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General Rights With Eminent Domain

08:27AM Feb 07, 2015

With the proliferation of new sources of petroleum and natural gas, more and more farmers are learning that new pipelines are slated to run through their property. The initial surveying and construction of pipelines can cause substantial disruptions. Once the pipelines are built, the land is still subject to use restrictions and the occasional incursion of maintenance employees. However, the sense of helplessness and the lack of available options might be the most frustrating headache a landowner faces when property is condemned for a public project.

The use of eminent domain is a major source of tension between a government and its citizens. The deck is heavily stacked in favor of the government and private entities cloaked with eminent domain power, such as railroads, pipelines and utilities. 

When eminent domain authority is invoked to take your land, it is not usually a question of whether you will get to keep your land, but instead how much compensation you will receive for it. It’s a good idea to talk with a lawyer to understand the extent of your rights, which vary by state. 

Here are some general considerations regarding eminent domain and farmland:

  • Opportunity for negotiation: Most states require landowners to receive advance notice and an opportunity to negotiate terms with an eminent domain-empowered entity prior to the initiation of condemnation proceedings (where a court or citizen panel sets a value for your property). Although each individual situation varies, the negotiation period oftentimes presents an opportunity for a landowner to maximize the compensation received for their land. Some landowners will hire their own appraisers to build their case. Condemning authorities can be receptive to negotiations so they can forego the expense of condemnation proceedings.
  • What is “public” use? The 5th and 14th Amendments to the U.S. Constitution provide that property can be “taken” for use by the public. What qualifies as a “public use” varies from state to state. Every state provides that land can be taken or burdened for the construction of highways, railroads, utilities infrastructure, pipelines and government buildings. However, “public” uses might extend beyond the provision of services. In 2005, the Supreme Court held that taking property for private economic development that would broaden the tax base was an allowable “public” use. In reaction to this controversial decision, many states have rewritten their eminent domain laws to limit the circumstances where eminent domain can be applied.
  • Just compensation: Landowners are entitled to “just compensation” for land taken or burdened by eminent domain. What constitutes just compensation varies by state law and case decisions. In general, a landowner is entitled to the value of the land that is condemned or an easement (if the landowner retains the title). Landowners can also recover damages to their remaining property. Some states also allow recovery for lost profits or lost “goodwill” that results from a taking.
  • The scope of the taking: If a landowner only surrenders an easement in a taking, he or she still retains the rights to control uses that exceed the terms of the easement. For instance,many fiber optic companies and “rails to trails” programs that operate in railroad right-of-ways have had to pay out substantial civil damages for trespass because these uses exceeded the original easements obtained by railroads. 

This column is not a substitute for legal advice. 

This column is the first in a three-part series on eminent domain. The next two installments will discuss inverse condemnation and regulatory takings. eminent_domain