38-7-102. Motion for vesting - procedure with respect thereto. (1) The court shall set a date, not less than twenty-one days after the filing of such motion, for the hearing thereon, and the court shall require at least fourteen days' notice to be given to each party to the proceeding whose interests would be affected by the taking requested. The averments in the motion and the necessity for the vesting of title, or some lesser estate, prior to the final determination of just compensation are deemed admitted unless such averments are controverted in a responsive pleading filed at or before the hearing on the motion for vesting.
(2) At the hearing on the motion for vesting, if such averments have been controverted in responsive pleadings filed at or before the said hearing and if the court has not previously, in the same proceeding, determined the same, the court shall first hear and determine the following matters:
(a) The authority of the petitioner to exercise the right of eminent domain;
(b) Whether the property described in the motion for vesting is subject to the exercise of the right of eminent domain;
(c) Whether the right of eminent domain is being properly exercised in the particular proceeding.
(3) Failure to raise the issues enumerated in subsection (2) of this section, at or before the hearing on the motion for vesting, constitutes a waiver insofar as the said issues relate to the property described in the motion for vesting. The court's order thereon is a final order, and an appeal may be obtained for the review thereof by either party within twenty-one days after the entry of such order, but not thereafter unless the appellate court, on good cause shown, shall, within the twenty-one-day period, extend the time for obtaining an appeal. Appellate review shall not stay the other proceedings under this article, unless the appeal was obtained by the petitioner or unless an order staying such further proceedings is entered by the appellate court upon a showing of irreparable injury.
(4) If the issues enumerated under subsection (2) of this section are determined in favor of the petitioner and further proceedings are not stayed or if further proceedings are stayed and the appeal results in a determination in favor of the petitioner, the court shall hear and determine all matters raised in and relating to the motion for vesting. If the foregoing matters are determined in favor of the petitioner, the court shall appoint three disinterested commissioners, who shall be freeholders, to assess the compensation to which the respondents named in the motion for vesting may be entitled by reason of the appropriation of the petitioner.
(5) The commissioners, before entering upon the duties of their office, shall take an oath to faithfully and impartially discharge their duties as commissioners. Any one of them may administer oaths to witnesses produced before them. The commissioners shall forthwith view the property, hear such testimony, and consider such evidence as is reasonably necessary to enable them to make a preliminary finding of an amount constituting just compensation for the taking of the property of the respondents named in the motion for vesting. The commissioners shall forthwith make, subscribe, and file with the clerk of the court in which such proceedings are had a certified report meeting the requirements of section 38-1-115. Upon the motion of the petitioner filed within fourteen days of receipt of the notice provided for in section 38-7-103 (1), the court shall review the said report of the commissioners, and, upon good cause shown by the petitioner, the court may order a new report by the same or different commissioners, and the said order shall void the report objected to. The new commissioners appointed, if any, and the new report shall be in accordance with the provisions of this article.
e notice provided for in section 38-7-103 (1), the court shall review the said report of the commissioners, and, upon good cause shown by the petitioner, the court may order a new report by the same or different commissioners, and the said order shall void the report objected to. The new commissioners appointed, if any, and the new report shall be in accordance with the provisions of this article.
(6) Such preliminary finding of just compensation and any deposit made or security provided pursuant thereto shall not be evidence in the further proceedings to ascertain finally the just compensation to be paid and shall not be disclosed in any manner to a jury impaneled in such proceedings.
