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Condemnation Through Eminent Domain

By Don R. White

Condemnation is the process by which a state, public utility, authorized private entity or federal entity takes private property for a public purpose. In doing so, the government entity exercises the power of Eminent Domain. With this power, a government entity can take ownership of private property if two conditions are met: 1) The land is taken in the Public’s Interest, and 2) The owner of the land is fairly compensated for the land taken.

Condemnation and the exercise of Eminent Domain in Texas are the tools that local, state, and federal governments use for a variety of purposes. Whether widening roads, building power lines, transmission lines, or even laying Oil and Gas Pipelines, the government has utilized this power for a variety of public goals. Landowners, while typically unable to prevent the exercise of the powers of Condemnation through Eminent Domain, do still have rights when their land is being Condemned. For example, any entity seeking to Condemn property must first make a “bona fide” offer to purchase the land, and provide them with a copy of their appraisal report. Any Landowner may hire an attorney to negotiate with the condemning entity and to represent them in any legal proceedings involving the condemnation.

When approached by someone claiming they are seeking to condemn your land, they will be required by law to provide you with a copy of Texas’s “Landowner’s Bill of Rights”, and they must follow the procedures contained therein. Many times, it is important to consult an attorney who can advise you on how to proceed. The parties can negotiate not only the value of the portion of their land being condemned, often referred to as the “take”, but also can negotiate any damages to the remainder.

Remainder damages are generally the most contested issue in a condemnation. When the government takes part of your property, or places a utility on or near your property, it can cause harm to the value of what is left. For example, if a utility company erects a large power line through the center of your property, you may have only lost a small amount of actual land, but the land left over is worth significantly less. The Condemnor is required to pay for these damages, and generally only an experienced attorney can help you determine what they are, and help you maximize your recovery.

While the exercise of the powers of Condemnation through Eminent Domain are well rooted in our nation’s legal history, and necessary in certain regards to a functioning infrastructure, the legal landscape is always in flux, and consulting an attorney is the best method for understanding your legal rights in a Condemnation Case. For example, recently the Supreme Court of Texas decided that the procedure that a Pipeline Company was using to Condemn land for the laying of Oil and Natural Gas Pipelines was Unconstitutional. A farmer in Beaumont stood up to the Pipeline Company, and argued that “A private enterprise cannot acquire unchallengeable condemnation power under Texas Natural Resources Code merely by checking boxes on a one-page form and self-declaring its “common-carrier status” and the Supreme Court of Texas agreed.

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