Eminent Domain – for an Easement?Posted by ppm on August 7, 2019 at 3:13 pm
Can Eminent Domain be used to take an easement for the public? (For example a street widening.)
I always assumed ED was for a fee taking of private property.
- 7 Replies
- MemberAugust 7, 2019 at 3:23 pm
Researching recently for a project I am working on I came across several instances of condemnation which had fee, permanent easements, temporary construction easements and temporary construction permits all in the one document. All were listed in the “legalese” part of the document as well as drawings and metes and bounds of each different entity. This previous project was in the early 70’s, so things may have changed since then.
- MemberAugust 7, 2019 at 3:25 pm
In California, Yes.
- MemberAugust 7, 2019 at 4:02 pm
Eminent domain is governed by your state statutes. Typically, permanent occupancy such as a building, reservoir, etc. will be taken in fee title. Rights of way, utility installations, etc. are easements. The public can take no more than they require.
- MemberAugust 7, 2019 at 5:01 pm
100 percent yes!
- MemberAugust 7, 2019 at 5:02 pm
In Oklahoma ED is generally used for fee acquisition but can be used for easement. The trouble is if you’re going to go for the throat with eminent domain, go ahead and take the property in fee if it’s feasible. The costs and trouble are about the same.
A far cheaper route is to bring suit for “easement by necessity”. This is cheaper and usually stays in lower district courts, however they are generally (unsuccessfully) appealed. Municipalities and public utility companies love this route. No one wants to own R/W in fee except for the State. The mowing costs get out-of-hand. I would think eminent domain would only be used only as a last resort for an easement to the public for a road widening, at least a non-highway route anyway.
- MemberAugust 7, 2019 at 5:10 pm
But, in North Carolina, it’s subject to fair compensation. We had a nasty one in Greensboro involving a city-private collaboration on a hotel-parking lot combo and a night club who owned a critical easement, and a lawyer with a conflict of interest. The night club owner wanted to keep the easement, but he got a fair settlement to end his lawsuit.
- MemberAugust 7, 2019 at 7:43 pm
In Georgia ABSOLUTELY yes. I have testified in dozens of Special Master hearings for the condemnation of easements (and rights of way). As long as the condemnor can prove the need and that it is for public use the answer has always been yes. Then they get to figure out the value of the taking.
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