dissenting.
Because I believe that the majority is improperly substituting its factual determinations for those of the commission, and therefore failing to afford appropriate deference to the commission, I respectfully dissent.
I. Facts
This is an eminent domain proceeding brought by E-470 to acquire a portion of the Hellerstein property. The entire Hellerstein property consisted of approximately 351 acres, which had been annexed and planned in 1987 by the City of Aurora as a designated commercial office and industrial use area under a Master Plan. The property is located at the interchange of Gun Club Road and Interstate 70.
E-470 (Authority) filed a Petition in Condemnation as to 62 acres claimed in fee, 11.3 acres in permanent easements, and 1.8 acres in construction easements. The acquisition took most of the designated commercial land and left the industrial uses and some office uses.
There were two significant legal issues in dispute during the proceeding: the first was whether the Annexation Agreement with the City of Aurora required Hellerstein to dedicate the necessary property without compensation. The trial court ruled in favor of the landowner on that issue; the court of appeals agreed, and we did not accept certiorari on that issue.
The second issue was whether Hellerstein could present evidence concerning the impairment of access to the remaining property that would be caused by the taking. Heller-stein offered evidence at an in limine hearing that the E-470 project would eliminate access from the property to Gun Club Road. The Gun Club Road access was a part of the general development plan for the property and was designed in such a way that the future development of the property would include an easy access to I-70. The access for the property after the taking was Smith Road. Hellerstein argued that Smith Road was not a public road, and that, therefore, it could not be relied upon for consistent access. The trial court concluded that Smith Road was "going to be there for a long time" and, accordingly, that the E-470 project did not substantially impair access to the remainder of the Hellerstein property. Hence, the court held that Hellerstein could not present evidence on compensation related to access. That issue was not appealed.
The hearing on damages went forward before a duly-appointed commission of landholders as required by section 38-1-101, 10 C.R.S. (2001). The commission found the value of the property taken was $1,823,691.15, and damages to the residue were $2,888,272.80, with a special offset benefit of $297,000. The trial court denied the Authority's motions for post-trial relief, denied Hellerstein's motion for attorney fees, and entered judgment in accordance with the commission's findings.
At the damages hearing, the landowner put three experts on the stand in the case-in-chief, Because the court's ruling that the experts could not testify about damage caused by the change in access came just before the trial was scheduled to begin, the landowner's experts were not prepared to separate out damages caused by access impairment and other kinds of damages to the remainder. As a result, the landowner's experts did not explicitly assign a value to damage to the remainder of the property, with the exception that one expert stated it would cost $100,000 to redo the planning and zoning of the property.
On the other hand, the landowner did present evidence that there was damaging impact to the remainder of the property caused by the taking. Specifically, one of the landowner's experts testified that the taking caused the remainder to be moved back from the I-70 interchange and caused a loss of visibility to the remainder. Maj. op. at 1160. Such testimony was not subject to any preclusion regarding access and was introduced without objection and as a factor unrelated to the loss of access. Maj. op. at 1160.
During cross-examination of the Authority's expert, the landowner's attorney elicited testimony about damage to the remainder of the property due to the taking. That expert testified that he had down-graded a piece of property that he used for determining com*1163parable sales for purposes of valuing the taking because of loss of visibility to I-70 and an interchange. Specifically, he adjusted the property downward by $9,168 per acre because of those two factors. The questions and answers were:
Q: And the first step in your analysis that you did was to take sale number 1, L-1, which was the location at the southwest corner of Pefia Boulevard or Buckley and I-70, that particular transaction, and adjusted for the corner location; did you not?
A: I adjusted it for visibility to I-70 and the interchange, yes.
Q: And that adjustment that you made was a downward 25 percent, correct?
A: Correct.
Q: Or, $9,168 per acre, correct?
A: Correct.
The commission ultimately found the value of the property before the taking to be between $18,324 per acre and $21,785 per acre. The commission also awarded damages to the residue in the amount of $2,888,272.80 or $9,827 per acre for each of the 292.9 acres.
In arriving at that determination, the commission was guided by the stipulated instructions of law given by the trial court. Specifically, the instructions directed the commission to determine the amount of com-pensable damages (Instruction No. 1) by holding Hellerstein to a preponderance of the evidence burden of proof, regardless of which party may have produced such evidence (Instruction No. 9). The commission understood that they were the sole judges of the facts and of the credibility of witnesses (Instruction No. 10), as well as of the weight to be assigned to an expert opinion (Instruction No. 11). 4 *
More specifically, two complete instructions addressed the determination of com-pensable damages, if any, and the value of specific benefits, if any, to the residue of the property.1 Those instructions directed the *1164commission to determine if the E-470 taking caused damages to the remaining Hellerstein property (Instructions Nos. 5 and 6) and to measure those damages, if any, by the difference between the value of the property before and after the taking (Instruction No. 5). Damages were to be measured by the effect of the acquisition of, and the expected uses of, the property actually taken on the market value of the residue (Instruction No. 5). Lastly, the instructions prohibited the commission from considering that the remainder of the property might be less desirable for certain purposes, or less enjoyable to the owner. Rather, damage to the remainder of the property could only arise out of the natural, necessary, and reasonable results of the taking and a measurable reduction in value. The instructions noted that the court had determined, as a matter of law, that the commission could not award damages arising from loss of access to Gun Club Road.
II. Deference and Presumptions
As the majority notes, maj. op. at 1157, we afford the same degree of deference to a condemnation commission's certificate of ascertainment and assessment as we do to a jury's verdict. Aldrich v. Dist. Ct., 714 P.2d 1321, 1324 (Colo.1986). Such award can only be set aside by a reviewing court if no credible evidence supports it, and it is, in fact, contrary to the evidence adduced at trial. Maj. op. at 1157-1158.
Our case law is clear and consistent in holding that an appellate court may not set aside a jury verdict if the jury has been properly instructed and there is competent evidence from which the jury could have arrived at its conclusions. In Fowler Irrevocable Trust 1992-1 v. City of Boulder, 17 P.3d 797 (Colo.2001), we upheld the portion of a condemnation award that concerned restoration costs to remainder property on the basis that "[wle will not set aside jury awards if they are based on the evidence and the instructions have not misled the jury." Id. at 806. In Bohrer v. DeHart, 961 P.2d 472, 476 (Colo.1998) we held that "we do not set aside a jury verdict unless the court's error is inconsistent with substantial justice." See also Stewart v. Rice, 47 P.3d 316 322 (Colo.2002) (citing Bohrer, 961 P.2d at 477 ("We defer to jury verdicts when jurors have been properly instructed and the record contains evidence to support the jury's findings.")); Hock v. N.Y. Life Ins. Co., 876 P.2d 1242, 1259 (Colo.1994).
In short, as a reviewing court, we honor the jury verdict provided that the jury received correct instructions of law-which is not at issue here-and provided that the verdict is supported by evidence in the record.
HIL. Evidence of Diminution in Value
The majority does not adopt the court of appeals' rationale that a condemnation award cannot be based simply on the difference between the before-taking value assigned by one side's witness and the after-taking value of the other side's witness. E-470 Pub. Highway Auth. v. Jagow, 30 P.3d 798, 805 (Colo. (citing Genge v. City of Baraboo, 72 Wis.2d 531, 241 N.W.2d 183 (1976)). However, the majority does conclude that there was no evidence linking the before-taking and after-taking property valuations to the condemnation project other than the $100,000 replanning cost. Maj. op. at 1160-1161. The majority cites La Plata Electric Ass'n v. Cummins, 728 P.2d 696 (Colo.1986), for the proposition that there was not sufficient evidence to demonstrate that the difference in value was caused by the taking.
Lao Plato concerned the propriety of awarding damages to the remainder of a landowner's property occasioned by the taking of a power line easement. Id. at 696-97. The dispute centered on whether the reduction in market value of the remainder was recoverable or whether it was identical in *1165kind to that suffered by the community at large and therefore not recoverable. Id. at 698. The court held that "the very nature of a power line-which generally runs for some distance across or near various properties from which it can or must be seen-necessarily causes ... adverse aesthetic effect." Id. at 700. Hence, the court upheld damages based upon a reduction in property value:
For the foregoing reasons, we hold that when a portion of a parcel of land is taken from a property owner in a condemnation proceeding, that landowner is entitled to recover all damages that are the natural, necessary and reasonable result of the taking, as measured by the reduction in the market value of the remainder of the property. The property owner is entitled to present any relevant evidence concerning diminution of market value caused by the taking. If the evidence supports a finding that a diminution of market value has occurred, compensation must be awarded.
Id. at 708 (emphasis added).
I do not dispute that the taking must have caused the damage, although I would suggest that evidence of value before the taking and after the taking showing a reduction in value could be cireumstantial evidence of such causation.
Here, I suggest that the majority is resolving factual disputes appropriately left to the commission. Specifically, there is evidence that the taking damaged the property's visibility from I-70. The trial court's ruling did not preclude evidence on that issue. The landowner obtained testimony from the opposing expert that a loss of visibility would cause damage to the remainder of the property, and that such damage could be quantified. Whether that evidence was persuasive or credible is an issue left to the discretion of the commissioners-it appears in the record, and is some support for the commissioner's conclusion.
Admittedly, the landowner's attorney did not tie all of the evidence together either in opening or closing, but that goes to oratory, not to proof. The evidence existed in the record from which the commission could have concluded that the remainder was damaged by the taking, in the specific amount found in the certification.
Remembering that we uphold a condemnation award when the instructions of law are correct and there is some evidence in the record to support the award, I believe this award should be upheld.
In my view, there is sufficient evidence in the record to support a determination by the commissioners that the taking caused damage to the remainder of the property. Further, there is evidence in the record supporting a before-taking valuation of the remainder that was approximately $9,000 per acre greater than the after-taking valuation.
IV. Conclusion
Accordingly, the award of the commissioners deserves the deference we normally afford such findings by a jury. Because I believe the majority has failed to adhere to that standard of deference, I respectfully dissent.
I am authorized to state that Justice BENDER joins in this dissent.
. In full, those instructions read as follows:
Instruction No. 5
You are also to determine the amount of compensable damages, if any, and the value of specific benefits, if any, to the residue of the Hellerstein/Farkas property and, after having determined any such damages or benefits, you should state the amount of any damages in your certificate and the amount and value of any benefits in your certificate.
Residue" means that portion of any property which is not taken but which belongs to the Respondents, Stephen A. Hellerstein, Trustee; Stephen A. Hellerstein, Successor Trustee to L.A. Hellerstein, Trustee, and Howard L. Far-kas, and which has been used by, or is capable of being used by, the Respondents, together with the property actually taken, as one economic unit.
Any damages or benefits are to be measured by the effect the acquisition of, and the expected uses of, the property actually taken has on the reasonable market value of the residue. Any damages are to be measured by the decrease, if any, in the reasonable market value of the residue, that is, the difference between the reasonable market value before the property actually taken is acquired and the reasonable market value of the residue after the property actually taken has been acquired. Any damages which may result to the residue from what is expected to be done on land other than the land actually taken from the Respondents and any damages to the residue which are shared in common with the community at large are not to be considered.
Similarly, any benefits to the residue are to be measured by the increase, if any, in the reasonable market value of the residue due to the construction of the E-470 Highway. For anything to constitute a specific benefit, however, it must result directly in a benefit to the residue and be peculiar to it. Any benefits which may result to the residue but which are shared in common with the community at large are not to be considered.
Nothing should be considered as a factor of damages or benefit unless you find that it increases or decreases the reasonable market value of the residue.
Any finding of damages or benefits to the residue shall not affect your determination of the value of the property actually taken.
You should determine any damages or benefits as separate, independent items. You should not attempt to balance the two. Any adjustment or balancing must be done by the court.
Instruction No. 6
In order for you to determine damages to the residue, you must find that the residue itself has been or will be damaged by some diminution in its reasonable market value, either as a result of its being severed from the land actually taken or because the adjacent public use on the land actually taken from the Respondents, but not on other land, will render the residue less valuable.
Infringement of the owner's personal pleasure or enjoyment in the use of the residue or even the owner's annoyance or discomfort do not constitute compensable damages. Neither does the fact that the residue may be less *1164desirable for certain purposes. Such matters are not compensable except as they are a natural, necessary and reasonable result of the residue being severed from the land actually taken or of the uses expected to be made of the land actually taken, and are measurable by a reduction in the market value of the residue.
The Court has determined, as a matter of law, that any damages arising from the loss of access to Gun Club Road are not compensable and shall not be awarded by you.