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Eminent Domain Process, Powers and History, Part 2

Eminent Domain Process, Powers and History

In our last article, we discussed the definition of eminent domain, the right of eminent domain and its history.  Armed with the knowledge contained therein, we’ll continue our discussion by reviewing the types of eminent domain “takings”.

In addition to real property, all property rights and interests are subject to the power of eminent domain.  This includes:

  • Fee taking
  • Taking or modification of existing easements
  • Creation of new easements
  • Riparian Rights (apart from appurtenant lands)

The only limitation upon the power to condemn rights over real property that has been seriously advanced is that a right to be taken by eminent domain must be capable of valuation in money.  (1A Sackman, supra, § 2.1).  In many circumstances, an eminent domain ‘taking’ necessitates more than just payment to the property owner for the land acquired.  For example, a private utility company may invoke its power of eminent domain to acquire an easement to bury a gas pipeline or to construct high voltage power lines across a property.  The acquisition may ultimately restrict or inhibit development on the remaining parcel, thus preventing the property owner from utilizing their property to its highest and best use.  In this situation, a property owner must be compensated for the loss of development potential in addition to compensation for the easement.

Similarly, the loss of air rights is considered a property right that constitutes a taking and requires the payment of just compensation in eminent domain law. The issue of air rights generally arises in one of two different configurations. The first and most common configuration involves the acquisition of air rights from a real estate owner by an aviation authority.  Learn more about air rights in eminent domain.

Last but not least, you can probably imagine and very well appreciate that having access to a property contributes to the overall value of the property.  In fact, if you don’t have access, it will be difficult to generate any value at all for the property.  If a condemning authority removes access to your property or if access is minimized to a level that changes the highest and best use for your property, than this constitutes a taking and the payment of just compensation under eminent domain law is required.

Beyond the traditional exercise of eminent domain, there are other types of “takings” including:

  • Inverse Condemnation
  • Regulatory Takings

Learn more about inverse condemnation and regulatory takings.

Participating in the Condemnation Process

Once the condemning authority establishes the taking, the state or delegated condemning authority typically initiates the eminent domain process by petitioning for condemnation.  For example, Illinois (735 Ill. Comp. Stat. § 30/10-5-10), Iowa (Iowa Code § 6B.3), Minnesota (Minn. Stat. § 117.055), Missouri (Mo. Ann. Stat. § 523.010-523.030) and South Dakota (S.D. Codified Laws § 21-35-1) eminent domain statutes direct the condemning authority to initiate the condemnation process by filing a petition.

In contrast, Wisconsin law directs the condemning authority to make a “jurisdictional offer” to the property owner, who must then file a claim in circuit court to assert their rights in the eminent domain process; including their right to additional just compensation. (Wis. Stat. § 32.05(9)(a), 32.05(2a).  Additionally, Massachusetts eminent domain law directs the property owner to petition the court for damages if they are not satisfied with the condemnor’s offer (Mass. Gen. Laws. Ann 79 § 14).

Although insofar as the courts are concerned, an eminent domain proceeding does not “begin” until a petition is filed, a condemnor will often contact the property owner prior to filing a petition to attempt to acquire the property amicably.  In some states, statutes require the condemnor to attempt to acquire via negotiations before a petition is brought (Iowa, Iowa Code § 6B.2B; Nebraska, Neb.Rev.St. § 76-702, 76-704.01).

Once a petition has been filed, many states appoint condemnation “commissioners” to determine just compensation for the taking.  For example:

Iowa: The County board will appoint 28 possible commissioners and the judge selects 6 commissioners to determine compensation (Iowa Code § 6B.3, 6B.4).

Minnesota: the Court will appoint 3 commissioners (Minn. Stat. § 117.075).

Nebraska: The Court will appoint 3 “appraisers”, although only one must be a credentialed real estate appraiser (Neb. Rev. St. § 76-706).

Wisconsin: the Court appoints 6, 9, or 12 commissioners depending on the size of county where condemnation is occurring (Wis. Stat. § 32.05, 32.08).

A property owner may settle for the commissioner’s award, or they may appeal the amount of just compensation.

In addition to appealing the amount of just compensation, a property owner may also challenge the authority to condemn and the public use.  In a subsequent article, we’ll discuss a property owners right to appeal a condemnation decision for additional just compensation, authority to condemn and the public use.


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