16.1 A. Generally

• Jurisdiction: New York

A. Generally

Under the Anglo-American system of law, all property is held subject to the superior right of the sovereign to invade the owner’s interest and acquire that interest absolutely.²⁹⁷⁹ The just compensation clause is “not a grant of the power to take private property for a public use (generally referred to as the power of eminent domain); that power is inherent in any sovereign, and requires no constitutional or legislative grant.”²⁹⁸⁰

This power may be exercised by the sovereign or delegated by the sovereign to certain entities, as, for example, public utilities, to meet their needs in servicing the public.²⁹⁸¹ But the existence of this power in the sovereign brings with it questions of the quality and quantum of title lodged in the condemning authority and of the remaining title in the owner where there is a partial taking or less than a fee is condemned. This is of interest not only to the condemning authority and the condemnee but also to those who may later acquire these titles. The following comments are designed to provide some of the benchmarks relative to these questions.

In the state of New York, the condemning authority may be the state itself, authorized agencies and departments of the state, municipal corporations, school districts, special districts, public utilities, railroads, the United States of America, departments and agencies thereof and any other entities or groups created by any sovereign and expressly authorized to exercise the power of eminent domain.

Prior to 1978, there existed in the state of New York more than 45 separate statutes authorizing condemnation by various entities duly authorized to acquire interests in property.²⁹⁸² Although most of the enactments have been repealed and were superseded when the Eminent Domain Procedure Law (Em. Dom. Proc. Law) took effect,²⁹⁸³ the titles to properties acquired under such former statutes continue to be governed by the laws in effect at the time the eminent domain powers were exercised.

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Notes:

^[2979] . Philip Nichols, The Law of Eminent Domain §§ 1.12–1.14 (3d ed. 1990); United States v. Jones, 109 U.S. 513 (1883).

^[2980] . Nika Corp. v. City of Kansas City, 582 F. Supp. 343 (W.D. Mo. 1983) (citations omitted); see also Georgia v. City of Chattanooga, 264 U.S. 472 (1924). This power lies dormant until it is exercised, but it can be resumed at the will of the legislature. Soc’y of N.Y. Hosp. v. Johnson, 5 N.Y.2d 102, 180 N.Y.S.2d 287 (1958).

^[2981] . Mitchell v. Harmony...