The government exercises its power of eminent domain and the Declaration of Taking Act prescribes the procedures by which the government may take possession of land that is being condemned. The default rule in eminent domain is that a taking in fee simple establishes a new title and extinguishes all existing possessory and ownership interests not specifically exempted[i]. Thus, where the government takes fee simple title, it takes all interests, specified as well as unspecified and if the government intends to take less than fee simple title, the excluded interests shall be specifically mentioned. The condemnor acquiring a fee simple estate is presumed to acquire all appurtenances and a fee simple acquisition generally destroys easements burdening the land.
Generally, the condemnor must make full compensation of the rights taken. Courts have held that the appropriate rule for measuring damages in a condemnation proceeding is “to determine the value of the whole land without the public use at the time of condemnation, then find the value of the portion remaining after the public use, and the difference between the two estimates will be the true compensation to which the party owning the land is entitled[ii].”
Eminent domain statutes are strictly construed and the nature or extent of a title or rights taken in the exercise of eminent domain depends on the statute conferring that power[iii]. Courts generally construe an eminent domain statute in such a manner as to leave the owner with the greatest possible estate.
The government’s rights as the condemnor are distinct from those of an ordinary purchaser of property. Condemnation proceedings are more like a judicial process for securing better title against the entire world than may be obtained by voluntary conveyance[iv]. However, courts have construed condemnation as an enforced sale and the state stands toward the owner as a buyer toward a seller[v].
When the government acquires fee simple interests in land by condemnation, the government simultaneously extinguishes the servitudes burdening the property because continuance of the burdens of a servitude would interfere with the purposes for which the property is acquired. However, some courts are of the view that when a condemnor acquires land that is subject to an enforceable covenant, such acquisition extinguishes all existing possessory and ownership interests not specifically exempted and the condemning authority acquires the land free from the burden of the covenant[vi].
The right to enter upon the servient tenement for the purpose of repairing or renewing an artificial structure, constituting an easement, is called a “secondary easement.” A secondary easement is a mere incident of the easement that passes by express/ implied grant or is acquired by prescription and the owner of the dominant estate may enter on the servient tenement, and thereby do any act necessary for the proper use of the easement. However, a secondary easement can be used sparingly and should not be used in any manner as to impose a burden upon the servient tenement[vii]. Thus the government, as the condemnor, will have a right to ingress and egress as well as an “evacuation estate,” which enables the condemnor to require the occupants to periodically vacate the land.
When the acquisition of the property is less than fee simple, the right to minerals beneath the land will not generally pass to the condemnor and the owner retains the right to remove the minerals from the land. This rule applies to land acquired by the government for the purpose of building highway, turnpike, bridge, and street purposes, to land taken for ditches, canals, sewers, pipelines, and reservoirs, and to land condemned for school purposes. On the contrary, if the condemnor acquired the estate in fee simple, such condemnation shall be deemed to have been for the “whole of the property”, including the right to take mineral and even natural gas[viii].
The law is the same for appurtenant water rights in the matter of a fee simple transfer. However, there is contrary authority showing that water rights may not automatically pass to a condemnor, since a condemnation is not a conveyance in ordinary parlance[ix]. Moreover, in cases where there is affirmative evidence to the effect that the condemnor did not seek or acquire the riparian rights, the riparian rights remain with the owner.
The principle of eminent domain pertains to real property and does not affect the ownership of personal property “on, but not affixed to, the property taken.” For instance, in some states, mobile homes are considered personal property. When such a property is condemned, mobile homes on the land that are owned by the lessees of the mobile home park are not transferred in the condemnation action[x]. Unless the value of personal property is considered during the condemnation proceedings, such personal property on the condemned property shall be considered as owned by the owner rather than the condemnor.
[i] United States v. 194.08 Acres of Land, 135 F.3d 1025, 1029 (5th Cir. La. 1998).
[ii] Board of Directors v. Morledge, 231 Ark. 815, 826 (Ark. 1960).
[iii] Feiler v. Wanner, 340 N.W.2d 168, 171 (N.D. 1983).
[iv] United States v. Carmack, 329 U.S. 230 (U.S. 1946).
[v] Law Offices of Vincent Vitale, P.C. v. Tabbytite, 942 P.2d 1141, 1145 (Alaska 1997).
[vi] Newberry v. Andalusia, 257 Ala. 49 (Ala. 1952), Dothan Area Chamber of Commerce, Inc. v. Shealy, 561 So. 2d 515 (Ala. 1990).
[vii] SMB Inv. v. Iowa-Illinois Gas & Electric Co., 329 N.W.2d 635 (Iowa 1983).
[viii] Signaigo v. N & W Ry. Co., 171 W. Va. 547 (W. Va. 1982).
[ix] Toltec Watershed Improvement Dist. v. Associated Enters., 829 P.2d 819 (Wyo. 1992).
[x] United States v. 19.7 Acres of Land, 103 Wn.2d 296 (Wash. 1984).