specially concurring.
I would dismiss the appeal. Petitioner, Steamboat Lake Water and Sanitation District, previously filed a motion to dismiss the entire appeal based on section 88-1-111, C.R.S$.2010. The motions division of this court deferred ruling on the motion to this division.
As pertinent here, section 38-1-111, part of the eminent domain statutes, provides:
In cases in which compensation is ascertained, if the owner of the property taken or affected prosecutes an appeal as provided by law and the Colorado appellate rules, the petitioner may pay into [the] court or to the clerk thereof the amount of compensation ascertained and awarded for the use of the owner and shall thereupon be entitled to take possession and use the property taken or affected the same as if no such appeal had been taken. The money so deposited shall remain on deposit until *506such appeal has been heard and determined. If the owner elects to receive such money before the determination of said appeal, the appeal shall thereupon be dismissed so far as such owner is concerned.
(Emphasis added.)
Here, petitioner deposited the full amount of compensation awarded, $90,000, plus interest, and respondents, Vance E. Halvorson and Sharon L. Halvorson, withdrew the entire amount. Respondents having elected to receive those proceeds, pursuant to the plain and unambiguous language of the statute, their appeal "shall" be dismissed. See Foiles v. Whittman, 288 P.3d 697, 699 (Colo. 2010) ("Because it may be presumed that the General Assembly meant what it clearly said, where the statutory language is unambiguous, we do not resort to further rules of statutory construction to determine the statute's meaning." (citing Bd. of Med. Exam'rs v. Duhon, 895 P.2d 148, 146 (Colo.1995))); see also Wells Fargo Bank v. Kopfman, 226 P.3d 1068, 1072 (Colo.2010) ("A reviewing court begins the analysis with the plain language of the statute. If the statute is clear and unambiguous on its face, then the court need look no further.").
While the majority notes the general rule that one who accepts the benefits of a judgment may not seek reversal of that judgment on appeal, it goes on to conclude that because respondents do not challenge the amount of the jury's verdict, they may proceed with parts of their appeal. The language of seetion 38-1-111 is mandatory, however, and does not admit of any exceptions.
Further, respondents here are challenging the verdict to the extent that they seek a determination on appeal that the title the District obtained in the condemnation proceeding is subject to a condition that the property may only be used for water and sewer purposes and is thus subject to a possibility of reverter in favor of respondents in the event the property is ever used for a different purpose. Further, respondents are claiming that they remain the owners of the oil, gas, and mineral interests in the property. The $90,000 award, however, was based on the appraisal evidence of respondents' own expert witness, who stated that her valuation was based on "the market value of the [property] in unencumbered, fee simple title of cwnership." - (Emphasis added.)
Thus, having received compensation based on the full market value of a fee simple interest in the property, respondents should not be permitted to proceed with an appeal in which they challenge the nature and extent of the title received by the District.
I recognize that in an earlier case a division of this court allowed an appeal to proceed in a context somewhat similar to that presented here. In Colorado Mountain Properties, Inc. v. Heineman, 860 P.2d 1888 (Colo.App.1993), the condemnee had accepted an award of $70,000 for two condemned subdivision lots and did not challenge that award on appeal. It had, however, appealed a separate award of $100 for nominal damages for the taking of a roadway easement. In concluding that the condemnee's appeal of the $100 award did not have to be dismissed, the division referred to section 38-1-111, but did not quote or analyze it or purport to interpret its language.
Because the holding in Colorado Mountain Properties is contrary to the plain, express language of section 38-1-111, I would decline to follow it.