The document provides an overview of the eminent domain process under Utah law. It discusses: 1) The history of eminent domain law dating back to the Magna Carta and how it is established in the US Constitution and Utah Constitution to allow the taking of private property for public use with just compensation. 2) The requirements for "public use" and "necessity" to legally take property through eminent domain. 3) The pre-litigation steps that must be taken, including reasonable negotiations with property owners and disclosure of their rights. 4) The process for filing an eminent domain lawsuit, obtaining immediate occupancy of the property, determining just compensation at trial, and entering a final judgment.

1. THE EMINENT DOMAIN PROCESS
Presentation to the International Right of Way Association (IRWA)
Salt Lake City, Utah
J.D. Kesler, Attorney
parsonsbehle.com

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Eminent Domain, Taking(s), and Condemnation are all used
interchangeably in this presentation and around the country.
Eminent Domain Process

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WHAT, WHO, AND WHY?
Eminent Domain

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 “Eminent Domain” is the power to take private property for
“public use” without the owner’s consent.
 The term “eminent domain” is believed to have been first
used by Hugo Grotius, the seventeenth century legal scholar.
 Although not specifically called “eminent domain” the power
has existed for centuries.
 Eminent Domain is basically an overarching policy decision to
allow for building or maintaining communities.
History and Policy:

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The Magna Carta in 1215 restricted King John's use of eminent
domain by requiring King John to pay “immediate” payment
for the property taken by the King.
Magna Carta:

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Framers included protections in Fifth Amendment stating that
“private property shall not be taken for public use, without just
compensation.”
United States Constitution

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 Utah Constitution states that “Private property shall not be taken or
damaged for public use without just compensation.” Article I, Section
22.
 “Or damaged” clause comes from the 1870 Illinois Constitution.
– Despite Utah’s “or damaged” clause, the Utah Supreme Court held in 1909 that “in
order to bring [a] case within the damage clause of the Constitution, there must be
some physical interference with the property itself or with some easement which
constitutes an appurtenance thereto.” Twenty-Second Corp. of the Church of Jesus Christ of Latter-Day
Saints v. Oregon Short Line R. Co., 103 P. 243, 246 (1909)
Utah State Constitution

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 Uses authorized by federal government
 Public buildings and grounds for state and local governments and schools
 Reservoirs, canals, aqueducts, flumes, ditches
 Gas, oil or coal pipelines
 Storage facilities for natural gas
 Telecommunications, electric light and electric power lines and power plants
 Sewage service
 Cemeteries
 Sites for mills and smelters including right to take lands for discharge or smoke and fumes in
counties where population is less than 20,000
Public Uses

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 Postal Tel. Cable Co. of Utah v. Oregon S.L.R. Co., 65 P. 735 (Utah 1901) (private telegraph corporation had power
to condemn telegraph line)
 Porcupine Reservoir Co. v. Lloyd W. Keller Corp., 392 P.2d 620 (Utah 1964) (private corporation had authority to
condemn lands for reservoir)
 Watkins v. Somonds, 354 P.2d 852 (Utah 1960) (private individual had authority to condemn an irrigation easement)
 Jacobsen v. Memmott, 354 P.2d 569 (Utah 1960) (private individual had authority to condemn roadways to mining
deposits)
 Clark v. Nash, 198 U.S. 361 (1905) (SCOTUS upheld an individuals right to condemn irrigation easement because
of the indirect benefit to the public deriving from allowing irrigation of otherwise useless land)
 Marion Energy, Inc.; State of Utah, School and Institutional Trust Lands Admin. V. KFJ Ranch Partnership, 2011
UT 50 (condemnation authority not in question, but use for which it was used rejected)
Who can take property?

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Public Use?
Economic Development

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 Must be “necessary” for the public use.
 Necessity requires that there be:
a. Approved, defined plans for acquisition and use of the property;
b. Authorization, usually in the form of a resolution;
c. A time frame for use in the reasonably near future;
d. Appropriated money to acquire and use the property;
e. Cannot be for speculation; and
f. Cannot devalue property or cloud marketability.
Public Use: Necessity

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Utah Supreme Court in Williams v. Hyrum Gibbons & Sons
Co., 602 P.2d 684, 689 (Utah 1979) held that:
“[n]ecessity does not signify impossibility of constructing the
improvement for which the power has been granted without
taking the land in question; it merely requires the land be
reasonably suitable and useful for the improvement.”
Necessity is treated with deference

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 Property that is already put to public use may be condemned
if the use for which the land is taken is a “more necessary”
public use, or if the new use is “compatible” with the old
public use.
 Think schools, parks, etc.
Competing Public Uses

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Pre-litigation considerations
Eminent Domain

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 Under 78B-6-504, before property may be taken “it must appear” that:
– the use is authorized by law;
– the taking is necessary for the use;
– the project will “commence within a reasonable time” of the taking;
– if already a public use the new public use will be “more necessary”
 Additionally, for counties, cities, towns, or political subdivisions of the state, prior to filing an action,
there must be:
– approval by the governing body by a vote which is preceded by written notice to the owners of the
property and a public meeting.
– the property owner must be given the opportunity to be heard.
 Under federal law, the Natural Gas Act for example, Eminent Domain is approved when FERC grants a
certificate of public convenience and necessity.
Conditions Precedent to taking

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Utah Code Annotated Section 78B-6-505 sets forth the steps to
be taken prior to filing an eminent domain action.
 First: must make a reasonable effort to negotiate with the property owner
 Second: In the early phase of negotiation, but no later than 30 days before filing an eminent
domain action, the seeker must provide the property owner with materials on the Office of the
Property Rights Ombudsman website in accordance with Section 13-43-203 regarding acquisition
of property for a public purpose and a property owner’s right to just compensation.
(http://propertyrights.utah.gov)
Negotiation and Disclosure

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 Third: The condemnor is required to provide the property owner with a
letter including language provided by statute. Think property owner
“miranda” warning.
1. You are entitled to receive just compensation for your property.
2. You are entitled to an opportunity to negotiate with [name of political subdivision]
over the amount of just compensation before any legal action will be filed.
a. You are entitled to an explanation of how the compensation offered for your property
was calculated.
b. If an appraiser is asked to value your property, you are entitled to the appraiser during
an inspection of the property.
Negotiation and Disclosure continued

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3. You are entitled to discuss this case with the attorneys at the Office of the Property
Rights Ombudsman. The office may be reached at [provide the current contact
information for the Office of the Property Rights Ombudsman].
4. The Office of the Property Rights Ombudsman is a neutral state office staffed by
attorneys experienced in eminent domain. Their purpose is to assist citizens in
understanding and protecting their property rights. You are entitled to ask
questions and request an explanation of your legal options.
5. If you have a dispute with [name of political subdivision] over the amount of just
compensation due to you, you are entitled to request free mediation or arbitration
of the dispute from the Office of the Property Rights Ombudsman. As part of
mediation or arbitration, you are entitled to request a free independent valuation
of the property.
6. Oral representations or promises made during the negotiation process are not
binding upon the entity seeking to acquire the property by eminent domain.
Negotiation and Disclosure continued

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78B-6-506. Right of entry for survey and location.
(1) If land is required for public use, the person or the person's agent in charge of the use
may survey and locate the property. It must be located in the manner which will be most
compatible with the greatest public good and the least private injury, and subject to the
provisions of this chapter.
(2) (a) The person or the person's agent in charge of the public use may, at
reasonable times and upon reasonable notice, enter upon the land and make examinations,
surveys, and maps of the land.
(b) Entry upon land as authorized under Subsection (2)(a) does not constitute a
cause of action in favor of the owners of the lands, except for actual damage to the land and
improvements on the land caused by the entry and which is not repaired on or before the date
the examinations and surveys are completed.
Right of Entry

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Initiating the case and starting the project
Eminent Domain

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In Utah, under 78B-6-507:
 The Plaintiff is the entity or person in charge of the public use.
 Defendants are the owners and people claiming an interest in the land
sought.
 If you are seeking a right-of-way, you must include a map of the proposed
route.
 A description of the land sought must be included in the complaint.
 The Plaintiff may choose to include all parcels in the county in the same
action.
Condemnation Complaint

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At any time after filing a Complaint in eminent domain, the
condemnor may file a motion with the court to immediately
occupy the property and do whatever work is necessary for the
project.
 Property owner loses no rights by losing occupancy, and waives no
defenses
 Condemnor assumes the risk that the court may ultimately find against it
Immediate Occupancy

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 An order of occupancy must require the condemnor to
deposit the appraised value of the property into court.
 Deposit earns interest
 If the property owner withdraws the funds all defenses
except greater compensation are abandoned.
Immediate Occupancy Continued

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Trial, Compensation, and Judgment
Eminent Domain Process

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 Just compensation is constitutionally required.
 “Just compensation means that the owners must be put in as
good a position money wise as they would have occupied had
their property not been taken.” City of Hildale v. Cooke, 2001 UT
56, ¶ 19.
 “The accepted formula for determining fair market value is … what
would a purchaser willing to buy but not required to do so, pay
and what would a seller willing to sell but not required to do so,
ask.” Id.
Compensation

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 A “taking” “is any substantial interference with private property which
destroys or materially lessens its value, or by which the owner’s right to its
use and enjoyment is in any substantial degree abridged or destroyed.”
Strawberry Elec. Service Dist. v. Spanish Fork City, 918 P.2d 870, 877 (Utah
1996). A later case called this definition “practically unlimited.”
 However, although the definition is potentially broad, courts have limited
protectable interests in practical ways.
What is a compensable property right?

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A property owner must have something more “than a unilateral expectation of continued privileges.”
Strawberry Elec. Service Dist. v. Spanish Fork City, 918 P.2d 870, 878 (Utah 1996).
Instead, “a [property owner] must show a “‘legitimate claim of entitlement to it,’” Patterson v. Am. Fork City,
2003 UT 7, ¶ 23, 67 P.3d 466 (quoting Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972)),
or in other words, a “vested, legally enforceable interest,” Bagford v. Ephraim City, 904 P.2d 1095, 1099
(Utah 1995). Such a “vested property interest,” moreover, must be evidenced by “a completed,
consummated right for present or future enjoyment.” Smith v. Price Dev. Co., 2005 UT 87, ¶ 26, 125 P.3d
945 (internal quotation marks omitted). Federal law is to the same effect. See Webb’s Fabulous
Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 161 (1980) (stating that “a mere unilateral expectation or an
abstract need is not a property interest entitled to protection” under the Fifth Amendment’s prohibition
against the taking of private property for public use without just compensation).” L.C. Canyon Partners,
L.L.C. v. Salt Lake County, 2011 UT 63, ¶ 28.
Property Rights Must Be Vested

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 All of the above issues provide ways to try to dismiss a case, or obtain
summary judgment.
 At trial, witnesses for property owners will include appraisers and likely the
property owners. Others may be called as needed.
 Witnesses for condemnor will include appraisers, and representatives of the
company. Others may be called as needed.
Trial

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 After an award in a condemnation action, payment may be made directly to
property owner, or money may be deposited into court and then distributed.
 If the money is not paid, a landowner can execute as in civil cases.
 If the money cannot be collected, then the court may “annul the entire
proceedings, and restore possession of the property to the defendants.”
Utah Code Ann. § 78B-6-515.
 After payment is made, the court “shall make a final judgment of
condemnation” and a “copy of the judgment shall be filed in the office of the
county recorder and the property described in it shall vest in the plaintiff for
the purpose specified.” Id. § 78B-6-516.
Final Judgment

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Questions?