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.

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  • Supplemental Notes:
    • Page range: pp 766-N1 through 766-N20. This paper was also published as NCHRP Research Results Digest No. 113, April 1979, 12 pages. A supplement to this paper by J.C. Vance was published in Addendum 2, December 1980, pp 766-N20-S1 through 766-N20-S2.
  • Corporate Authors:

    Transportation Research Board

    500 Fifth Street, NW
    Washington, DC  United States  20001
  • Authors:
    • Vance, J C
  • Publication Date: 1979-6


  • English

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  • Accession Number: 00193801
  • Record Type: Publication
  • Report/Paper Numbers: Addendum 1
  • Files: TRIS, TRB
  • Created Date: Aug 31 1998 12:00AM