I was surprised yet happy to read that District Court Judge Scott Skavdahl in Natrona County, Wyoming ruled that a case involving the state of Wyoming’s right to take property from a private owner can proceed to trial. The condemning authority in this case is the Wyoming Department of Transportation (WYDOT), who is attempting to acquire property from private owners for a road construction project.
Based upon a Casper Star Tribune article, it appears that the issues to be litigated are necessity and whether or not the state followed the eminent domain laws by making a good faith effort to acquire the property prior to initiating condemnation procedures.
In Wyoming, prior to initiating condemnation procedures, a condemning authority must make a reasonable effort to acquire the property by negotiation (Wyo. Stat. § 1-26-509). Additionally, the condemning authority’s initial written offer must be made at least 90 days before commencing a condemnation proceeding (Wyo. Stat. § 1-26-509). These are just several examples of steps a condemning authority must take in order to make a good faith effort to acquire property prior to initiating condemnation procedures.
The public necessity issue in this case relates to the amount of property the state is attempting to acquire. The property owners claim that the state is taking 210 feet more than what is necessary to complete the project. The state argues they need a wider ROW in order to control erosion and build embankments. Additionally, they claim they will eventually widen the road to four lanes, which would require more property.
In order for the government, or condemning authority, to use eminent domain to acquire property, several conditions must be met: the taking must be for a public use and the property owner must be paid just compensation. There is also the issue of necessity, which I consider a sub-class of public use. Necessity is the test to determine the amount of property needed to adequately undertake the public purpose. If a public road requires a 100-foot wide strip of land, a strip of land 200 feet wide could not be taken because it would exceed what was necessary to accomplish the public purpose and thereby fail the test of necessity.
In this case, the issue of public use is met because the acquisition is for a road construction project, and the issue of just compensation can be litigated during the eminent domain proceeding. The issue of necessity, however, has not been fully satisfied in this case. WYDOT can only acquire the amount of the property necessary to construct a two lane road. If the amount of property they are attempting to acquire is more than what is necessary to construct the 2 lane road, then the taking does meet the necessity test.
While it’s clear that some property must be acquired in order to complete this project, it’s not overly apparent how much property should be acquired, and therefore a trial seems necessary. Fortunately for the property owners, Wyo.Stat. § 16-7-116 states that reasonable attorney’s fees will be reimbursed to a property owner if the court finds that the property can not be taken by eminent domain.
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