Often, landowners are not happy to hear that a portion of their property will be taken by the government, regardless of the fact that they will receive compensation for such land. It is important for all landowners to understand the laws and rules surrounding eminent domain in the event they are faced with this type of situation.
Eminent domain refers to the right of a government or its agent to appropriate private property for public use upon the payment of just compensation.
Historically, this power has most frequently been used to obtain land for public facilities (i.e., hospitals or schools), highways and railroads. This right is rooted in the U.S. Constitution. The Fifth Amendment provides that no private property shall be taken for public use without just compensation.
Importantly, private property may be “taken” in a variety of ways. The most obvious way is where the property is literally physically occupied by another. For example, if a pipeline company takes an easement and places a pipeline on that area, that constitutes a “physical taking.”
Regulations, in some instances, may also constitute a taking if such regulations significantly limit the use of the property in a manner destroying one of the central attributes of ownership or denies all reasonable economic use of the property. These situations are often referred to as a “regulatory taking.”
In order for eminent domain to be used, three factors must be met: The entity taking the property must have eminent domain power, the property must be taken for a public use, and just compensation must be paid.
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Eminent domain power. There is no question that the federal government and each of the 50 states hold eminent domain power. Additionally, a private party may be granted eminent domain power in certain circumstances.
For example, frequently a private pipeline company may obtain eminent domain power by state statute in order to build pipelines.
- Public use. Property may be taken only if it will be put to public use, a broadly defined requirement. Property taken for schools, parks, railroads, highways and certain pipelines generally fall within the public use category.
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Just compensation. Courts determine just compensation by looking at the market value of the property at the time of the taking.
Importantly, at least in some states, courts recognize that compensation must be made not only for the portion of the land condemned but also for any loss of value to the landowner’s remaining property due to the taking.
For example, where a company obtains an easement to lay a 50-foot-wide pipeline across a landowner’s 5-acre property, the landowner may be able to recover the market value of the 50-foot easement as well as any damages to the value of the remaining 5 acres caused by there being an easement on the land.
Each state has its own case law and regulations that define the eminent domain process and procedure. Generally, however, the entity proposing the taking will contact the landowner and seek to reach an agreement short of initiating actual court proceedings to take the property.
Landowners facing a potential taking of property should ensure they understand the rules and law in their specific state and should seek legal aid to best protect their interests. 
Tiffany Dowell
Assistant Professor and Extension Specialist
Texas A&M Agrilife Extension Service
