What Type of “Public Use” Can Justify Taking Real Estate in an Eminent Domain Case?

A core principle of eminent domain law is that when a condemning authority seeks to take real estate, the taking must be for a “public use.” A condemning authority cannot, for instance, seek to take real estate from one person just to give it to another person for individual use. The taking, and the project that will be completed on the real estate to be acquired, must benefit the public.

 But, the “public” that will use the project – be it a road improvement, railroad or utility line – does not have to include every single person in the area. The “public” part of “public use” means that the completed project will be open and available to the public for use. For example, a local government entity may want to complete a project to improve a bridge on a rural county road to make it safer and more structurally sound, but, in doing so, it is not expected that the bridge does not have be used by every person in the county.

The “use” of the real estate to be taken has been debated in eminent domain cases throughout the years. Many may recall the landmark U.S. Supreme Court case Kelo v. City of New London, in which the U.S. Supreme Court affirmed a broad view of what “public use” means, including taking private real estate to turn it over to private individuals for economic development.

Indiana law specifically excludes that broad view from the definition of “public use.” Whether a proposed project will be used by the public can still be challenged. In short, “public use” is determined by whether the use of the proposed taking is for a public, as opposed to private, use, such as a public road or utility line. The condemning authority has the burden of pleading the proposed use, which must be public, in the eminent domain complaint that starts the case.


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