The Common Law

This month's column wraps up the topic of eminent domain by answering several commonly-asked questions.

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A private, for-profit pipeline company sent me notice that it plans to take a portion of my property for a pipeline easement. Can I prevent the pipeline company from taking my property?

Sometimes. Texas landowners may convince the court that the pipeline company lacks condemnation power (i.e.: it's not a common carrier), that the taking is not for a "public use," or that the company has failed to comply with statutory and other legal requirements in attempting to take the property. It is important to consult with an attorney about the potential methods for challenging the pipeline company's taking. But the main issue in most condemnation cases – whether the condemnor has provided "adequate compensation" for the taking – is not itself a valid basis to prevent a taking.

Does the government sometimes make lowball offers to take property?

Yes. But landowners have the right to reject and contest low offers. The U.S. Constitution protects a property owner's right to "just compensation" for condemned property; the Texas Constitution offers "adequate compensation." Adequate compensation is generally considered to be fair market value, which is the price a willing buyer would pay to a willing seller. Determining the correct amount of just compensation is often hotly contested and can be a slippery task (as evidenced by the wealth of Texas cases on the topic).

The power line company made a low offer to condemn a portion of my property. The offer represents only a small fraction of the damages caused to my property by the power line because it doesn't include any money for the damage caused to my remaining land outside the easement. Should I be paid for remainder damages?

Yes. Most disputed condemnation cases boil down to one main issue – money. Fair compensation is determined in part by the type of "taking" that occurs. If an entire property is condemned, the landowner is entitled to receive the fair market value for the entire property. But if only a portion of the property is condemned, Texas law allows the landowner to be compensated for the portion of the property actually taken and the damage to the landowner's remaining property, assuming relevant evidence supports remainder damages.