CONSTITUTIONALITY OF CONDEMNATION FOR A SUBSTITUTE USE

A COMPENSABLE INJURY TO PROPERTY FOR WHICH MONEY DAMAGES WOULD BE INADEQUATE MUST BE SHOWN FOR SUBSTITUTE CONDEMNATION TO BE APPROPRIATE. THE CONSTITUTIONALITY OF CONDEMNATION, WHETHER DIRECT OR SUBSTITUTE, DEPENDS UPON A JUDICIAL FINDING THAT THE TAKING IS FOR A PUBLIC USE. IN MISSISSIPPI STATE HIGHWAY COMMISSION V. MORGAN, A CASE OF FIRST IMPRESSION, THE COURT HELD THAT CONDEMNATION OF AN EASEMENT TO REPLACE A PERMISSIVE HIGHWAY ACCESS SERVED A PROPER PUBLIC PURPOSE, AND WAS INCIDENTAL TO THE PRIMARY PURPOSE OF CONDEMNATION FOR AN INTERSTATE HIGHWAY RIGHT-OF- WAY. CITING THE GENERAL RULE THAT AN INCIDENTAL PRIVATE BENEFIT WILL NOT VITIATE A CONDEMNATION WHEN THE PUBLIC PURPOSE IS PRIMARY AND PARAMOUNT, THE COURT SUSTAINED THE SUBSTITUTE CONDEMNATION UNDER THE PUBLIC USE TEST. BY ADOPTING SUCH A BROAD VIEW OF PUBLIC USE AS APPARENTLY COULD JUSTIFY ANY SUBSTITUTE CONDEMNATION FOR ACCESS WAYS WHICH ACCOMPANIES A DIRECT CONDEMNATION OF LAND FOR HIGHWAY PURPOSES, THIS DECISION WOULD SEEM TO CREATE UNCERTAINTY REGARDING THE STATUS OF SEVERAL PRINCIPLES THAT HERETOFORE HAVE BEEN RELIED UPON IN DETERMINING THE APPROPRIATENESS OF SUBSTITUTE CONDEMNATIONS. THESE QUESTIONS - - RELATING TO THE QUANTUM AND CHARACTER OF PROPERTY AND PROPERTY DAMAGE WHICH MUST BE INVOLVED, AND THE INADEQUACY OF MONEY DAMAGES - - MUST BE RECONCILED IF THE APPROACH ADOPTED BY THE MAJORITY IN THE MORGAN CASE IS TO BECOME A CONSTRUCTIVE ELEMENT IN EMINENT DOMAIN LAW.

  • Supplemental Notes:
    • No 41, pp 7-14, 1 FIG, 18 REF
  • Authors:
    • Wolf, G T
  • Publication Date: 1966-8

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  • Accession Number: 00238295
  • Record Type: Publication
  • Files: TRIS
  • Created Date: Dec 22 1994 12:00AM