Mini tutorial - Eminent Domain Part 1

January 29, 2009 - 10:32am -- Anonymous

I started writing a blog about a recent presentation I attended on the legal issues of using eminent domain for energy corridors. While writing I realized an overview of what eminent domain is may be helpful. The original post was too long to include it all, so here is the brief tutorial:

There are many different rights that a property owner has with regard to their property. This can be thought of as a bundle of sticks with each stick representing a separate right or interest in the land and the entire bundle as full and complete ownership of all the rights of that property. A landowner can give the sticks to someone else all at one (which is what happens, generally, when you purchase a piece of land) or one stick at a time (usually by granting a lease or easement).

For example, Andy owns some farmland. He decides to move to Minneapolis, but doesn't want to sell his land. Andy leases his land to Bob who wants to use it to farm soybeans. Andy has given Bob a stick representing the use and possession of the land. At the end of the lease, Bob will give that stick back to Andy. There are sticks that represent interests in the minerals underground, the water on the property, the air above the property, the trees growing on the property, etc.

But wait! If the landowner has the whole bundle and can decide when and to whom they want to give out their sticks, doesn't the government have to wait in line just like everyone else and hope they're chosen to receive a stick? Not quite.

The government is charged with promoting and maintaining the public good. In doing this, the government has the right to take privately owned land if it is needed for the public good. According to the constitution, the government must provide "just compensation" if they do this. Unless the proposed public use of that land is questionable, landowners can only challenge the amount of compensation that is offered.

In general, the government exercises their right of eminent domain for uses such as highways, railroads and public utilities. In most cases that involve public utilities and/or power lines, the government will take a stick in the form of an easement from the bundle. That easement may allow the construction of overhead power lines or underground pipes.

An easement is a right to use the land that belongs to someone else. Usually easements "run with the land" and are created to benefit another parcel of land. For example, Andy's farmland is between Carl's land and the closest road. Andy gives Carl a stick representing an easement to travel along the footpath that goes across his land from the road to Carl's house. However, if Carl decides to move to Minneapolis and Danielle buys Carl's land, Danielle now has that stick.

With any easement or lease the underlying title of ownership of the land remains with the landowner.

Still with me? Good. What does all this have to do with wind power? That is an excellent question. Wind energy is generated in mostly rural areas because that is where the best wind resource is. Most electricity is consumed in urban or highly populated areas because that's where the most demand is. The issue of eminent domain arises when a link is needed between the two in the form of transmission lines.

Now, onto the next post!