Eminent domain is the power of the government to take the private property of citizens, including businesses, for public use. Governmental entities that may exercise the power of eminent domain include the U.S. government, the state of Texas, counties, cities, and other branches of government such as water districts or other special purpose districts. Additionally, certain private parties exercising public functions, such as utility companies and pipeline companies, are often granted the power of eminent domain. The Takings Clause of the Fifth Amendment to the United States Constitution limits the government’s power of eminent domain by requiring that the taking be for a “public use” and that the government provide the property owner “just compensation.” Texas has a similar constitutional protection at Article I, Section 17 of the Texas Constitution. Common public uses include highways, roads, drainage projects, pipelines, water treatment plants, electric transmission lines, and schools. Condemnation is the process by which the government exercises its right of eminent domain. Businesses and individual landowners alike are all subject to the government’s power to condemn their property for public use.
Types of Takings
A taking can be either physical or regulatory. A physical taking involves an actual taking or a physical invasion or seizure of property or property rights. A regulatory taking, sometimes called “inverse condemnation,” involves government regulation of property that exceeds its constitutional power to regulate without just compensation. In both cases, the government’s taking of property may affect a person’s property in its entirety, a portion of the property (a partial taking), or only certain rights in the property (such as an easement to use only certain rights in the property).
Just compensation is generally determined by the fair market value of the property being taken. Where the government takes only part of the land or an easement, the property owner is also generally entitled to recover any depreciation in the value of the remaining property (called remainder damage).
When the government initiates condemnation proceedings, landowners have numerous options available to them, including the right to legal representation, the right to challenge the government’s offers, the right to have the issue of market value heard before a panel of court-appointed Special Commissioners, and the right to have the Special Commissioners’ decision reviewed by a court, or even a jury. Experienced legal counsel is a valuable asset during the condemnation process as there can sometimes be unforeseen impacts on property that an experienced specialist can identify. Presenting adequate evidence of the value of your property is essential to obtaining the highest possible compensation. Successfully presenting this evidence requires both an understanding of the legal issues that underlie the valuation process and experience in this type of proceeding.
The condemnation team at Locke Lord are experts in eminent domain and condemnation matters and have successfully represented clients both large and small in every stage of the process. We offer services both on a contingency fee basis or on an hourly rate basis.