(1) When the jury has been selected and the jurors have taken an oath faithfully and impartially to discharge their duties, the court, at the request of any party to the proceeding and in the discretion of the court, may order that the jury go upon the premises sought to be taken or damaged, in charge of a sworn bailiff, and examine the premises in person. Such order shall require the party making such request to advance a sum, to be fixed by the court in such order, sufficient in the opinion of the court to defray the necessary expenses of such examination. In default of such party forthwith advancing such sum, such order shall be held for naught upon such trial before a jury. The court shall preside in the same manner and with like powers as in other cases. Evidence shall be admitted or rejected by the court according to the rules of law. At the conclusion of the evidence, the matters in controversy may be argued by counsel to the jury. At the conclusion of the arguments, the court shall instruct the jury in writing. The jury shall retire for deliberation, in charge of a sworn officer, and when they have agreed upon a verdict the same shall be returned into court.
(2) If the jury fails to agree, it may be discharged by the court. Thereupon another jury shall be summoned as soon as practicable, in the same manner as before, and like proceedings be had with such jury or successive juries, until a verdict is had. Any party feeling aggrieved by such verdict may move before such court for a new trial in the same manner and for the same causes as in actions at law. The refusal of such court to grant a new trial may be excepted to and assigned for appeal.
Source: G.L. § 1067. G.S. C. § 246. L. 1889: p. 157, § 3. R.S. 08: § 2424. C.L. § 6320. CSA: C. 61, § 10. CRS 53: § 50-1-10. C.R.S. 1963: § 50-1-10.
ANNOTATION
Person, other than bailiff accompanying jury's view, constitutes error. Where a view of the proposed right-of-way by the jury was directed by the court, it is error to appoint guides to aid the jury in their view because no person other than the sworn bailiff in charge of the jury is allowed to accompany the jury on their view of the premises. Colo. Fuel & Iron Co. v. Four Mile Ry., 29 Colo. 90, 66 P. 902 (1901).
Purpose of deposit. The deposit under subsection (1) is required for the sole purpose of making secure the award of compensation to be made for the taking of the land. Teller v. Sievers, 20 Colo. App. 109, 77 P. 261 (1904); Denver & R.G.R.R. v. Mills, 59 Colo. 198, 147 P. 681 (1915).
Costs are recoverable. McClain v. People, 9 Colo. 190, 11 P. 85 (1886); Dolores No. 2 Land & Canal Co. v. Hartman, 17 Colo. 138, 29 P. 378 (1892); Schneider v. Schneider, 36 Colo. 518, 86 P. 347 (1906).
Courts may award costs to respondents in condemnation proceedings. Dolores No. 2 Land & Canal Co. v. Hartman, 17 Colo. 138, 29 P. 378 (1892).
Costs are part of judgment. Dolores No. 2 Land & Canal Co. v. Hartman, 17 Colo. 138, 29 P. 378 (1892).
Attorney fees not allowable. McClain v. People, 9 Colo. 190, 11 P. 85 (1886); Dolores No. 2 Land & Canal Co. v. Hartman, 17 Colo. 138, 29 P. 378 (1892); Schneider v. Schneider, 36 Colo. 518, 86 P. 347 (1906).
Requiring jury's return of special findings within trial court's discretion. Whether or not a jury shall be required to return special findings in a condemnation proceeding rests in the discretion of the trial court and, unless that discretion has been abused to the prejudice of the party requesting such findings, the action of the trial court in refusing to require such findings will not be disturbed. Colo. Fuel & Iron Co. v. Four Mile Ry., 29 Colo. 90, 66 P. 902 (1901).
Refusal of taxation of costs. The trial courts possess discretionary power to refuse a taxation in respondent's favor of costs contumaciously or unreasonably incurred. Dolores No. 2 Land & Canal Co. v. Hartman, 17 Colo. 138, 29 P. 378 (1892).
Court lacks authority to require deposit. The court has no authority to require the petitioner in a condemnation proceeding to deposit a sum to be applied on costs accrued or to accrue. Teller v. Sievers, 20 Colo. App. 109, 77 P. 261 (1904); Denver & R.G.R.R. v. Mills, 59 Colo. 198, 147 P. 681 (1915).