dissenting.
I respectfully dissent.
An original proceeding is the proper method for determining the validity of an order granting immediate possession to the condemnor. Larson v. Chase Pipe Line, 183 Colo. 76, 514 P.2d 1316 (1973). The petitioners in this case denominated their petition in the nature of certiorari, and failed to name indispensable parties pursuant to C.R. C.P. 19. This is not a certiorari proceeding and the record before us demonstrates that the petitioners’ assertions of error are buttressed only by bald conclusions which are not factually supported by the record. The petition requested that we order the respondent, Public Service Company, to show cause why the order for immediate possession should not be vacated. No relief was sought against the district court or the district judge. Our order directed the respondent, Public Service Company, to show cause why the relief requested in the petition should not be granted. The majority opinion grants relief in the nature of mandamus against parties that have never entered an appearance in this Court.
The respondent named in the petition was the Public Service Company of Colorado. Neither the District Court in and for the County of Weld and State of Colorado, nor the Honorable John J. Althoff, who was the judge of the district court who entered the order for immediate possession, were named as parties. The failure to include indispensable parties requires dismissal. James v. James, 95 Colo. 1, 32 P. 821 (1934); Wesson v. Bowling, 199 Colo. 30, 604 P.2d 23 (1979). On July 30, 1981, after the answer to the rule to show cause was filed, and long after the reply was filed, the caption was amended on this Court’s own motion to include the indispensable parties. No opportunity was given to the newly named respondents to answer or to otherwise plead. This original proceeding ended when the Public Service Company was in effect dismissed by being stricken as the respondent. The newly named parties have not appeared in this Court and are not subject to our jurisdiction.
Petitioners had the burden of proving that the taking was not for a public purpose. See Waynesburg Southern Railroad Co. v. Lemley, 154 W.Va. 728, 178 S.E.2d 833 (1979);1 City of Eldorado v. Kidwell, *719236 Ark. 905, 370 S.W.2d 602 (1963); J. Sackman Nichols’ The Law of Eminent Domain § 7.41 (3d ed. 1981). Moreover, the district judge did not foreclose the petitioner from filing a proper pleading to raise the issue of public use and necessity. The court granted the petitioners the opportunity to have a hearing on the issue of public purpose and necessity when proper pleadings were filed. Section 38-5-106, C.R.S. 1973 (1980 Supp.) provides:
“At any time after jurisdiction has been obtained pursuant to section 38-1-103, the petitioner, upon notice to the respondent pursuant to the Colorado rules of civil procedure, may move for an order for immediate possession. Upon such motion and after hearing, the court, by rule in that behalf made, may authorize the petitioner, upon payment into court or to the clerk thereof of the amount determined by the court as probably sufficient to pay the sum that may ultimately be awarded as compensation and damages for the taking, if not in possession to take possession of such right-of-way, and if already in possession to maintain and keep such possession, and in all cases to use and enjoy such right-of-way during the pendency and until the final conclusion of such proceedings, and the court may stay all actions and proceedings against such petitioner on account thereof. Withdrawal from the sum so deposited may be had as provided in section 38-1-105 (6)(b). At such hearing for immediate possession, the court shall hear and dispose of all objections that are raised at that time concerning the motion for immediate possession, the legal sufficiency of the petition, or the regularity of the proceedings in any other respect.”
In my view, the General Assembly, in setting out the procedure for obtaining immediate possession, did not rob the trial judge of the discretion to determine that the pleadings were insufficient to raise issues that the respondent has asserted as a basis for thwarting the petitioners’ efforts, to obtain immediate possession. The deposit representing the value of the land is sufficient to protect the landowner against damage which results from the order granting immediate possession.
In this case, the petitioners can claim no more than a denial of the right to have their conclusory assertions as to necessity and public use determined at the immediate possession hearing. The court did not foreclose resolution of the issues raised by the petitioners, but declared the pleadings to be inadequate to raise the issue. The assertion that the Public Service Company was condemning the petitioners’ land to provide electric power to a Coors project, could all but be resolved against the petitioners on the record which is before us. The Public Service Company, in providing electric power to the public, necessarily makes the power available for the personal use of the person receiving the service. No user would honor his Public Service Company bill if he did not receive the personal use of the itemized electric power set out in the bill or statement.
Allegations in a motion to dismiss which merely deny necessity for the taking are insufficient. See section 38-6-105, C.R.S. 1973 (1980 Supp.), which substantially restricts the right to question the necessity of *720the taking.2 In my opinion, the same rule should be applied to allegations that condemnation is not for a public use. In Colorado State Board v. District Court, 163 Colo. 338, 430 P.2d 617 (1967):
“It is well-settled law that in the absence of fraud or bad faith, the determination by a public agency as to the need, necessity and location of highways, or other public improvements, is final and conclusive and will not be disturbed by the courts. See, e. g., Daliasta v. Department of Highways, 153 Colo. 519, 387 P.2d 25; Mack v. State Highway Commission, 152 Colo. 300, 381 P.2d 987; and Welch v. City and County of Denver, 141 Colo. 587, 349 P.2d 352.
“Our analysis of the answer to the Petition in Condemnation . . . leads us to the conclusion that the matter of necessity is not here in issue. The issue cannot be raised by merely denying the allegation that the taking is necessary. Nor can it be raised by any conclusory pleading of ‘fraud and bad faith.’ See Lavelle v. Julesburg, 49 Colo. 290, 112 P. 774. Rather, it can only be raised by pleading facts which, if true, would amount to fraud or bad faith.” Id. at 342, 430 P.2d 617.
No allegation of bad faith was made and facts were not asserted which would tend to show bad faith. Thus, the motion was insufficient to raise the necessity issue and was properly denied. Arizona-Colorado Land v. District Court, 182 Colo. 44, 511 P.2d 23 (1973).
No requirement exists which would impose upon the court the duty of determining the issues of necessity and public use at the hearing on immediate possession. The court granted counsel for the Shaklees the right to file an amended pleading which would properly raise the issues which they sought to have determined and resolved at an in limine hearing. Admittedly, the public use issue is one that must be resolved by the judiciary. Potashnik v. Public Service Co., 126 Colo. 98, 247 P.2d 137 (1953); Larson v. Chase Pipe Line, supra.
Broad discretion is granted to the con-demnor to determine what property is to be taken for public use, and its decision is conclusive unless fraudulent or unreasonable. Public Service Co. v. City of Loveland, 79 Colo. 216, 245 P. 493 (1926). The right of eminent domain under our constitution depends upon the General Assembly granting authority to condemn and judicial approval of the purpose as a public use. Buck v. District Court, Colo., 608 P.2d 350 (1980). Section 38-5-106, C.R.S. 1973 (1980 Supp.), does not require, although it permits, the issue of necessity or public use to be resolved at the hearing on immediate possession.
Therefore, I would discharge the rule for failure of petitioners to include indispensable parties and for failure to establish grounds or a basis in fact to invoke our powers to grant relief in an original proceeding.
Justice QUINN authorizes me to say that he joins in this dissent.
. “That the owners of property to be condemned must bear the burden of proof that the condemnation is for private rather than public use was succinctly stated by the Court in Car-*719etta Railway Co. v. Virginia-Pocahontas Coal Co., 62 W.Va. 185, 57 S.E. 401, where in Point 3 of the Syllabus the following language was used: ‘A railroad company, chartered and organized under the laws of this state, is authorized to condemn land under the power of eminent domain, and where it has filed a proper application for such purpose, and shows that it has complied with the law controlling the organization of such companies, it has the prima facie right to exercise such power, and it then devolves upon the owner to rebut the prima facie case by showing that the land sought to be condemned is not for public use.’ For the proposition that it is generally the burden of the landowner to show that the land is to be devoted to private rather than public use. See Brooke Electric Company v. Beall, 96 W.Va. 637, 123 S.E. 587; Pittsburgh & West Virginia Gas Company v. Cutright, 83 W.Va. 42, 97 S.E. 686; and Carnegie Natural Gas Company v. Swiger, 72 W.Va. 557, 79 S.E. 3.” 2A J. Sackman Nichols’ The Law of Eminent Domain § 7.41 (3d ed. Supp. 1981).
. Section 38-6-105, C.R.S. 1973 (1980 Supp.) provides:
“Any defendant has the right to appear in the proceeding and file an answer, in writing, with the clerk of the court, at any time prior to the date fixed for the hearing of the petition but not thereafter, in which answer said defendant shall set forth such legal objections as he may have to the condemnation or appropriation of any property owned by him or to the prosecution of said proceeding. At the time set for the hearing of said petition or such time to which the hearing may have been continued by the court, the court shall proceed to hear any objections raised by the answer, if any there be. The court has no power to inquire into the necessity of exercising the power of eminent domain for the purpose proposed, nor into the necessity of making the proposed improvement, nor into the necessity of taking the particular property described in the petition. If the court finds that the petitioner has the right to prosecute said proceeding and such objections as may have been filed are overruled, the court shall appoint three disinterested commissioners in condemnation, freeholders of real estate in said city or city and county and residents thereof, who shall have the powers and duties provided in this part 1. No person shall be disqualified to act as a commissioner by reason of the fact that he may own either the fee or other interest in or to property that might be assessed a special benefit on account of the proposed improvement.”