Right to Compensation in Eminent Domain for Abrogation of Restrictive Covenants

This report deals with legal questions surrounding restrictive covenants in eminent domain. Specifically, it addresses the question whether recovery can be held against the state for violations against covenants that restrict land use to residential purposes in the exercise of eminent domain. Several court cases, most of them at the state level, are cited. The decisions are inconsistent. The majority rule points to the fact that the conveyance of a negative easement is within the Statute of Frauds; it notes that the doctrine is universally accepted that as between private persons the right to enforce a restrictive covenant is a valid right and is enforceable in equity; it posits that the state in the exercise of the sovereign power of eminent domain should not be placed in a different position than private persons. The minority rule posits that such a restrictive covenant is a contractual right, and contractual interests are not binding on the state. It is concluded that due to the contradictory opinions of the various courts, the state should avoid taking such lands except where there appears to be no "feasible and prudent alternative" thereto.

• Record URL:
  • http://onlinepubs.trb.org/onlinepubs/nchrp/nchrp_rrd_113.pdf
• Supplemental Notes:
  • Distribution, posting, or copying of this PDF is strictly prohibited without written permission of the Transportation Research Board of the National Academy of Sciences. Unless otherwise indicated, all materials in this PDF are copyrighted by the National Academy of Sciences. Copyright © National Academy of Sciences. All rights reserved.
• Authors:
  • Vance, John C
• Publication Date: 1979-4

Language

• English

Media Info

• Media Type: Digital/other
• Features: References;
• Pagination: 12p
• Serial:
  • NCHRP Research Results Digest
  • Issue Number: 113
  • Publisher: Transportation Research Board

Subject/Index Terms

• TRT Terms: Contracts; Eminent domain; Highway law; Land use; Legal factors; Property acquisition; Right of way (Land)
• Subject Areas: Administration and Management; Highways; Law;

Filing Info

• Accession Number: 01684102
• Record Type: Publication
• Report/Paper Numbers: NCHRP Project 20-6
• Files: TRIS, TRB
• Created Date: Oct 24 2018 3:25PM