Condemnation

The Purpose and Scope of “eminent domain”:

Exercise of the governmental power of eminent domain enables the United States to:

• acquire privately owned lands for congressionally authorized public uses while
• ensuring that landowners are compensated for these lands.

The U.S. Supreme Court has recognized that:

The powers vested by the Constitution in the general government demand for their exercise the acquisition of lands in all the States. These are needed for forts, armories, and arsenals, for navy-yards and light-houses, for custom-houses, post-offices, and court-houses, and for other public uses. If the right to acquire property for such uses may be made a barren right by the unwillingness of property-holders to sell, or by the action of a State prohibiting a sale to the Federal government, the constitutional grants of power may be rendered nugatory, and the government is dependent for its practical existence upon the will of a State, or even upon that of a private citizen. This cannot be.

Kohl v. United States, 91 U.S. 367, 371-2 (1875).

Safeguarding Landowners and Taxpayers:

The Fifth Amendment to the United States Constitution, as interpreted by the Supreme Court, safeguards landowners and taxpayers.

The right of eminent domain … cannot be exercised except upon condition that just compensation shall be made to the owner; … it is the duty of the State … to see that it is just, not merely to the individual whose property is taken, but to the public which is to pay for it.

Bauman v. Ross, 167 U.S. 548, 574 (1897).

Conditions for Exercising Condemnation:

Federal agencies condemn for any of the following reasons:

• A landowner is unwilling to sell at any price;
• The acquiring federal agency and the landowner cannot agree on value;
• Defects in record title prevent a landowner from conveying clear title;
• One or more landowners may be missing or unidentifiable.

Requirements for Federal Condemnation:

In order for the Land Acquisition Section to initiate a condemnation case, the client federal agency must establish that Congress has:

• Granted authority to the agency to acquire property for a public purpose; and
• Appropriated funding for the acquisition.

Federal Declaration of Taking:

Most federal condemnation cases are initiated by filing a Declaration of Taking pursuant to the Declaration of Taking Act, 40 U.S.C. § 3114, in U.S. District Court for the district in which the property is located. A declaration of taking must contain:

(1) a statement of the authority under which, and the public use for which, the land is taken;

(2) a description of the land taken that is sufficient to identify the land;

(3) a statement of the estate or interest in the land taken for public use;

(4) a plan showing the land taken; and

(5) a statement of the amount of money estimated by the acquiring authority to be just compensation for the land taken.

40 U.S.C. 3114.

After a condemnation case is filed, the parties proceed to litigate, as necessary, the issues for determination: the right to take and the amount of just compensation. They do so using the procedure set forth in Federal Rule of Civil Procedure 71.1.

Just Compensation:

Just compensation means the fair market value of the property on the date it is appropriated. Kirby Forest Industries, Inc. v. United States, 467 U.S. 1 (1984). In a condemnation case each party usually presents appraisal reports to help determine the market value.