputable that this court must defer to the General Assembly and must hold a statute constitutional unless the petitioners are able to demonstrate that it is unconstitutional beyond a reasonable doubt. Maj. op. at 1041. Hence, my inquiry is simply whether this is, as the majority suggests, a matter appropriately conferred to the legislature’s discretion in prescribing the terms, conditions and methods for the evaluation of just compensation, or whether it is a matter that cuts to the heart of just compensation in violation of the constitution. In my view, it is the latter.

For that conclusion, I rely upon three precepts: A) landowners are entitled to monetary compensation in Colorado and special benefits do not constitute money; B) section 38-l-114(2)(d) creates disparate and unfair results in measuring compensation; and C) section 38-l-114(2)(d) is arbitrary in that-it applies only to highway projects, not to other takings, and it arbitrarily reduces the value of the land taken by up to fifty percent, but not more.

A.

Just compensation means the reasonable market value of the property taken — the price it would bring if sold in the open market. Goldstein v. Denver Urban Renewal Auth., 192 Colo. 422, 560 P.2d 80, 82-83 (1977). Section 38-1-114(2)(d) directs that the monetary condemnation award payable to a landowner whose property is condemned must be reduced by any special benefits attributable to remainder property, up to fifty percent of the total award. The undeniable impact of that statute is to create a situation in which a landowner may receive only one-half of the 'monetary value of the condemned property. The majority concludes otherwise, relying on cases such as Bauman v. Ross, 167 U.S. 548, 17 S.Ct. 966, 42 L.Ed. 270 (1897), for the proposition that just compensation need not be monetary, and that, therefore, the increase in value to the landowner’s remaining property may properly be calculated into the total award for purposes of reaching “just” compensation.

Initially, I would observe that Bauman, in 1897, looked to an “overwhelming number of decisions in the courts of the several states ... [that] support this view....” Id. at 977. In reality, most of the states upon which the Court relied for that proposition have since reversed course. More importantly, in recent times, the Supreme Court itself has specifically equated just compensation to monetary compensation. U.S. v. Miller, 317 U.S. 369, 373, 63 S.Ct. 276, 87 L.Ed. 336 (1943) (Just compensation means “the full and perfect equivalent in money of the property taken.”) (emphasis added); U.S. v. Reynolds, 397 U.S. 14, 16, 90 S.Ct. 803, 25 L.Ed.2d 12 (1970) (stating that '“just compensation means the full monetary equivalent of the property taken”); Phillips v. Washington Legal Found., 524 U.S. 156, 177, 118 S.Ct. 1925, 141 L.Ed.2d 174 (1998) (same). The majority’s position today does not conform to this modern trend. Thus, I cannot agree that “federal law and a substantial minority of states allow compensation for property taken to be reduced by the amount of special benefits to the remaining property.” Maj. op. at 1044.

Special benefits to remainder property have no place in the just compensation calculus for property actually taken. There is and can be no special benefit that accrues to the parcel of property being condemned. That property provides no benefit at all to the landowner — indeed, the landowner will no longer own it at the conclusion of the condemnation proceeding. Because of that simple proposition, the condemning authority has traditionally only beqn entitled to introduce evidence regarding benefits if the landowner is claiming damage to remainder property. Julius L. Sackman, Nichols on Eminent Domain § 8A.02[5] (3d ed.2003). The focus is on the damage and benefit to the remainder property' — -not on how those damages or benefits impact the property being condemned.

It is for that reason that the majority of states around the nation follow the rule that special benefits may be set off against, or deducted from, damages to the remainder property but not to offset compensation due for the property taken. Sackman, supra, § 8A.02[6]. Most of those states have statutes to that effect, and the courts have therefore not needed to evaluate the constitutionality of a statute that provides otherwise. See e.g., Utah Code Ann. § 78-34-10 (2003); Wyo. Stat. Ann. § 1-26-706 (Michie 2003).

However, a number of other state courts around the nation have directly held that it would be unconstitutional to permit the payment of something less than the market value of the land actually taken. The courts reason that imposing upon landowners the deduction associated with uninvited and perhaps never-realized benefits is inconsistent with principles of just compensation.

Under the majority’s construction, a landowner is not only required to give up the condemned portion of his property, but would also be forced to sell the remainder property in order to be made whole. Specifically, the landowner recognizes no gain on the remainder property unless or until he sells it. That gain may be illusory; it may be over-stated; it may be under-stated. In any event, it does not relate to the property taken, for which the condemning entity owes that landowner just and fair value.

B.

Second, the statute creates unfair outcomes. In a hypothetical situation, three landowners could border the new highway construction project and could experience completely different economic outcomes. If all of landowner A’s property is necessary to the project, he will receive the fair market value of that property free of any deductions. If none of landowner B’s property is necessary to the project, but he will receive a special benefit attributable to the project in the form of an access outlet, he will enjoy the full advantage of that benefit without any negative economic consequences. It is only landowner C, who both has property being taken and also remainder property, who will be forced to pay for the benefit to his remaining property by way of deduction from the fair market value of the property condemned. That outcome, in the words of a New York appellate court, would result in an “unconstitutionally discriminate exercise of taxing power in favor of a neighboring owner who suffers no loss of land, but benefits by the public improvement which led to the taking.” Chiesa v. State, 43 A.D.2d 359, 351 N.Y.S.2d 735, 737 (N.Y.App.Div.1974).

C.

Lastly, the statute is inherently arbitrary. It reduces the compensation due to a landowner whose property is being taken for highway construction purposes, while preserving just compensation for other eon-demnees. The statute begins by providing in pertinent part that:

In estimating the value of all property actually taken, the true and actual value at such time shall be allowed and awarded. No deduction therefrom shall be allowed for any benefit to the residue of said property.. In estimating damages occasioned to other portions of the claimant’s property or any part thereof other than that actually. taken, the value of the benefits, if any, may be deducted therefrom. In all cases the owner shall receive the full and actual value of all property actually taken. In ease the benefit to the property not actually taken exceeds the damages sustained by the owner to the property not actually taken, the owner shall not be required to pay or allow credit for such excess.

§ 38-1-114(1).

The statute goes on, then, to create a series of special exceptions applicable only to highway acquisitions. Only in such context may compensation for the property taken and damages to the residue of the property be diminished by the amount of special benefits attributable to the project. § 38-1-114(2).

Nowhere in the constitution do I find an article that creates exceptions for highway acquisition. Just compensation is due to a landowner irrespective of' the identity of the condemnor or nature of the purpose for which condemnation is being undertaken. It is not susceptible to different definitions in different contexts, or to an arbitrary floor or ceiling.

Similarly, the statute, without any explanation or rationale, provides that the deduction may not exceed fifty percent of the total condemnation award. § 38 — 1—114(2)(d). Presuming that the purpose of that section is to save tax dollars by reducing highway expenditures or in the alternative to prevent landowners from receiving a windfall, limiting the deduction to fifty percent is not logically related to the achievement of either of these goals. For example, if fifty acres of a 100-aere ranch (with a fair market value of $100,000) was condemned and the other fifty acres remained, but received special benefits in the amount of $100,000, under the majority’s analysis, the landowner is entitled to zero dollars in just compensation “and nothing more.” Maj. op. at 1041. However, when the fifty percent deduction rule is applied, the landowner would still receive $50,000 in compensation. Clearly if just compensation can consist of benefits and not dollars, then the landowner should, under the majority approach, receive nothing. The $50,000 would be a windfall. Hence, the arbitrary fifty percent limitation on deduc-. tions itself undermines any logical understanding of the purpose and application of the statute.

II. Conclusion

I read section 38 — 1—114(2)(d) as a direct affront to Article II, Section 15 of the Colorado Constitution. It redefines just compensation under the constitution in such a way as to allow non-monetary compensation for a taking, which contravenes decades of this court’s precedent. It further applies that new definition only to landowners whose property is being taken for highway construction, and then creates an artificial maximum amount of the deduction against the condemnation award.

Contrary to the majority’s assertion, there is nothing in the constitution that suggests a condemnation award should balance the interests of the individual landowner whose property is taken against the interests of the taxpaying public. Maj. op. at 1043. Just compensation is not a sliding scale, dependent upon whether the landowner is a “speculator” or a third generation owner, or dependent upon whether the State has ample revenue or not. Any balancing of interests should be conducted by the condemning entity prior to deciding whether to condemn a private individual’s land for a public purpose — not after the decision has been made and the economic consequences of that decision are brought to bear. Just compensation is an absolute. Landowners are not charged with the duty to contribute their property for the public good. Rather, private property rights are protected, such that if the public entity requires the use of the landowner’s property, that landowner will receive the full value of the property — just as if it had been sold in an arms-length transaction. That protection is a quintessential aspect of our system of public and private interface, and I view the statute as an impermissible attempt to shift part of the costs of highway construction onto private landowners.

For all of those reasons, I respectfully dissent. I would reverse the trial court and remand this case for recalculation of the condemnation award applying the dollar amount of any benefit as a credit only against damage to the remainder.

      . Although E-470 was the petitioner and the landowners were the respondents before the trial court, we refer to the landowners as petitioners and E-470 as the respondent in this appeal because the landowners petitioned this Court and brought this appeal.

      . We accepted jurisdiction in this case to consider the following issue:
      Whether the portion of Section 38-1-114(2)(d), C.R.S., which provided that, in highway acquisitions, compensation for the property taken shall be reduced by the amount of any special benefits that result from the improvement or project, but not to exceed fifty percent of the total amount of compensation for the property taken, is unconstitutional, facially and as applied, when tested against article II, section 15 of the Colorado Constitution.

      . In reasoning that landowners are entitled to the value of which they have been deprived, and nothing more, we do not hold that article II, section 15 establishes a constitutional upper limit on the amount of compensation a landowner may receive for a taking. Subject to constitutional limitations, setting policy on condemnation awards is the prerogative of the General Assembly, which must balance fairness to the landowner and to the public.

      . Our conclusion that just compensation is not synonymous with a cash payment accords with the approach of the federal courts and a substantial minority of states that allow special benefits to offset not only damages to remaining property but also compensation for property taken. See 3 Julius L. Sackman, Nichols on Eminent Domain § 8.02[1] (3d ed.2003).

      . Although Colorado’s practice for approximately 100 years before 1987 was not to reduce the award of compensation for property taken by the amount of special benefits to the remaining property, this practice does not rise to the level of a constitutional requirement or guarantee of just compensation.

      . As article II, section 15 contemplates, the remaining property may also be damaged.

      . See Sackman, supra, § 8A.03; see, e.g., State v. Enter. Co., 728 S.W.2d 812 (Tex.Ct.App.1986) (disallowing a reduction in compensation for property taken by the amount of special benefits to the remaining property under the "adequate compensation” guarantee of the Texas Constitution); Kane v. City of Chicago, 392 Ill. 172, 64 N.E.2d 506, 508 (1946); (reasoning that “[t]he rule has been long settled” in Illinois that compensation for property taken may not be reduced: by the amount of special benefits to the remaining property). Notably, most of the states that do not permit an award of compensation for property taken to be reduced by the amount of special benefits to the remaining property have statutes to that effect, which supports the principle that it is the General Assembly’s prerogative to provide the method for calculating just compensation.

      . See Sackman, supra, § 8A.03; see, e.g., Bauman v. Ross, 167 U.S. 548, 570, 574-75, 17 S.Ct. 966, 42 L.Ed. 270 (1897) (holding that the compensation for property taken may be reduced by the amount of special benefits under the Fifth Amendment's guarantee of just compensation because a landowner "is entitled to receive the value of what he has been deprived of, and no more”); State ex rel. Chicago B. & Q.R. Co. v. City of Kansas, 89 Mo. 34, 14 S.W. 515 (1886) (holding that an award of compensation for property taken may be reduced by the amount of special benefits to the remaining property).

        .See Leadville Water Co. v. Parkville Water Dist., 164 Colo. 362, 365, 436 P.2d 659, 660 (1967) ("The phrase 'just compensation' as applied to eminent domain has been commonly defined as payment to the owner of the fair and reasonable market value of his property.”); Swift v. Smith, 119 Colo. 126, 139, 201 P.2d 609, 615 (1949) ("Under the Constitution it is not token that the landowner is entitled to receive; it is just compensation.”).

      . Although the language of article II, section 15 of our constitution differs from its federal counterpart, we have "considered decisions of the United States Supreme Court construing the federal takings clause as a guide” in determining what constitutes a taking. Cent. Colo. Water Conservancy Dist. v. Simpson, 877 P.2d 335, 346 (Colo.1994). In addition, we have relied upon Supreme Court cases as a guide in determining whether compensation is just. See, e.g., Fowler, 17 P.3d at 802-04.

      . We note that Bauman, despite having been decided in 1897, has been cited with approval by this Court, see Farncomb v. City and County of Denver, 64 Colo. 13, 16, 171 P. 66, 67 (1918), Alexander v. City and County of Denver, 51 Colo. 140, 144, 116 P. 342, 344 (1911), City of Denver v. Londoner, 33 Colo. 104, 112, 80 P. 117, 119 (1904), and the Supreme Court has never retreated from this construction of the federal just compensation clause.

      . See U.S. v. Gen. Motors Corp., 323 U.S. 373, 379, 65 S.Ct. 357, 89 L.Ed. 311 (1945) ("Only in the sense that he is to receive [the value of the interest taken] is it true that the owner must be put in as good [a] position pecuniarily as if his property had not been taken. In the ordinary case, for want of a better standard, market value, so-called, is the criterion of value.").

      . Although the amount of special benefits received by the petitioners was properly adjudicated and nof appealed, petitioners argue that a determination of the value of special benefits may involve speculation. However, in Denver Joint Stock Land Bank v. Bd. of County Comm’rs, we held that benefits that are speculative in nature may not be used to reduce compensation owed to a landowner. 105 Colo. 366, 371, 98 P.2d 283, 286 (1940). Accordingly, only those direct benefits to a landowner’s property that may be calculated with reasonable certainty may be deducted under section 38-1-114(2)(d).

      . Because our constitution entitles landowners whose property is taken or damaged to the value of which they have been deprived, we are not persuaded by petitioners’ argument that our holding will result in disparate and unfair outcomes. On one hand, if all of a landowner's property is taken in a highway condemnation and that landowner is paid the fair market value for the property in cash, then that landowner has received the value of which he has been deprived, as required by our constitution. On the other hand, if a landowner’s properly is neither taken nor damaged, but the landowner receives special benefits to the properly, then the landowner has not been deprived of any property and article II, section 15 of our constitution is not implicated.

      . I would not accept the E-470 Authority’s invitation to struggle with the question of whether the right to compensation is a fundamental one or not. I would merely find that just compensation for property taken means monetary compensation, and as such, the statute violates that constitutional mandate. See Keller v. Miller, 63 Colo. 304, 165 P. 774 (1917), for a case in which this court reached the conclusion that a statute purporting to deny a landowner his costs similarly violated constitutional requirements of just compensation without any need to define the particular level of constitutional scrutiny.

      . The Court relied upon Kansas, Massachusetts, New York, New Jersey, Ohio, and Pennsylvania law. Massachusetts, New York, New Jersey, Ohio and Pennsylvania now allow the setoff of special benefits against damages to the remainder only and not against the value of the property taken. Julius L. Sackman, Nichols on Eminent Domain §§ 8A.03[24], [33], [35], [38], [41] (3d ed.2003).

      .Parenthetically, the statute invites confusion regarding the differences between special benefits and general benefits. A general benefit is one that is common to all lands in the vicinity of the condemnee’s property, and a special benefit is one that accrues directly to the particular land remaining after a partial taking. Mack v. Bd. of County Comm'rs, 152 Colo. 300, 381 P.2d 987, 991 (1963); Julius L. Sackman, Nichols on Eminent Domain § 8A.02[4](3d ed.2003). Although the question of whether the benefits attributable to the remainder property in this case were truly "special” has not been raised here, it is embedded in the calculation that the statute permits. Particularly when addressed in the context of a highway construction project, the distinction between special and general benefits will beleaguer the courts.

      . Indeed, if the property being taken were valued after the installation of the improvements rather than before, it too might be worth more. However, under the majority's reasoning, the landowner does not realize any special benefit increase in value in the land taken, but must pay for it in special benefits attributable to the remainder and debited against the property taken.

      . Commonwealth v. Powell, 258 Ky. 131, 79 S.W.2d 411, (1935); Chiesa v. State, 43 A.D.2d 359, 351 N.Y.S.2d 735 (N.Y.App.Div.1974); Williams Natural Gas Co. v. Perkins, 952 P.2d 483, 487 (Okla.1997); State Highway Comm’n v. Hooper, 259 Or. 555, 488 P.2d 421 (1971); Capital Properties, Inc. v. State, 636 A.2d 319 (R.I.1994); State v. Enterprise Co., 728 S.W.2d 812 (Tex.App.1986); and State v. Smith, 25 Wash.2d 540, 171 P.2d 853 (1946).


source: Caselaw Access Project

author: Justice MARTINEZ

license: Public Domain

text:
    Cory A. MORRISON, Petitioner v. Richard J. GOFF, Respondent.
    No. 03SC116.
    Supreme Court of Colorado, En Banc.
    June 14, 2004.

      Cory A. Morrison, pro se, Denver, Colorado.
    Richard J. Goff, pro se, Littleton, Colorado.
    Melat, Pressman & Higbie, LLP, Alan Higbie, Colorado Springs, Colorado, Attorneys for Amicus Curiae Colorado Trial Lawyers Association.
    Montgomery, Little & McGrew, P.C., David C. Little, Christopher B. Little, Engle-wood, Colorado, White & Steele, John M. Palmeri, Franz Hardy, Denver, Colorado, Attorneys for Amicus Curiae Colorado Bar Association. '
   Justice MARTINEZ

delivered the Opinion of the Court.

In this legal malpractice action, Petitioner Cory A. Morrison appeals the court of appeals’ decision affirming summary judgment in favor of Respondent Richard J. Goff. The court of appeals held that the statute of limitations for negligence actions barred Morrison’s claims. We must decide whether in a legal malpractice action brought by a criminal defendant, the statute of limitations is tolled while the defendant pursues appellate or posteonviction relief in the underlying criminal proceeding. We hold that a criminal defendant’s direct appeal or action for postconviction relief does not toll the statute of limitations for the defendant’s related legal malpractice action. Instead, a defendant must file the malpractice action within two years of discovering the cause of action and the resulting injury, and may seek a stay pending the resolution of the criminal case.

I.Facts and Procedural History

In 1996, Goff represented Morrison in a criminal action. After a trial, Morrison was convicted and sentenced. In 1997, Morrison filed a formal complaint with the Office of Supreme Court Disciplinary Counsel alleging several deficiencies in Goffs representation. As a result, Goff was later suspended from the practice of law. See Goff v. People, 35 P.3d 487 (Colo.O.P.D.J.2000).

In 1998, the court of appeals affirmed Morrison’s conviction. People v. Morrison, 985 P.2d 1 (Colo.App.1999) (announced as non-published on Nov. 19,1998, and later selected for official publication). Morrison then filed a Crim. P. 35(c) motion for postconvietion relief, arguing that he suffered ineffective assistance of counsel. In 2001, the trial court in that case granted Morrison’s motion, vacated his conviction, and ordered a new trial.

In September 1999, while his Crim. P. 35(c) motion was pending, Morrison filed a civil action for professional negligence against Goff, with allegations similar to those contained in his letter to the discipline office. Upon Goffs motion, the trial court granted summary judgment in Goffs favor, holding that the statute of limitations barred Morrison’s action. The trial court concluded that Morrison knew of Goffs negligence when he filed a disciplihary complaint against Goff in May of 1997. Therefore, the trial court reasoned, Morrison filed the action more than two years after he knew of Goffs negligence and the resulting injury and thus after the statute of limitations had elapsed. See §§ 13-80-102(1), 13-80-108(1), 5 C.R.S. (2003).

The court of appeals affirmed the trial court’s order, holding, that the statute of limitations barred Morrison’s action. See Morrison v. Goff, 74 P.3d 409, 413 (Colo.App.2003). The court of appeals rejected Morrison’s argument that the statute of limitations for' his malpractice action was tolled until he obtained postconviction relief. See id. at 412-13. Instead, it concluded that a criminal defendant with a pending claim for postcon-viction relief must file and preserve a related malpractice claim within the statute of limitations period. See id. Thus, the court of appeals held that the statute of limitations barred Morrison’s claim because he brought it more than two years after he discovered the cause of action. See id.

II.Standard of Review and Principles of Interpretation

We review grants of summary judgment de novo. Ryder v. Mitchell, 54 P.3d 885, 889 (Colo.2002). We construe statutes of limitations like any other statute by attempting to “ascertain and effectuate” the General Assembly’s intent. Hersh Cos. v. Highline Village Assocs., 30 P.3d 221, 223 (Colo.2001). Thus, we attempt to interpret statutes of limitations consistent with their purposes of promoting justice, avoiding unnecessary delay, and preventing the litigation of stale claims. Id.

III.Analysis

We now examine the effect of an action for appellate or postconviction relief on the statute of limitations for a related malpractice claim brought by a criminal defendant. At the'outset, we note the narrowness of the question before us. We are only asked to examine the relationship between wrongful conviction claims and the statute of limitations for malpractice actions. We do not address the question of whether a criminal defendant must first obtain appellate or post-conviction relief to prevail in a related malpractice claim, because Morrison has already obtained postconviction relief.

We first provide background to statutes of limitations, as well as the principles of accrual and tolling. We then explain that jurisdictions have reached different conclusions regarding the effect of actions for appellate or postconviction relief on the statute of limitations for related malpractice claims. -After outlining the various approaches and the justifications for each, we conclude that the statute of limitations for professional malpractice is not tolled while a defendant seeks appellate or postconviction relief. Instead, a criminal defendant must file a related malpractice action within two years of discovering the cause of action and the resulting injury. In such eases, trial courts have discretion to grant a stay in the malpractice action pending the resolution of the criminal case.

A, The Statute of Limitations in Colorado for Negligence Actions: Accrual and Tolling

In Colorado, the statute of limitations bars negligence actions brought more than two years after the action accrues. § 13-80-102(1). To determine when an action accrues, the General Assembly has adopted a form of the “discovery rule,” which states that an action accrues “on the date both the injury and its cause are known or should have been known by the exercise of reasonable diligence.” § 13-80-108(1); see also Owens v. Brochner, 172 Colo. 525, 530-31, 474 P.2d 603, 606 (1970). When Colorado courts applied this rule to legal malpractice actions, they explained that such actions accrue when plaintiffs learn “facts that would put a reasonable person on notice of the general nature of damage and that the damage was caused by the wrongful conduct of an attorney.” Broker House Int'l, Ltd. v. Bendelow, 952 P.2d 860, 863 (Colo.App.1998); .see also Morris v. Geer, 720 P.2d 994, 997 (Colo.App.1986).

Tolling is a principle independent from accrual. The tolling of a statute of limitations will either “delay the start of the limitations period” or suspend the running of the limitations period if the accrual date has passed. 51 Am.Jur.2d Limitation of Actions § 169 (2000); see also Thurman v. Tafoya, 895 P.2d 1050, 1054 n. 5 (Colo.1995). Courts apply the doctrine of equitable tolling to suspend a statute of limitations period when “flexibility is required to accomplish the goals -of justice.” Dean Witter Reynolds, Inc. v. Hartman, 911 P.2d 1094, 1096 (Colo.1996) (quoting Garrett v. Arrowhead Improvement Ass’n, 826 P.2d 850, 853 (Colo.1992)). For example, we have tolled the statute of limitations when plaintiffs did not timely file their claims because of “extraordinary circumstances” or because defendants’ wrongful conduct prevented them from doing so. Id. at 1096-97.

Thus, through two separate principles, accrual and tolling provide courts with tools to prevent statutes of limitations from expiring and barring claims. Courts have reached opposite conclusions as to whether these principles may prevent the statute of limitations from .running for malpractice actions brought by criminal defendants when these defendants await appellate or postconviction relief.

B. Courts’ Differing Interpretations

Courts have differed as - to the effect of actibns for appellate or postconviction relief on the statute of, limitations for a related malpractice action brought by a criminal defendant. Some courts have opted for ' a bright-line rule under which statutes of limitations for the malpractice actions do not begin to run until a criminal defendant is exonerated through appellate or postconvietion relief. Other courts have concluded that criminal defendants’ actions for appellate or postconvietion relief do not affect the statutes of limitations for related malpractice actions. These courts have required criminal defendants to file malpractice actions while actions for appellate or postconvietion relief are pending. We outline these approaches and their justifications below, and ultimately adopt the latter approach.

1. Bright-line Rule to Determine When Statutes of Limitations Commence

Some jurisdictions have adopted a bright-line rule to resolve when the statute of limitations begins to run for malpractice actions brought by criminal defendants simultaneously seeking appellate or postconvietion relief. These jurisdictions have concluded either that malpractice actions do not accrue or that statutes of limitations are tolled until defendants receive appellate or postconvietion relief. These courts have cited concerns of judicial efficiency and fairness to criminal defendants to support their position.

Most jurisdictions that tie the running of the statute of limitations for malpractice actions to appellate or postconvietion relief have concluded that malpractice actions only begin to accrue, and therefore statutes of limitations begin to run, when a defendant receives such relief. See Noske v. Friedberg, 670 N.W.2d 740, 746 (Minn.2003); Stevens v. Bispham, 316 Or. 221, 851 P.2d 556, 559-66 (1993); see also Steele v. Kehoe, 747 So.2d 931 (Fla.1999); Trobaugh v. Sondag, 668 N.W.2d 577 (Iowa 2003). Underlying this rule is the idea that criminal defendants do not fully learn or discover the injury or harm caused by their attorney’s negligence until they receive appellate or postconvietion relief. See Stevens, 851 P.2d at 566 (“Plaintiff had not suffered ... harm at [attorney’s] hands in this case unless and until he was exonerated”). Similarly, another court has held that the statute of limitations for malpractice actions is tolled until criminal defendants obtained appellate or postconvietion relief. Shaw v. State, 816 P.2d 1358, 1360 (Alaska 1991).

The efficiency of the bright-line rale appeals to some courts because it provides “a clear demarcation of the point .in time” at which the statute of limitations begins to run. Trobaugh, 668 N.W.2d at 584; see also Noske, 670 N.W.2d at 744 n. 3 (stating that requiring criminal defendants to seek stays in malpractice actions until criminal matters are settled “would squander scarce judicial resources”). Thus, courts appreciate the utility of a bright-line rule in determining when the statute of limitations begins to run for malpractice claims.

Additionally, some courts view the bright-line rule as most fair to defendants, citing problems that may arise when criminal defendants are forced to bring civil actions while criminal appeals or motions for post-conviction relief are pending. Some courts hesitate to require defendants to concern themselves with malpractice claims while seeking wrongful conviction relief. Shaw, 816 P.2d at 1361. Others attempt to avoid forcing criminal defendants to argue inconsistent positions in the civil and criminal actions. See Hughes v. Mahaney & Higgins, 821 S.W.2d 154, 156 (Tex.1991). Similarly, some courts warn that in malpractice claims, defense attorneys may reveal privileged information that could aid the prosecution in the criminal matter. See, e.g., Shaw, 816 P.2d at 1361. Thus, these courts have decided to prolong the running of statutes of limitations for malpractice claims in the interest of fairness to the criminal defendants.

Courts following the bright-line approach therefore have opted for a rule that serves the interests of judicial economy and fairness to criminal defendants. Other courts, however, have failed to find these reasons persuasive.

2. The Two-track Approach

Some jurisdictions have rejected the bright-line rule in favor of a-“two-track” approach that follows conventional accrual and tolling rules. See, e.g., Silvers v. Brodeur, 682 N.E.2d 811 (Ind.Ct.App.1997); Gebhardt v. O’Rourke, 444 Mich. 535, 510 N.W.2d 900 (1994); Seevers v. Potter, 248 Neb. 621, 537 N.W.2d 505 (1995); Gibson v. Trant, 58 S.W.3d 103 (Tenn.2001). These courts reaL son that this approach promotes the policies that underlie statutes of limitations, is consistent with the intent of legislatures, and protects the interests of criminal defendants.

. Under the two-track approach, a criminal defendant must file a malpractice claim within the period defined in the statute of limitations. See Gebhardt, 510 N.W.2d at 907. In jurisdictions following the discovery rule, the criminal defendant must file a malpractice claim within the specified period after the defendant learns or should have learned of the injury and its cause. See § 13-80-108(1); Gebhardt, 510 N.W.2d at 907. The criminal defendant then may seek a stay in the civil suit until the criminal matter is resolved. Gebhardt, 510 N.W.2d at 907. As in most situations in which .related criminal and civil matters are simultaneously pending, courts have discretion as to whether the civil suit should proceed or whether it should “yield to the criminal matter.” Id. This approach therefore allows both the civil and criminal matters to “proceed along separate tracks.” Id.

Courts adopting the two-track approach reason that it promotes the objectives of statutes of limitations. They explain that statutes of limitations aim to “promote stability in the affairs of persons and to avoid the unfairness and burdens inherent in defending stale claims.” Stevens v. Bispham, 316 Or. 221, 851 P.2d 556, 571 (1993) (Unis, J., specially concurring). These courts reason that by tying the statute of limitations period to the time at which the criminal defendant knew of the negligence rather than at exoneration,.' the two-track approach prevents criminal defendants from bringing malpractice actions decades after the negligence occurred. Silvers, 682 N.E.2d at 817; see also Stevens, 851 P.2d at 571-72 (Unis, J., specially concurring); Gibson, 58 S.W.3d at 117. In their view, this approach protects attorneys by guaranteeing that they receive “formal, seasonable notice” of malpractice claims. Silvers, 682 N.E.2d at 817; see also Gibson, 58 S.W.3d at 117. Additionally, these courts explain that the two-track approach ensures that malpractice claims are brought before they become stale. Stevens, 851 P.2d at 571-72; see also Coscia v. McKenna & Cuneo, 25 Cal.4th 1194, 108 Cal.Rptr.2d 471, 25 P.3d 670, 680 (2001). Thus, courts adopting the two-track approach perceive it as furthering the purposes of statutes of limitations.

Additionally, courts that have endorsed the two-track approach reason that it is consistent with the intent of the legislatures. According to these courts, legislatures have “chosen to define the statute of limitations for a professional negligence claim as two years” after the plaintiff learns of the injury and its cause. See Stevens, 851 P.2d at 573 (Unis, J., specially concurring); see also Duncan v. Campbell, 123 N.M. 181, 936 P.2d 863, 866 (N.M.Ct.App.1997). Because legislatures did not distinguish between malpractice claims arising out of civil and criminal cases when defining the statutes of limitations, courts adopting the two-track approach have concluded that legislatures intended for the same rule to apply to each. See Stevens, 851 P.2d at 573 (Unis, J., specially concurring); see also Seevers, 537 N.W.2d at 511. These courts therefore reason that the two-track approach is consistent with legislative intent because it mandates that statutes of limitations begin to run once a criminal defendant learns of the injury and resulting damage.

Finally, courts that endorse the two-track approach differ with those that adopt the bright-line approach, contending that the two-track approach also serves the interests of both defendants and judicial economy. They believe that the approach safeguards the rights of criminal defendants because trial courts have discretion to stay the civil suit until the criminal matter is resolved. See, e.g., Gebhardt, 510 N.W.2d at 907. Similarly, these courts maintain that the two-track approach does not waste judicial resources because trial courts may choose to continue the civil proceedings if such course does not jeopardize the criminal defendants’ rights. See id. Therefore, these courts reason that the two-track approach sufficiently protects both the interests of defendants and those of judicial economy.

C. Bright-line v. Two-track Approach in Colorado

Having reviewed the bright-line and two-track approaches outlined by various jurisdictions, we now adopt the two-track approach. We find the two-track more desirable than the bright-line rule because the two-track approach furthers the purposes of statutes of limitations. Additionally, it comports with established principles of accrual and tolling because it allows courts to make case-by-case determinations. Finally, we conclude that the two-track approach is more consistent with Colorado law regarding accrual and tolling than the bright-line rule.

We favor the two-track approach because it furthers the statutes of limitations’ goals of promoting justice, preventing unnecessary delay, and avoiding the litigation of stale claims. See Dean Witter Reynolds, Inc. v. Hartman, 911 P.2d 1094, 1096 (Colo.1996). By requiring criminal defendants to bring malpractice claims once they learn of the malpractice and the resulting injury, the two-track approach restricts the period during which criminal defendants may bring such suits. Thus, this approach protects attorneys from being forced to defend stale malpractice claims. Moreover, the two-track approach furthers judicial economy by expediting the litigation of such claims. See Silvers v. Brodeur, 682 N.E.2d 811, 817 (Ind.Ct.App.1997); Gebhardt v. O’Rourke, 444 Mich. 535, 510 N.W.2d 900, 907 (1994); Stevens v. Bispham, 316 Or. 221, 851 P.2d 556, 571-72 (1993) (Unis, J., specially concurring).

In contrast, the bright-line rule fails to further the goals of preventing delay and avoiding litigation of stale claims because it does not require plaintiffs to bring claims as expediently as possible. Rather, it prevents criminal defendants from bringing these claims when defendants learn of them and instead requires defendants to wait until exoneration, which may occur years after a defendant’s conviction. For this reason, the bright-line rule “leaves criminal defense lawyers open to the interminable possibility of being sued by any convicted client who has not been exonerated but who, theoretically, could be exonerated at any future time.” Stevens, 851 P.2d at 572 (Unis, J., specially concurring). Additionally, this approach allows the litigation of negligence claims long after the claims have grown stale, when evidence has been lost, and witnesses cannot be located. Thus, the two-track approach better furthers the statute of limitations’ policies of protecting potential defendants and preventing stale claims.

In addition to furthering the goals of statutes of limitations, the two-track approach comports with principles of accrual and tolling by allowing courts to evaluate on a case-by-case basis when claims accrue and when statutes of limitations require tolling. Both the determinations of when claims accrue and when the statute of limitations should be tolled require examinations of the underlying facts. See § 13-80-108(1); Dean Witter, 911 P.2d at 1096. The determination of when claims accrue focuses on each plaintiffs specific knowledge of relevant facts, as courts must ask precisely when each injured party knew or should have known of the relevant injury and its cause. § 13-80-108(1); Broker House Int’l, Ltd. v. Bendelow, 952 P.2d 860, 863 (Colo.App.1998) (determination of when-claims accrue “is normally a question fact”). Similarly, because tolling is an equitable remedy, its' application involves an examination of the facts and circumstances of individual cases to determine when equity requires such a remedy. Garrett v. Arrowhead Improvement Assn., 826 P.2d 850, 854 (Colo.1992); see also Dean Witter, 911 P.2d at 1096-97. The two-track approach is consistent with these principles because it allows courts to make specific determinations of whether claims have accrued and whether the equities of a case require the tolling of the statute of limitations.

In contrast, the bright-line approach is inconsistent with principles of accrual and tolling because it does not allow courts to determine on a case-by-case basis whether actions accrue or statutes of limitations are tolled. Rather, the bright-line approach determines as a matter of law when an entire class of claims — malpractice actions brought by criminal defendants who have pending actions for appellate or postconviction relief — accrues or when their statutes of limitations toll. Thus, the two-track approach is advantageous because it comports with these principles by allowing courts to evaluate the facts of each case to determine whether a claim accrues or tolling is appropriate.

Finally, we adopt the two-track approach because it best comports with Colorado statutes and precedent regarding both accrual and tolling. Simply put, the two-track approach is consistent with the definition of accrual for malpractice claims set forth by the Colorado statutes because it allows malpractice actions to proceed pursuant to these statutory provisions. For this same reason, the two-track approach is also consistent with Colorado precedent, which adheres to the statutorily imposed accrual rule. Despite opportunities to fashion a judicial exception to'this rule, Colorado courts have consistently rejected attempts to deviate from the statutory definition -.of accrual for malpractice claims. See Broker House, 952 P.2d at 863-64; Jacobson v. Shine, 859 P.2d 911, 913 (Colo.App.1993); Morris v. Geer, 720 P.2d 994, 997-98 (Colo.App.1986) (all holding that a pending civil appeal does not affect the accrual of a related malpractice claim); see also Miller v. Byrne, 916 P.2d 566, 582 (Colo.App.1995) (holding that legal malpractice actions may accrue before an attorney’s representation ceases). Therefore, the two-track approach comports with Colorado statutes and precedent governing accrual.

Similarly, the two-track approach is consistent with Colorado precedent regarding equitable tolling. ■ Because'tolling involves the exercise of equitable jurisdiction, Colorado courts have repeatedly stated that tolling determinations require an examination of the specific facts and circumstances of each case. Garrett, 826 P.2d at 855; see also Dean Witter, 911 P.2d at 1096. The two-track approach allows1 courts to determine on a case-by-case basis 'whether fairness requires the tolling of thé statute of limitations. Therefore, we conclude the • two-track approach is consistent with Colorado law regarding tolling, as well as accrual.

In contrast, the bright-line approach is inconsistent with Colorado law regarding both accrual and tolling. The bright-line approach conflicts with the terms of the accrual statute, as well as precedent interpreting it, because it creates an exception to the accrual definition for malpractice actions arising from criminal actions. The General Assembly’s definition of accrual does not provide any specific or unique rule with respect to malpractice actions, and does not distinguish between legal malpractice claims brought by criminal defendants and other types of negligence actions. See § 13—80—108(1)(13). Similarly, Colorado courts have rejected attempts to create an exception to the discovery rule for malpractice actions. See Broker House, 952 P.2d at 863-64; Miller, 916 P.2d at 582; Jacobson, 859 P.2d at 913 (Colo.App.1993); Morris, 720 P.2d at 997-98. Thus, the bright-line rule is incompatible with Colorado statutes and precedent.

The bright-line approach also conflicts with Colorado precedent regarding tolling because it tolls the statute of limitations for an entire class of claims. Colorado courts have generally hesitated to modify accrual and tolling rules for broad classes of claims. They have articulated only a few classes of cases to which tolling applies. See Dean Witter, 911 P.2d at 1096-97 (stating that this court has applied the doctrine of equitable tolling when defendant’s wrongful conduct prevented the plaintiff from timely asserting claim, and that other jurisdictions have allowed tolling where “extraordinary circumstances” prevented timely filing). Moreover, Colorado courts have declined to create classes of claims for which the statute of limitations is tolled. See, e.g., Noel v. Hoover, 12 P.3d 328 (Colo.App.2000) (refusing to toll statute of limitations for a malpractice action related to tax proceedings). Therefore, because the bright-line approach tolls the statute of limitations for all malpractice claims arising from criminal cases, the rule appears inconsistent with Colorado law governing tolling. Thus, we adopt the two-track approach because it is most consistent with Colorado statutes and precedent regarding both accrual and tolling.

For these reasons, we hold that an underlying criminal appeal or motion for postconviction relief does not affect the accrual for related legal malpractice claims. Similarly, such criminal, matters do not require tolling of the statute of limitations of related malpractice claims. Criminal defendants must file their malpractice actions within two years of discovering the attorney’s negligence and the resulting injury. In the event that a particular criminal defendant must obtain appellate relief to avoid dismissal of a pending malpractice action, or if proceeding with a malpractice action would jeopardize the criminal defendant’s rights, the trial court may stay the malpractice action pending resolution of the criminal case.

IV. Determination of Whether the Statute, of Limitations Barred Morrison’s Malpractice Claim

In Morrison’s case, we conclude that the court of appeals and the trial court properly determined that the statute of limitations barred Morrison’s malpractice claim. As we explained, the statute of limitations bars negligence actions brought more than two years after the claim accrues. § 13-80-102(1). Claims accrue when a plaintiff knows or should know through reasonable diligence of both the injury and its cause. § 13-80-108(1).

Here, Morrison’s action accrued more than two years before he brought the malpractice action. Morrison appears to have known of Goffs negligence in May, 1997, when he filed a formal complaint with the Office of Supreme Court Disciplinary Counsel alleging negligence by Goff. Because Morrison brought his malpractice action in September, 1999, it is outside the statute of limitations.

Moreover, Morrison has not presented any facts under which principles of equity might toll the statute of limitations. Therefore, because Morrison’s claim was filed more than two years after his claim accrued, and because the statute of limitations in his case is not tolled, we hold that the statute of limitations bars his claim.

Accordingly, we affirm the judgment of the court of appeals affirming the district court’s grant of summary judgment in favor of Goff.

Justice BENDER does not participate.

      . Specifically, we granted certiorari to determine:
      Whether the Colorado Court of Appeals erred in ruling that the statute of limitations is not tolled while a criminal defendant either pursues a direct appeal or seeks postconviction relief.

      . The Office of Supreme Court Disciplinary Counsel is now known as the Office of Attorney Regulation Counsel.

      . Specifically, Morrison alleged that Goff failed to investigate his case, call witnesses, and consult with an experienced attorney about his case.

      .Several courts have addressed these two questions in one decision. See Shaw v. State, 816 P.2d 1358 (Alaska 1991); Coscia v. McKenna & Cuneo, 25 Cal.4th 1194, 108 Cal.Rptr.2d 471, 25 P.3d 670 (2001); Gebhardt v. O’Rourke, 444 Mich. 535, 510 N.W.2d 900 (1994); Noske v. Friedberg, 670 N.W.2d 740 (Minn.2003); Gibson
        v. Trant, 58 S.W.3d 103 (Tenn.2001); cf. Seevers v. Potter, 248 Neb. 621, 537 N.W.2d 505, 508 (1995) ("As a preliminary matter, we note that neither the trial court nor this court was asked to address whether [the criminal defendant], may maintain an action for legal malpractice”).

      . The statute states, in relevant part:
      (l)The following civil actions, regardless of the theory upon which suit is brought, dr against whom suit is brought, ’ shall be commenced within two years after the cause of action accrues, and not thereafter:
      (a) Tort actions, including but not limited to actions for negligence....
      § 13-80-102(1)(a).

      . At least one court has referred to this as the "one track” approach. See Ereth v. Cascade County, 318 Mont. 355, 81 P.3d 463, 467 (2003).

      . We note that many courts that have adopted the rule that these types of malpractice actions do not accrue until the criminal defendant receives appellate or postconvietion relief have also held that plaintiffs, cannot even maintain malpractice actions prior to exoneration. See, e.g., Shaw v. State, 816 P.2d 1358, 1360 (Alaska 1991); Noske, 670 N.W.2d at 744-45; Stevens, 851 P.2d at 559-66. Thus, these courts have mainly relied on criminal defendants’ inability to maintain malpractice actions to justify their position that statutes of limitations do not accrue until defendants receive appellate or pósteonvietion relief. See id. Contrary to these courts' position, we do not view the question of whether a defendant can maintain a malpractice action as resolving the question of whether a malpractice action accrues or the statute of limitations is tolled until a defendant obtains appellate or post-conviction relief. We point to decisions in some jurisdictions holding that although defendants must obtain appellate or postconvietion relief to maintain an action for malpractice, the statutes of limitations for such actions can accrue before a defendant obtains relief. See, e.g., Coscia v. McKenna & Cuneo, 25 Cal.4th 1194, 108 Cal.Rptr.2d 471, 25 P.3d 670 (2001); Gibson v. Trant, 58 S.W.3d 103 (Tenn.2001). We agree with these courts’ reasoning that trial courts have discretion to stay nthe malpractice suits to ensure that statutes of limitations will not prematurely bar criminal defendants’ claims. Coscia, 108 Cal.Rptr.2d 471, 25 P.3d at 679-80; Gibson, 58 S.W.3d at 117. Therefore, we do not find the view that statutes of limitations do not accrue because criminal defendants cannot maintain a malpractice action until they obtain appellate or postconvietion relief instructive in reaching our decision.

      .We note it is unclear why the Shaw court concluded that the statute of limitations tolled instead of simply determining that it did not accrue. The court did not discuss why the principle of tolling applied, but only explained that the statute of limitations "does not begin to run” until a criminal defendant obtains appellate or postconvietion relief. See Shaw, 816 P.2d at 1363.


author: Justice COATS

text:
    TRAIL’S END RANCH, L.L.C., Plaintiff-Appellant, v. COLORADO DIVISION OF WATER RESOURCES; Hal D. Simpson, acting as the Colorado State Engineer; and Steven J. Witte, as the Division Engineer for Water Division 2, Defendants-Appellees.
    No. 03SA199.
    Supreme Court of Colorado, En Banc.
    June 14, 2004.

      White & Jankowski, LLP, David F. Jan-kowski, William A. Hillhouse, II, Denver, Colorado, Attorneys for Plaintiff-Appellant.
    Ken Salazar, Attorney General, Alexandra L. Davis, Assistant Attorney General, Appellate Division, Natural Resources & Environment Section, Denver, Colorado, Attorneys for Defendants-Appellees.
    John M. Dingess, Austin Hamre, Denver, Colorado, Attorneys for Amicus Curiae City of Aurora; acting by and through its Utility Enterprise.
    Burns, Figa & Will, P.C., Lee Miller,' Stephen Leonhardt, Scott Clark, Englewood, Colorado, Attorneys for Amicus Curiae Southeastern Colorado Water Conservancy District.
    Trout, Witwer & Freeman, P.C., Peter Nichols, Denver, Colorado, Attorney for Ami-cus Curiae Lower Arkansas Valley Water Conservancy.
   Justice COATS

delivered the Opinion of the Court.

Trail’s End Ranch appealed directly to this court from a judgment of the water court denying the declaratory and injunctive relief it sought against the Colorado Division of Water Resources. The division engineer had ordered Trail’s End to stop taking water out of Spruce Creek at locations other than the points of diversion decreed to its direct- flow irrigation rights, until those additional locations were approved by the water court. Trail’s End filed in the water court to enjoin enforcement of the order, asserting that having once diverted water at its decreed points of diversion and having returned it directly to the stream, Trail’s End was then entitled to recapture the returned water further downstream, without adjudicating a change of its water right.

Because the practice proposed by Trail’s End would amount to changing or adding new or supplemental points of diversion, it could not benefit from the priorities of its existing water rights without adjudicating changes to those rights. The judgment of the water court is therefore affirmed.

I.

This dispute arises from an attempt by Trail’s End Ranch, LLC, to operate its direct flow irrigation rights, without adjudicating a change in those rights, from points downstream of its decreed points of diversion on the same natural stream. The Division Engineer for Water Division No. 2 issued orders requiring Trail’s End to cease diversions at these downstream points and rejected Trail’s End’s proposal for operating its rights from these downstream points in the future. After the state engineer agreed, Trail’s End filed an action in the water court to declare its entitlement to its proposed operations and to enjoin enforcement of the order. On the basis of a negotiated stipulation of facts, the parties contemporaneously filed motions for summary judgment.

According to the stipulation, water rights owned by Trail’s End include three rights originally adjudicated in the nineteenth century at separate ditches on a natural stream called Spruce Creek, for the irrigation of lands along the creek in Custer County. Although the parties disputed the length of time the practice had continued, they agreed that Trail’s End had been diverting water not only at its decreed headgates on all three ditches but also at points several thousand feet downstream of each decreed headgate.

After the division engineer ordered Trail’s End to cease diversions at the downstream points, Trail’s End complied but proposed to permanently operate these three water rights by: 1) diverting and measuring all water to which it was entitled at its respective decreed points of diversion; 2) measuring and returning all or part of the diverted. water to Spruce Creek; 3) conveying the returned water through Spruce Creek to the downstream point associated with each respective water right; and 4) recapturing the water (subject to reasonable losses incurred in transporting the returned water through Spruce Creek) for irrigation under the respective water rights. Despite the fact that all of the referenced points on the stream and all intervening stream reaches were located on Trail’s End’s property, and that there were no intervening water users between the decreed headgates and proposed downstream points, the engineer found the proposal objectionable in the absence of a change of water rights.

The water court held that Trail’s End was proposing to change its points of diversion and that the conditions of its proposed conveyance of water to the “recapture” points downstream did not exempt it from applying for a change of water right in the manner prescribed by statute. It therefore granted the division’s motion for summary judgment and denied the motion filed by Trail’s End. Trail’s End appealed the ruling directly to this court.

II.

Rights to the waters of the natural surface streams of this state are acquired by appropriating previously unappropriated water and putting it to beneficial use. State Eng’r v. Bradley (In re Application of Water Rights in Rio Grande County), 53 P.3d 1165, 1168 (Colo.2002); Williams v. Midway Ranches Property Owners Ass’n, Inc. (In re Application for Water Rights of Midway Ranches Property Owners’ Ass’n, Inc. in El Paso and Pueblo Counties), 938 P.2d 515, 521 (Colo.1997); Shirola v. Turkey Canon Ranch, L.L.C. (In re Application for Water Rights of Turkey Canon Ranch L.L.C. in El Paso County), 937 P.2d 739, 748 (Colo.1997); see § 37-82-101, 10 C.R.S. (2003). The legislature long ago established a system for settling conflicting priorities to water rights through a process of adjudication and decree. SL Group, LLC v. Go West Indus., Inc., 42 P.3d 637, 640 (Colo.2002); South Adams County Water & Sanitation Dist. v. Broe Land Co., 812 P.2d 1161, 1163 (Colo.1991). Absent such an adjudication, water rights are generally, incapable of being enforced. Shirola, 937 P.2d at 749 (Colo.1997).

A water right adjudication is a judicial proceeding at which the respective priorities of water rights are ascertained. Bradley, 53 P.3d at 1168; Shirola, 937 P.2d at 748. An absolute decree confirms that an appropriation has vested as a property right and entitles the subsequent operation of that right through a decreed point of diversion, in a specified amount, for a particular beneficial use. Bradley, 53 P.3d at 1168; Williams, 938 P.2d at 521. Although one of the inei-dents of a water right is the right to change the point of diversion (to the extent that it neither enlarges the right nor injuriously affects other users),.such a change constitutes a change of the water right itself. Bradley, 53 P.3d at 1168-69; see § 37-92-103(5). It must therefore be applied for and adjudicated in substantially the same manner as the initial determination of the water right. See § 37-92-302; Empire Lodge Homeowners’ Ass’n v. Moyer, 39 P.3d 1139, 1158 (Colo.2001)(applications are mandatory, not discretionary).

Within the scheme of the Act, the term “diversion” has a specific meaning, which includes removing water from its natural course or location by means of a ditch, canal, flume, reservoir, bypass, pipeline, conduit, well, pump, or other structure or device. See § 37-92-103(7). While the term “natural course” is not further defined in the statute, its plain and ordinary meaning, when applied to water, clearly refers to the path along which the water flows in nature as distinguished from its path under artificially induced conditions. See Webster’s Third New International Dictionary, 522 (1976) (course: “the path over which something moves”); Black’s Law Dictionary, 1048 (7th ed.1999) (natural: “brought about by nature as opposed to artificial means”). Furthermore, a “natural stream” is statutorily defined, in connection with the displacement of water for storage in reservoirs, as “a place on the surface of the earth where water naturally flows regularly or intermittently with a perceptible current between observable banks, although the location of such banks may vary under different conditions.” See § 37-87-102(1)(b).

Without specifying the precise limits of the term “natural course,” in every conceivable circumstance, it is enough that the course of a natural stream, through which water would regularly flow in the absence of redirection, is unambiguously its “natural course.” It is equally clear that diverting water from a natural stream at a point other than one decreed to an existing water right, at least in the absence of a specific statutory exception, constitutes an out-of-priority diversion, justifying an order to cease further diversion, for the protection of existing adjudicated rights. See § 37-92-502; cf. San Luis Valley Irrigation Dist. v. Carr, 79 Colo. 340, 245 P. 705, 706 (1926) (describing the duty of the water commission to distribute water at the point of diversion from the stream, decreed in an original adjudication, in the absence of a court order directing otherwise).

III.

In light of the stipulation of facts and the arguments advanced throughout by Trail’s End, there can be no dispute that it proposed to divert water from Spruce Creek at its decreed points of diversion and, before applying that water to a beneficial use or placing it into a decreed place of storage, return it by ditches to Spruce Creek, for subsequent removal further downstream. The proposal would not add to the creek any water that was not already there and would clearly have no effect on the natural course of the creek. The water subject to downstream removal would therefore continue to flow along the existing course of Spruce Creek at the unde-creed points proposed for its removal, whether or not it were briefly detoured at an upstream location by Trail’s End. Under these circumstances, the proposed downstream takings constitute diversions within the contemplation of the statute and cannot benefit from the priorities of existing water rights without a change of those rights.

Contrary to Trail’s End’s understanding, the statutory scheme in no way provides an exception for the practices proposed by Trail’s End, and this court has not suggested otherwise. While the actual language of section 37-84-113 implicitly acknowledges that a natural stream may be used as a conduit, perhaps even for water transferred from sources other than another natural stream or a reservoir, the statute merely mandates the measurement, in accordance with the dictates of the state engineer, .of any “water turned into, carried-through, and diverted out of’ such a natural stream. It implies nothing about relief from legal obligations to adjudicate a change of water right that are imposed elsewhere by the Act.

Whatever impact separate statutory provisions concerning the administration of imported or stored water may have on the use of such water, see, e.g. § 37-83-101 (Transfer from one stream to another); § 37-82-106 (Right to reuse of imported water); § 37-87-102 ([Njatural streams and use thereof by reservoir owners), they clearly have no bearing on the taking of water from, and immediate return of it to, a natural surface stream, as proposed by Trail’s End. By stipulation, the proposal of Trail’s End does not involve the transfer of water from one stream to another. Similarly, the subject water does not qualify as stored or developed water. See § 37-92-103(10.7) (“ ‘Storage’ or ‘store’ means the impoundment, possession, and control of water by means of a dam.”); City and County of Denver v. Fulton Irrigating Ditch Co., 179 Colo. 47, 52-53 506 P.2d 144, 147 (1972) (treating as “developed” that water which has been added to the supply of a natural stream and which never would have come into the stream but for its development). Nor does Trail’s End even contend that its proposal amounts to the storage of water or that it would obligate Trail’s End to comply with statutory requirements governing storage and the release of stored water. See, e.g., § 37-87-103 (Notice of release of stored waters).

To the extent, therefore, that prior holdings of this court involving the use of natural streams to convey foreign, developed, or stored water can be read to address limitations on removing that water at all, they have no applicability to the proposal of Trail’s End. See, e.g., Bd. of County Comm’rs v. Park County Sportsmen’s Ranch, L.L.P., 45 P.3d 693, 714 (Colo.2002) (referencing Bd. of County Comm’rs v. Upper Gunnison River Water Conservancy Dist., 838 P.2d 840 (Colo.1992), (regarding the rights of appropriators of storage water)); Pub. Serv. Co. of Colorado v. Willows Water Dist., 856 P.2d 829 (Colo.1993) (developed nontributary groundwater); Coffin v. Left Hand Ditch Co., 6 Colo. 443 (1882) (developed water); Oppenlander v. Left Hand Ditch Co., 18 Colo. 142, 31 P. 854 (1892) (developed water).

Far from a mere formality, the adjudication of changes to the point of diversion of an existing water right provides an important protection for potentially affected decreed water rights holders. See Empire Lodge Homeowners’ Ass’n, 39 P.3d at 1158. Even when it seems clear that no other rights could be affected solely by a particular change in the location of diversion, it is essential that the change also not enlarge an existing right. Because an absolute decree is itself not an adjudication of actual historic use but is implicitly further limited to actual historie use, in order to insure that a change of water right does not enlarge an existing appropriation, its “historic beneficial consumptive use,” see Empire Lodge Homeowners’ Ass’n, 39 P.3d at 1147, must be quantified and established before a change can be approved. See Bradley, 53 P.3d at 1168. There is no apparent purpose, other than circumventing the statutory requirement to adjudicate a change of water right, to be served by Trail’s End’s proposed rerouting operations, and none has been offered by Trail’s End.

IV.

Because the practices proposed by Trail’s End would constituté diversions within the meaning of the Water Right Determination and Administration Act of 1969, it cannot benefit from the priorities of its existing water rights without adjudicating changes to those rights in the manner prescribed by the Act. The judgment of the water court is therefore affirmed.

      . The supreme court has initial appellate jurisdiction in water cases involving priorities and adjudications. See § 13-4-102(1)(d), 5 C.R.S. (2003).

      . "Change of water right” means:
      a change in the type, place, or time of use, a change in the point of diversion, a change from a fixed point of diversion to alternate or supplemental points of diversion, a change from alternate or supplemental points of diversion to a fixed point of diversion, a change in the means of diversion, a change in the place of storage, a change from direct application to storage and subsequent application, a change from storage and subsequent application to direct application, a change from a fixed place of storage to alternate places of storage, a change from alternate places of storage to a fixed place of storage, or any combination of such changes. The term “change of water right” includes changes of conditional water rights as well as changes of water rights.

      . Section 37-84-113 states in pertinent part:
      The owners of any irrigation ditch, canal, or reservoir, transferring water from one natural stream to another, or from a reservoir, ditch, or flume to a stream in order that said water may be diverted from such stream for irrigation or any other purpose, shall construct suitable and proper measuring flumes or weirs, equipped with self-registering devices if required by the state engineer, for the proper and accurate determination of the amount and flow of water turned into, carried through, and diverted out of said natural stream....

      . In addition to having been decided by the court of appeals, long before the current statutory scheme, Sorenson v. Novell, 24 Colo.App. 470, 135 P. 119 (1913), also relied upon by Trail's End, does not even appear to have involved water taken from the same stream, see id. at 470, 135 P. at 120, and Pub. Serv. Co. of Colorado v. Federal Energy Regulatory Comm’n, 754 F.2d 1555 (10th Cir.1985), in which Sorenson is referenced by the 10th Circuit Court of Appeals, clearly refers to stored water.