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Rights For Which Compensation Can Be Demanded

Eminent domain is the power of a government to acquire private property for public use.  In return, just compensation is given to the land owner.  “The taking of private property for public use is deemed to be against the common right and authority so to do must be clearly expressed”[i].  In deciding just compensation, a property includes every sort of interest which an owner possesses in the property.  The takings clause, the last clause of the Fifth Amendment, limits the power of eminent domain.  The clause limits the power by requiring that just compensation be paid if private property is taken for public use[ii].  Just compensation is such which puts the injured party in as good condition as s/he would have been, if the injury had not been inflicted.  It includes the value of the land or the amount which the value of the property depreciated from partial taking.  Generally, the property owner is not entitled to compensation before the government takes possession of his land.  The constitution does not require that compensation be actually paid in advance of the occupancy of the land.  However, the owner is entitled to reasonable, certain, and adequate provision for obtaining compensation before his occupancy is disturbed[iii].

In eminent domain proceedings, property includes personal property.  Generally intangible properties, like the right to business damages do not constitute property in the constitutional sense[iv].  Easements are constitutionally recognizable property interests ie., easements are property interests subject to just compensation.[v] Additionally, patent rights are property protected by the constitutional guarantees.  When patent rights are appropriated for public use, adequate compensation must be given.  In an eminent domain proceeding, loss of visibility is compensable where the diminished visibility results from changes on the property taken from the landowner.  However, loss of visibility is not compensable where it occurs due to changes on the property of another[vi].

Generally, property already devoted to a public use cannot be taken for another public use.  The reason is that such an acquisition will totally destroy or interfere with the former use.  However, when the intention of the legislature is evidenced in express terms or by necessary implication, the government can acquire such property[vii].  Moreover, a property occupied by a railroad or other public-service corporation is private property and cannot be taken or entered upon and applied to a different public use except upon payment of compensation.

A property owner whose property abuts a lake, river, or stream possesses certain riparian rights associated with ownership of such a property.  Riparian rights are special rights pertaining to the use of water in a waterway adjoining the owner’s property.  Moreover, a riparian owner has certain riparian rights incident to the ownership of real estate bordering upon a navigable stream.  In eminent domain, a riparian right is a property right and is valuable.  A riparian right cannot be arbitrarily or capriciously destroyed or impaired, except in accordance with law.  If necessary, a riparian right can be taken for the public good upon due compensation[viii].

An abutting owner’s rights to light, air, view, ingress and egress are property rights and cannot be interfered with or appropriated without just compensation.  An owner of property abutting a public highway possesses the right to use of the highway in common with other members of the public.  S/he has a private right or easement for the purpose of ingress and egress to and from his/her property.  This right cannot be taken away or destroyed or substantially impaired without compensation[ix].  The acquisition by the public of an easement in land for the construction of a public highway gives no right and easement.  When the use is granted by proper authority and does not constitute an additional burden, an owner cannot claim compensation[x].

[i] Delaware, L. & W. R. Co. v. Morristown, 276 U.S. 182 (U.S. 1928).

[ii] USCS Const. Amend. 5.

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

[iv] Texaco, Inc. v. Department of Transp., 537 So. 2d 92 (Fla. 1989).

[v] Bormann v. Bd. of Supervisors, 584 N.W.2d 309 (Iowa 1998).

[vi] Utah DOT v. Ivers, 2005 UT App 519, P23 (Utah Ct. App. 2005).

[vii] Palm Bay v. General Development Utilities, Inc., 201 So. 2d 912, 915 (Fla. Dist. Ct. App. 4th Dist. 1967).

[viii] Thiesen v. Gulf, F. & A. R. Co., 75 Fla. 28, 77 (Fla. 1917).

[ix] Director of Highways v. Kramer, 23 Ohio App. 2d 219, 222 (Ohio Ct. App., Trumbull County 1970).

[x] Lay v. State Rural Electrification Authority, 182 S.C. 32 (S.C. 1936).

Inside Rights For Which Compensation Can Be Demanded