Eminent Domain

What is Eminent Domain or Condemnation?

Eminent domain or condemnation is a process where the government, such as the United States, state, counties, cities and towns, can acquire private property for public purposes.  Public purposes include highways and streets, bridges, airports, universities, schools, parks and trails.  Aside from the government, other entities also have the right to use the power of eminent domain or condemnation. Entities that have the right to use the power of eminent domain are known as “condemning authorities” or “acquiring agencies or companies.”  Acquiring authorities other than the government can obtain private property for utilities and railroads.  Eminent domain or condemnation is important to our society because, without it, one single landowner could stop an entire public project and that public project could not be built.  Thus, eminent domain allows for the construction of highways, streets, airports, schools, parks and utility lines.

The power of eminent domain or condemnation is found in the United States and Indiana Constitutions.  While the government and other entities have the right to use the power eminent domain or condemnation, that right is not without its limits.  For instance, the government or other condemning authority cannot use that power without following certain specific procedures, and the United States and Indiana Constitutions guarantee that a landowner whose private property is being acquired for a public purpose must be paid “just compensation” for his property. If acquiring entity takes a landowner’s property without following the procedures provided by law, a landowner can file an action in court against the acquiring entity, which is known as an inverse condemnation case.

Generally, the government or other acquiring authority must attempt to purchase a landowner’s property before a lawsuit can be filed.  It is typical for the acquiring entity to have an appraisal or appraisals of the landowner’s property by a qualified appraiser or appraisers and make an offer to the landowner based upon the appraisal or appraisals. The preparation for making the offer and steps that are taken to acquire a landowner’s property for a public project are known as the “land acquisition process.”  However, the landowner cannot be forced to accept the amount that the acquiring entity offers to pay for his or her property.

If the condemning authority and landowner cannot come to agreement about the amount of just compensation to be paid, then a lawsuit may be filed.  This lawsuit is known as an eminent domain or condemnation case.  Sometimes an eminent domain or condemnation case is filed in state court, and sometimes it is filed in federal court.  The court where an eminent domain or condemnation lawsuit is filed depends upon the acquiring entity and whether its right to use the power of eminent domain has been created by state or federal law.  An eminent domain or condemnation case involves two stages.  During the first stage, the acquiring entity’s right to take a landowner’s property is decided, and if the court determines that the acquiring entity has the right to take his or her property, it appoints appraisers to decide just compensation for the property being acquired.  The eminent domain case may ultimately proceed to the second stage, which is called the “damages stage.”  During the “damages stage,” the amount of just compensation that the condemning authority will pay is decided.  Many times, the landowner and acquiring entity come to an agreement about the amount of just compensation before trial.  However, if they cannot agree prior to trial, then a trial is held, and the court or a jury decides the amount of just compensation.

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