Remedies of Owners

Generally, the rule is that private property shall not be taken or damaged without paying just compensation to the land owner.  However, an aggrieved land owner can file an action directly against the state or the authority vested with condemnation power.  The general rule of getting consent for moving a suit against a state is not required where taking of the property has been done by a state against constitutional mandate.  A landowner is entitled to file suit for implementing his/her constitutional right to compensation against an illegal taking of the property[i].

An owner can file a suit when a regulation has gone to the extent of denying all productive and economical use of land[ii].  When a government entity having the power of condemnation damages property for a public use, the property owner may file for damages either as a statutory action or as a constitutional action for inverse condemnation[iii].  The remedy of inverse condemnation is the manner in which a landowner may recover just compensation for a taking of the owner’s property when condemnation proceedings have not been instituted[iv].  When a regulation of a government with regard to property is so onerous that it makes a property not usable for any constructive purposes, it will amount to a taking of property and the owner will be entitled to compensation[v].

If the statutory remedy is not sufficient to compensate the damage to the land owner, the land owner may move for a common law action.  A landowner has to prove that the statutory remedy is inadequate.  Only after exhausting the statutory remedy or administrative remedy can a land owner move for an action claiming inadequate compensation under common law[vi].  A statutory remedy does not prevent adopting common law remedies against a non-sovereign entity vested with condemnation power unless otherwise provided in a statute[vii].

Due process requires that there must be a hearing at some stage of the condemnation proceeding.  When a property owner is given the right to appear in defense of his/her rights in a proceeding, the state will also be given a right to be heard on its contention that there is no taking of the lands of a property owner[viii].  The doctrine of separation of powers and due process law demands that judicial review of administrative decisions be available in condemnation proceedings[ix].

A landowner may move for an injunction in an illegal taking of property.  It is a proper way to challenge the unlawful taking of property[x].  An action for ejectment is considered proper in certain cases.  A land should be taken by following proper condemnation proceedings and mandatory constitutional provisions[xi].  A land owner may recover land by moving for ejectment proceedings.  Where a partial taking of a property is made lawfully for the beneficial use of the public, an action for trespass cannot be brought by the land owner.

When an issue relating to condemnation arises, a court may grant temporary or mandatory injunction given the circumstances to maintain status quo[xii].  Even though an injunction is denied, the proceedings would continue to assess the extent of damages.  A motion for injunction may be denied if it causes hardship to the public in general and great loss to the government[xiii].

Additionally, the remedy of Mandamus is also available to a land owner against the condemnation authority in order to ascertain the damages caused to the property and the compensation entitled to the land owners[xiv].

Also, a writ of prohibition may be the proper procedure to use in challenging a proposed order of condemnation  It can also be used in cases relating to jurisdiction of a court in an eminent domain proceeding[xv].

A public entity is not liable for the negligence of an independent contractor.  However, if the contractor follows the plans and specifications supplied by the public agency and damage results to the adjacent private property, the public agency will be liable.  In such cases, it is immaterial that the construction work was done by a contractor[xvi].

A state or a department cannot be held for the wrongful or unauthorized acts of its officials.  For the state or department to be held liable, it should be proven that an official was authorized to do such an act or that act had been sanctioned by the state or concerned department[xvii].

Under certain jurisdictions, governmental immunity is available from liability for negligent torts.  In spite of this immunity, recovery may be made where a governmental project is maintained negligently so as to constitute a nuisance causing damage to private property.  Recovery of the value of property which has been taken by a governmental entity is possible even otherwise, other than through eminent domain procedures[xviii].

The Tucker Act waives certain immunities available to the government in certain law suits.  A landowner may initiate an action under the Tucker Act for compensation when the government illegally takes land not included in its document of taking or takes more land than it has paid compensation[xix].

A private property shall not be taken or damaged for public use, except on just compensation made to the owner.  This applies to a state, as well as all of its political subdivisions, including municipalities.  Whether the taking or damaging is in the exercise of governmental action is to be regarded in such cases[xx].

The doctrine of estoppel and waiver are available as defenses against a land owner.  A land owner who has accepted compensation is estopped from challenging the condemnation proceeding.  A landowner’s participation in the whole proceedings will waive any procedural defects in the condemnation proceedings.

The remedies available have to be initiated within the period of limitation provided in the statutes[xxi].  A proceeding initiated after the period of limitation is not entertained by the courts.  The limitation period varies with the nature of the motions moved.  A claim will accrue when the affected party knew or should have known of the injury which is the basis of the action[xxii]

The general rules of evidence are applicable in the condemnation or inverse condemnation proceedings.  Burden of proof is on the land owner to prove damages to his/her property.  A land owner may be awarded a sum as a cost or fee whenever a court judgment is rendered in his/her favor.

[i] McLaughlin v. Town of Front Royal, 1994 U.S. App. LEXIS 6454 (4th Cir. Va. Apr. 5, 1994).

[ii] Id.

[iii] Western Fertilizer & Cordage Co. v. City of Alliance, 244 Neb. 95 (Neb. 1993).

[iv] Iowa Coal Mining Co. v. Monroe County, 555 N.W.2d 418 (Iowa 1996).

[v] Southview Assoc., Ltd. v. Bongartz, 980 F.2d 84, 93 (2d Cir. Vt. 1992).

[vi] Molo Oil Co. v. City of Dubuque, 692 N.W.2d 686 (Iowa 2005).

[vii]. Chaffinch v. Chesapeake & Potomac Tel. Co., 227 Va. 68 (Va. 1984).

[viii] State by Peterson v. Anderson, 220 Minn. 139 (Minn. 1945).

[ix] Mathis v. Cooperative Vendors, Inc., 170 Ind. App. 659 (Ind. Ct. App. 1976).

[x] Illinois Cities Water Co. v. Mt. Vernon, 11 Ill. 2d 547 (Ill. 1957).

[xi] Duke St. Ltd. Pshp. v. Board of County Comm’rs, 112 Md. App. 37 (Md. Ct. Spec. App. 1996).

[xii] Lewis Invs., Inc. v. City of Iowa City, 703 N.W.2d 180 (Iowa 2005).

[xiii] Greenville v. State Highway Com., 196 N.C. 226 (N.C. 1928).

[xiv] Proctor v. Thieken, 2004 Ohio 7281 (Ohio Ct. App., Lawrence County Dec. 17, 2004).

[xv] Domiano v. Department of Envtl. Resources, 713 A.2d 713 (Pa. Commw. Ct. 1998).

[xvi] Los Angeles County Flood Contol Dist. v. Southern California Building & Loan Assn., 188 Cal. App. 2d 850 (Cal. App. 2d Dist. 1961).

[xvii] United States v. Archer, 241 U.S. 119 (U.S. 1916).

[xviii] Robinson v. Ashdown, 301 Ark. 226, 1990 Ark. LEXIS 41.

[xix] Houser v. United States, 12 Cl. Ct. 454 (Cl. Ct. 1987).

[xx] Thompson v. Philadelphia, 180 Miss. 190 (Miss. 1937).

[xxi] Steuben v. City of Lincoln, 249 Neb. 270 (Neb. 1996).

[xxii] Duke St. Ltd. Pshp. v. Board of County Comm’rs, 112 Md. App. 37 (Md. Ct. Spec. App. 1996).


Inside Remedies of Owners