CHAPTER 3 EMINENT DOMAIN—A “HOW TO” PRIMER
| Jurisdiction | United States |
(Nov 1984)
EMINENT DOMAIN—A "HOW TO" PRIMER
Gorsuch, Kirgis, Campbell, Walker and Grover
1401 Seventeenth Street, Suite 1100
Denver, Colorado 80202
I. INTRODUCTION
The purpose of this paper is to cover various legal and some practical aspects of condemnation for easements of access by private natural resource companies to reach lands for the purpose of developing them.
Because the law varies from state to state, it is not practical in the space allotted here nor in the time allotted to give this paper to make specific references to all constitutional and statutory provisions as well as appropriate cases from each state within the Rocky Mountain Mineral Law Foundation.
It is my purpose, therefore, to point out for you the issues and problems which usually arise or may arise in condemnations by private companies for easements of access, with some references to constitutional and statutory provisions as well as cases. With the issues in mind it should not be too difficult to find the appropriate law within a particular state if, indeed, such law does exist in that state.
II. CONDEMNATION AS A MEANS TO ACQUIRE ACCESS RIGHTS
The right of eminent domain is an inherent power of the sovereign. Therefore, the Constitution of the United States, or of a state, does not create the right. The constitutional provisions only place limitations upon the use of this right.
The limitations are (1) that private property cannot be taken without payment of just compensation, (2) that the taking must be for public use and (3) that due process must be afforded in the process of the taking.
The determination of compensation is made by negotiations or by a jury or by another type of body, depending on the laws of the state involved. Many rules of law for measuring compensation have evolved over the years. Simply stated the compensation to be paid is the "fair market value" of the property taken. Fair market value has been defined as the fair, actual, cash market value of the property. It is the price the property could have been sold for on the open market under the usual and ordinary circumstances; that is, under those circumstances where the owner was willing to sell and the purchaser was willing to buy, but neither was under an obligation to do so. These
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rules may or may not be those followed by persons in the marketplace buying and selling property. It's important to know this, as I will later demonstrate.
The issue of whether the use is public is a judicial one, although legislative pronouncement will be given consideration by the courts.
Condemnation by public or governmental agencies does not generally pose a difficult question relating to public use. But where private companies are seeking to condemn, that issue is generally raised and often litigated. Since the development of natural resources of this Country is done mainly by private industry, the condemnation of access rights over the lands of others by such private companies has been deemed to be a public use.
III. AUTHORITY TO CONDEMN
A. Constitutional Authority
The Federal Constitutional provisions with which condemnation cases are generally concerned are the Fifth Amendment and the due process clause of the Fourteenth Amendment.
The Fifth Amendment provides, in essence, that private property cannot be taken except upon payment of just compensation and except for public use. This provision generally applies to the Federal Government, although as a result of the due process clause of the Fourteenth Amendment, it can be made applicable to the states as well.
The authority of natural resource companies to condemn emanates either directly from the State Constitution or from legislative acts. Condemnation proceedings by private companies or persons are brought and processed under State Constitutional and statutory provisions. Therefore, in this paper, greater emphasis will be placed upon the State laws, as opposed to the Federal laws.
The constitution of a state may contain, in addition to the general provision that prohibits the taking of private property for public use except upon payment of just compensation, additional provisions which specifically authorize the condemnation of private property for private purposes, such as for private ways of necessity or easements of access for the purpose of developing the natural resources of the state; e.g., mining and oil and gas. For examples see, Article II, Section 14, Colorado Constitution; Article VIII, Section 18, Alaska Constitution; Article II, Section 17, Arizona Constitution; Article II, Section 23, Oklahoma Constitution; Article I, Section 18, Oregon Constitution.
Under the general constitutional provisions, there is no authority to condemn unless the legislature has adopted a statute that authorizes the condemnation. Under the provision authorizing condemnation by private persons, some courts have held that the provision
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is self-executing and no additional statutory authority to condemn is necessary. Other courts have held that statutory authority is still necessary in spite of the specific constitutional provision. Some constitutional provisions specifically define certain mine-related uses to be public, thus eliminating or minimizing judicial inquiry into the issue of public use.
B. Statutory Authority
Absent a self-executing constitutional provision for condemnation, any authority to condemn must exist by virtue of a statute. A limited number of state courts have ruled that such statutes are to be liberally construed, but the majority rule is that they must be strictly construed, in which event the courts have held that the right to condemn must be expressly delegated or must exist by necessary implication. Under the latter situation, the condemnor must be able to show that it falls within...
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