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Method and Timing of Payment

The federal government and each state enjoy the power of eminent domain where the government acquires private property for public use.  The power of eminent domain requires due process and just compensation[i].  The owner of private property is entitled to receive the value of the property which s/he has been deprived of. To award an owner less than the value of the property taken would be unjust to him/her.  And to award him/her more than property’s value will be unjust to the public[ii].

The U.S. exercising power of eminent can acquire property in two ways:

  • Government can enter into physical possession of property without authority of a court order; or
  • Government can institute condemnation proceedings.

In physical seizure, the property owner is provided a remedy under the Tucker Act [iii]to recover just compensation.  In condemnation proceedings, compensation is given through court[iv].  When a government opts for the physical seizure method, acquisition occurs at the moment of seizure, even though title does not pass until compensation is actually paid[v].  From the beginning of acquisition proceedings, the government’s possession is lawful and an owner’s title represents only his/her claim for compensation.

In an eminent domain proceeding, an interlocutory judgment fixing the compensation payable to a condemnee can be awarded.  Such an order has the characteristics of a money judgment in an ordinary civil action.  Additionally, the order bears interest from date of entry[vi].  Due process does not require condemnation of land in advance of its occupation by the condemning authority.  Moreover, in a condemnation proceedings, an owner must be given opportunity to be heard and to offer evidence as to the value of the land taken[vii].

The Taking Act[viii] requires the U S to deposit with the court just compensation for the land taken.  However, the estimated compensation is not evidence of the value of the property taken[ix].  Moreover, the estimate deposited by the government does not establish a minimum award to which the landowner is entitled[x].

Substituted condemnation occurs when property is condemned for exchange with another public utility and the property is used for a public purpose.  This is considered a valid exercise of the condemnor’s power of eminent domain[xi].  Moreover, substituted compensation can be used to minimize damages to be paid to condemnees[xii].

A plaintiff can abandon eminent domain proceedings at any time after filing the complaint[xiii].  An appropriating agency can obtain the right to take and use the property during condemnation proceedings upon payment of the amount of the award assessed and upon making sufficient security.  The quick take provision enables a condemnor to take possession of property before there has been a full condemnation proceeding ending in judgment.  By opting for a quick take possession, the U. S. government can obtain title by filing a declaration of taking and paying the estimated compensation for the property to the court for the use of the property owner[xiv].

[i] USCS Const. Amend. 5.

[ii] United States v. Certain Lands in Highlands, 82 F. Supp. 363, 365 (D.N.Y. 1942).

[iii] 28 USCS § 1346.

[iv] Stringer v. United States, 471 F.2d 381, 384 (5th Cir. Miss. 1973).

[v] Albert Hanson Lumber Co. v. United States, 261 U.S. 581 (U.S. 1923).

[vi] Bellflower City School Dist. v. Skaggs, 52 Cal. 2d 278 (Cal. 1959).

[vii] Barker v. Lannert, 310 Ky. 843, 850 (Ky. 1949).

[viii] 40 U.S.C. § 258a.

[ix] Evans v. United States , 326 F.2d 827, 830 (8th Cir. 1964).

[x] United States v. 75.13 Acres of Land, 693 F.2d 813, 817 (8th Cir. Iowa 1982); 40 USCS § 258a.

[xi] Atlanta v. Atlanta Gas Light Co., 144 Ga. App. 157, 159 (Ga. Ct. App. 1977).

[xii] Department of Transp. v. Livaditis, 129 Ga. App. 358, 364 (Ga. Ct. App. 1973).

[xiii] Southern Public Utility Dist. v. Silva, 47 Cal. 2d 163 (Cal. 1956).

[xiv] 40 USCS § 3114.

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