Section 8 Lawful Authority

• Library: Condemnation Practice 2009

A taking within the scope of inverse condemnation should be understood to be a legal taking in the sense that it was done in the exercise of lawful authority. The duty of the government to compensate a citizen for damages to the citizen’s property arises only for damage occasioned through the lawful exercise of the governmental powers in the construction or maintenance of projects for the public benefit. The taking entity, to be subject to an action for inverse condemnation:

• must be lawfully instituted

• must be engaged in a lawful purpose; and

• when required, must be operating in accordance with proper directive and not ultra vires

Thus, as an example, in a proper case, certain public utility companies must first have a certificate of convenience and...