dissenting.
Today the majority holds that when the Department of Transportation condemned property for a state highway prior to 2008, it also received title to the subsurface mineral estate lying beneath the land necessary to build the highway. Yet section 38-1-105(4) *134provided at the time that "[nlo right-of-way or easement acquired by condemnation shall ever give the [condemnor] any right, title, or interest to any vein, lodge, lode, or deposit found or existing in the premises condemned, except insofar as the same may be required for subsurface support." I would hold that this limitation on the condemnation of a right-of-way generally applied to the Department's condemnation for state highway purposes, and that therefore the Department had no authority to condemn any mineral estate in this case, "except insofar as the same may be required for subsurface support." Accordingly, I respectfully dissent from the majority's opinion.
The majority concedes that "section 88-1-105(4) could reasonably be understood, even before the 2008 amendments, to bar the acquisition of a mineral estate not required for subsurface support when condemning a right-of-way." Maj. op. at 181-82. The question, then, is whether that limitation applied to condemnations of rights-of-way by the Department for the purpose of building highways under section 48-1-208 prior to the 2008 amendment making the limitation express. I would hold that the Department's authority was always so limited, and that the 2008 express limitation was merely a clarification in the law.
Section 48-1-208 limits the Department's condemnation authority to condemning land interests to build a "state highway," which is defined as "a right-of-way or location ... designated for the construction of a state highway upon it." § 48-1-204, C.R.S. (2010). By using the term "right-of-way" in section 48-1-204, the legislature subjected the Department's condemnations under section 48-1-208 to the limitations set forth in section 38-1-105(4), which provided that mineral rights would be condemned only to the extent necessary for subsurface support. And while the majority spends a good amount of time traversing the various meanings of the term "right-of-way," maj. op. at 182-88, however that term is defined, it is subject to the limitations on subsurface mineral condemnations set forth in section 38-1-105(4). In sum, read together, sections 38-1-105(4) and 483-1-204 and -208 confine the Department's condemnation authority regarding mineral rights to only those rights necessary for subsurface support.
Section 48-1-208(1) more broadly supports this reading by describing "the purpose" for which the Department may condemn land-namely, "to establish, open, relocate, widen, add mass transit to, or otherwise alter a portion of a state highway." (Emphasis added.) The only condemnation of mineral rights that would further this express "purpose" is the condemnation of mineral rights to the extent necessary to support the building of the highway-that is, the same limitation described in section 88-1-105(4). Section 48-1-204 further reinforces the limited purpose for which land may be condemned by identifying the condemned land as that "designated for the construction of a state highway upon i." (Emphasis added.) Again, the purpose for which land is to be condemned is to support the building of a highway, not to pursue mineral rights unnecessary to the building of the highway.
In 2008, the legislature passed S.B. 08-041, which expressly limited the Department's condemnation authority over mineral rights to only those rights necessary for subsurface support. See § 48-1-209, C.R.S. (2010). In my view, S.B. 08-041 merely made express the limitation on the Department's authority that was already imposed by sections 38-1-105(4) and 48-1-204 and -~208. See Ch. 179, § 1, 2008 Colo. Sess. Laws 627 (entitling S.B. 08-041 as a bill "Concerning the ownership of minerals beneath land acquired by governmental entities, and, in connection therewith, clarifying that a governmental entity may acquire interests in such minerals through condemnation only to the extent required for subsurface support")(emphasis added). Because the Department's authority to condemn mineral rights was, and is, limited to only those rights necessary for subsurface support, I respectfully dissent from the majority's opinion.