CONDEMNATION OF PROPERTY FOR HIGHWAY PURPOSES: A LEGAL ANALYSIS: PART I

STATUTES OF THE FORTY-EIGHT STATES AND TERRITORIES WERE REVIEWED WHICH PERTAIN TO THE CONDEMNATION OF LAND FOR HIGHWAYS. FOUR ASPECTS OF THE POWER OF EMINENT DOMAIN AND THE MANNER IN WHICH THE SEVERAL STATE LEGISLATURES HAVE HANDLED THEM ARE DISCUSSED: (1) DELEGATION OF THE AUTHORITY TO CONDEMN, (2) PROPERTY WHICH MAY BE TAKEN, (3) TYPE OF LEGAL ESTATE WHICH MAY BE ACQUIRED, AND (4) DESIGNATION OF THE PROCEDURE TO BE FOLLOWED. A COMPARISON OF THE VARIOUS STATUTES WITHIN A PARTICULAR JURISDICTION REVEALS A SURPRISING AMOUNT OF INTERNAL CONFLICT. IT SEEMS IMPOSSIBLE TO ESTABLISH A PRECONCEIVED STANDARD BECAUSE CONDITIONS VARY FROM STATE TO STATE. WITH THE INCREASED EMPHASIS ON URBAN EXPRESSWAYS, MORE DEVELOPED PROPERTY WILL BE REQUIRED THAN EVER BEFORE. ACQUISITION COSTS MAY BE REDUCED IF THE CONDEMNOR IS AUTHORIZED TO CONDEMN PROPERTY TO BE USED AS SITES FOR STRUCTURES NOW IN THE PATH OF A PROJECTED HIGHWAY, BUT WHICH CAN BE RELOCATED. BASED ON A SYNTHESIS OF EXISTING LEGISLATION, IT IS RECOMMENDED THAT A WELL-DRAFTED STATUTE SHOULD INCLUDE THE FOLLOWING ELEMENTS: (1) THE DELEGATION OF THE POWER TO CONDEMN SHOULD BE EXPRESSED IN EXPLICIT, UNAMBIGUOUS LANGUAGE, (2) THE PURPOSE FOR WHICH PROPERTY MAY BE CONDEMNED SHOULD BE BROAD IN SCOPE TO ENABLE THE AUTHORITIES TO MEET THEIR REPONSIBILITY, (3) THE DESCRIPTION OF THE TYPES OF PROPERTY WHICH MAY BE ACQUIRED BY CONDEMNATION SHOULD BE OF SUFFICIENT BREADTH TO PERMIT THE CONDEMNOR TO ACQUIRE ANY AND ALL PROPERTY REQUIRED FOR HIGHWAY PURPOSES, (4) THE STATUE SHOULD EXPRESSLY STATE WHETHER A FEE SIMPLE OR AN EASEMENT MAY BE ACQUIRED, (5) THE ENABLING LEGISLATION SHOULD CLEARLY STATE THE PROCEDURE TO BE FOLLOWED BY EXPRESSLY INCORPORATING ANY OR ALL SECTIONS OF THE GENERAL CONDEMNATION LAW OR DESIGNATING A SPECIAL PROCEDURE.

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    • 66 PP, 18 TAB, 8 PHOT, 3 APP 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
  • Publication Date: 1958

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  • Accession Number: 00238694
  • Record Type: Publication
  • Files: TRIS, TRB
  • Created Date: Aug 4 1994 12:00AM