Eminent Domain

Under the Fifth Amendment of United States Constitution, the government is provided the power to enforce eminent domain and take private property for public use. This provision allows this provision as long as adequate compensation is being made for the property. Article 1, Section Seventeen under the Texas Constitution prohibits the taking, damaging or destruction of property for public use without adequate compensation. Generally, there are four elements of eminent domain but ultimately the actor must be the state or a private party authorized by the state to condemn the property. The power to condemn must be conferred by the legislature and only upon a two-thirds vote of both houses will it be granted. The primary private parties that are empowered to perform eminent domain are gas or electric corporations, groundwater conservation districts and common carrier pipelines. Once the property has been identified, the Condemner must provide plans for the public project and indicate the exact location of the private land needed for the project. Once this information is acquired, a declaration must be made that certain property rights must be obtained to complete the project and that all property owners involved must be notified.

Element one consists of the property taken must be for public use and in 2009, voters approved a constitutional amendment further clarifying public use. To understand the purpose of public use, it is necessary to note it is statutorily described as the ownership, use and enjoyment of the property by the State, a political subdivision of the state, or the public at large, or an entity granted the power of eminent domain under law, or the elimination of urban blight. Generally speaking, the court system often decides the specific facts of a case made for eminent domain and condemnation. Often times, projects are categorized as transportation based, utility based, commercial projects, water ways, or public projects such as schools, parks and recreation or hospitals. The public use element and the 2009 amendment further provide limited government and aids in the Texas belief system.

The second element for consideration is public necessity. This provision identifies and pertains to the amount of land that can be taken. Legislature can not authorize more property than is required by the condemnor to serve for public use. As previously discussed in the public use area, utilities are often designated as easements thus allowing the land owner to retain the property, but limiting the use of that portion of landed needed for special use. Public necessity is also identified by the principle that the law regards the welfare of the public as superior to individual interests and where there is a conflict of this, individual interests must give way to the greater public. This can be represented as destruction of property due to wild fires or disease.

Just or adequate compensation is the third element for discussion in eminent domain. Eminent domain is often misconstrued as property only meaning the actual land involved. Under the Texas Constitution, property also includes every right that accompanies and incidental to the physical land. Also, it is important to identify that Texas statutes refer to adequate compensation in the terms of market value as lined under State v. Carpenter, 89 SW 2d 194, CT of Civil App., 1936, and further defines market value as “the price the property will bring when offered for sale by the one who desires to sell, but is not obligated to sell, and is bought by one who desires to buy, but is under no necessity of buying.” Establishing the market value also depends on whether all of the property owner’s land is being condemned in a certain tract or only a portion is being utilized for eminent domain. In either instance, the language must be written in plain terminology so the average landowner can easily read and identify the designated property and that a certified appraisal must be performed and provided to all parties involved.

The fourth and final element of eminent domain is due process. This is a constitutional directive levied against each state that allows for reasonable notice and opportunity be heard to present a claim or defense. In stage one of this process, the condemnor can make a bona fide offer to the owner for purchasing of the property. This does not require legal involvement, but if there is not an agreement, then stage two can be evoked. In stage 2 the condemnor petitions the court after the final offer has been rejected by the property owner. The court then assigns three disinterested real property owners as special commissioners to make a determination on the fair market value of the property involved based on the submitted affidavit. They conduct a hearing where the parties involved can present their case and ultimately the special commissioners make a decision based on a majority control. Stage three, the final stage of due process if needed, allows for an appeal to occur if either party is dissatisfied with the special commissioner’s decision. The appeal must be filed with the appropriate judge before the first Monday following the twentieth day after the filing of the special commissioner’s decision. The case will then be tried solely before the judge unless a jury trial is requested. The final verdict will be provided to all parties and the final filing of the property will be determined and processed.

Eminent domain is constantly occurring with the growth of Texas and the need for the greater good of the people. Roadways, utilities and infrastructure development requires the government to identify needed private property to support economic growth for our state. This coupled with schools, hospitals and parks and recreation poses the need for positive communication and clear direction of public use of lands and its delegated necessities.