Even after the award of damages is finally determined by a court sitting with or without jury, a hearing on appeal is allowed on questions of law in condemnation cases as in any other civil case. Such appeals are relatively infrequent, because the determination by the legislature that a proposed taking is for a public use is held not appealable, and because a finding of fact by the lower court on the question of damages will not be disturbed unless there is evidence of gross error or fraud. The questions that go up to the supreme court usually are:
1. Is the statutory provision under which property is condemned constitutional?
2. What is the legal meaning of the language of the statute?
3. Have the municipal authorities strictly complied with the details of the procedure as outlined by the statute?
4. Is the rule of damages as announced in the lower court inequitable either to the city or to the land owner?
The additional expense of appeals to a court of last resort can not be avoided; but possession of land by the city should not wait on the outcome of this appeal, particularly where the only question in issue is the amount of damages. It is the law of most jurisdictions that ownership of the land passes to the city on the payment of the final judgment in the lower court.
THE TRIBUNAL
1. A SPECIAL BOARD SUBJECT TO REVIEW BY THE COURT WITH JURY
A common law jury is apt to lack the knowledge of real estate values and the experience in handling technical evidence which are important in the tribunal which is to ascertain the compensation in land damage cases, and therefore most condemnation codes provide a special tribunal. Some of the codes also see the necessity of a tribunal as far removed as possible from the influence of the parties to the suit and provide for its non-partisan appointment, usually by the court which has jurisdiction over the proceedings. There is a wide difference in the character of these judicial commissions in different cities and even in successive commissions in the same city.
Denver. In the opinion of the city attorney’s office, Denver gets excellent commissioners, or appraisers as they are called. The procedure is a semi-judicial one from the start. The petition is filed in the district court and three appraisers are appointed by the presiding justice, who endeavors to get men of the highest qualifications for this work. The bill which is submitted by the appraisers for their services is usually allowed without much question. On the average, only 15 per cent of the findings of the appraisers are appealed from. A commission was appointed in 1911 to ascertain damages in connection with the extension of the Denver park system. Property for this purpose was taken to the amount of $2,523,463, as estimated by the report of the appraisers. Of this sum $1,814,539 was paid for land taken for the site of the civic center. Considering the size of the undertaking there were very few protesting owners, and these were for the most part owners of property involved in the taking for the civic center. Out of 50 owners only 18, representing $527,428, protested against the awards, and one of these alone represented $265,000. The common law jury which heard the first protest found against the petitioners, and all the rest of the protesting owners withdrew their appeals.[17]