Condemnation Proceedings


Condemnation proceedings are initiated by a state to commit private property to public use.  States, state agencies, and private persons who are authorized to exercise functions of a public character can take private owner’s property for public purposes.  However, a property owner must be adequately compensated[i].

Under the common law, condemnation proceedings are not considered an ordinary jury trial, as they lack the characteristics of an ordinary trial[ii].  The condemnation proceedings must comply strictly with the condemnation statutes.  Condemnation proceedings are considered special statutory proceedings[iii].  In condemnation proceedings, the statute is strictly construed against the state and it is liberally construed in favor of the property owner[iv].

The main aim of a condemnation proceeding is to protect the right of a landowner through compensation.  Condemnation proceedings are considered adversary proceedings.  Some courts have expressed the view that condemnation proceedings are not an adversary proceeding since the mere act of filing the action is enough to confer title and possession to the state.  Once the state starts the proceedings, it is the property owner’s duty to prove that s/he had a right to compensation[v].

Further, a condemnation proceeding is a proceeding in rem.  It is a proceeding against all those persons having an interest in the property and all such persons can appear and defend in the proceeding[vi].

Generally, condemnation proceedings must be conducted as quickly as possible.  Further condemnation proceedings are administrative in nature when the compensation is decided by an administrative body[vii]. The compensation decided by the administrative body is subject to judicial review[viii].

As condemnation proceedings are subject to strict compliance to statutory and constitutional provisions, condemnation proceedings vary according to the individual state’s law[ix].  Ensuring that a comprehensive and exclusive procedure is adopted for taking the property and for deciding about the compensation is the reasoning behind subjecting condemnation proceedings to the strict control of statutes[x].  The state can exercise its power of acquiring property only in the manner prescribed in the statute[xi]. Similarly the procedure adopted for acquisition should be one that is prescribed under the statute.  Thus the rule of strict compliance under condemnation proceedings prevents the unlawful invasion of constitutional rights and it also ensures the property owner due process[xii].

Generally, the procedure of condemnation includes two stages:

  • procedure relating to acquisition of property; and
  • procedure relating to fixation of compensation for property owner.

Sometimes the state adopts special procedures in condemnation proceedings.  The categorization of cases that fall under a special category are two: They are:

  • Depending upon the purpose for which land is acquired.  For example, taking property for highway, park, drain, canal and waterway and
  • Depending upon the character of the condemnor who is taking the property.  For example, if the condemnor is taking possession under the quick taking procedure.

In a quick taking procedure, the state takes possession and use of the property immediately.  Here the property owner will receive cash compensation prior to the condemnation proceeding.  However, even after commencement of condemnation proceeding, the property owner can use his/her property.  But the owner should not use a property in a manner that will reduce its value and change its original condition.

A condemnation proceeding must be supported by a resolution of necessity.  A resolution of necessity must satisfy three requirements[xiii]:

  • it must contain all information relating to the acquisition, including purpose of acquisition and property description;
  • it must be adopted only after a hearing to which property owner was given notice, thus giving the property owner a reasonable opportunity of being heard.
  • it must be adopted by a two-thirds vote of all the members of the condemning entity’s governing body.

Under condemnation proceedings, the property owner has a right to due process.  The rights available to a property owner under condemnation proceedings are:

  • right to receive timely notice about condemnation proceedings;
  • right to a reasonable opportunity to be heard;
  • right to produce evidence and to confront or cross-examine witnesses; and
  • right to appeal.

However, there can be condemnation proceedings without court interference if there is a contract between the property owner and the state regarding property acquisition for public purpose.

[i] Wheat Ridge Urban Renewal Auth. v. Cornerstone Group XXII, L.L.C., 176 P.3d 737 (Colo. 2007).

[ii] Bryan v. State Rds. Comm’n, 115 Md. App. 707 (Md. Ct. Spec. App. 1997).

[iii] Johnson C. S. R. Co. v. South & W. R. Co., 148 N.C. 59 (N.C. 1908).

[iv] Burlington Northern & Santa Fe Ry. v. Chaulk, 262 Neb. 235 (Neb. 2001).

[v] San Bernardino Valley Municipal Water Dist. v. Gage Canal Co., 226 Cal. App. 2d 206 (Cal. App. 4th Dist. 1964).

[vi] Harrington v. Superior Court of County of Placer, 194 Cal. 185 (Cal. 1924).

[vii] Gulf Power Co. v. United States, 187 F.3d 1324 (11th Cir. Fla. 1999).

[viii] Buford v. Tennessee Dep’t of Correction, 1999 Tenn. App. LEXIS 755 (Tenn. Ct. App. Nov. 10, 1999).

[ix] Mt. San Jacinto Community College Dist. v. Superior Court, 117 Cal. App. 4th 98 (Cal. App. 4th Dist. 2004).

[x] City of Keene v. Armento, 139 N.H. 228 (N.H. 1994).

[xi] Landau Inv. Co. v. City of Overland Park, 261 Kan. 394 (Kan. 1997).

[xii] Nat’l Compressed Steel Corp. v. Unified Gov’t of Wyandotte County/Kansas City, 272 Kan. 1239 (Kan. 2002).

[xiii] San Bernardino County Flood Control Dist. v. Grabowski, 205 Cal. App. 3d 885 (Cal. App. 4th Dist. 1988).