Philip Hundl, a landowner rights attorney, explains the differences between eminent domain and condemnation, the process of condemnation, and the rights of landowners facing condemnation proceedings.
Hi, I’m Philip Hundl. I’m an attorney in Wharton County. My practice primarily focuses on representing landowners facing condemnation proceedings.
The terms eminent domain and condemnation often come up. What do either of these terms mean? How do they fit together? Eminent domain and condemnation are obviously interrelated, but they mean different things.
Eminent domain, I always think about “eminent” and “domain.” Eminent domain means the right that governments have to take private property from citizens for public use. That could be the United States government, the state government, quasi-governmental entities.
But let’s just call it the state or the government, which can take property through their inherent power of eminent domain. This power comes from the United States Constitution for the U.S. government, the Fifth Amendment, and then our Texas State Constitution, Article 1, Section 17.
It basically says, yes, the government can take private property from its citizens, but only if it gives just compensation. And yes, there’s a lot of interpretation of what just compensation is and valuations of land and the damage to the remainder.
But for the purposes of this video, it’s about eminent domain and condemnation and what those two terms mean. So condemnation is the exercise of the power of eminent domain or the process that a government or the state uses when it’s exercising its power of eminent domain. The process to do that, or the exercise of that power, is condemnation.
Condemnation is the process or procedure, the legal procedure. So there are three elements to think about with eminent domain. The first is there needs to be someone seeking to take, and that’s the condemner, typically the government. In many cases now, it’s a private entity. So we talk about the state, public entity, and then private entity. Yes, private entities also have the power of eminent domain because their projects are for public use, public good, and therefore, exactly the same rationale that the government has as inherent powers because it’s for the public good or public use.
The other element we talked about is property must be taken for public use; it can’t be taken for non-public use. Well, the term public use has been stretched throughout the years, and different cases will try to limit that while other cases will try to expand it.
And then the landowner must be adequately compensated; this is what we refer to as just compensation. Many cases are interpreting that. So those are the components of eminent domain. Now, the components of condemnation or the process of condemnation we’ll go into in more detail in another video, but it involves formal and informal steps like an initial offer to the landowner. In this case, let’s just use a pipeline company.
A pipeline company’s representative contacts a landowner initially and makes an initial offer, then there’s a follow-up. There could be many discussions back and forth between the right of way agent representative of the pipeline company with the landowner.
Many conversations, but then there’ll be a final offer. That final offer will also be accompanied by an appraisal of the property that’s going to be taken, provided to a landowner pursuant to statute, pursuant to Texas law. Then there’s a certain waiting period after the final offer.
And then the pipeline company can file a condemnation suit, a legal proceeding lawsuit is filed in state court. The initial part of a condemnation suit is what I call a special proceeding. It involves a special commissioners hearing.
Special commissioners, not county commissioners but special commissioners, are appointed by the court. A hearing is conducted where the landowner and the pipeline company can put on evidence of valuation. After the hearing is complete, the special commissioners will issue an award.
Either side, the pipeline company or landowner can object to that award, and then the condemnation case takes on the same characteristics as normal civil litigation in state court. Which would include discovery and potentially depositions and pretrial motions and dispositive motions, and then end with a trial unless the case is settled beforehand.
Most courts will order the parties to mediation in an attempt to resolve the case. After a trial, if either side wishes to appeal, there’s an appellate process involved that either side could use. So, with that, hopefully that’s a helpful discussion on eminent domain and condemnation.
As I recommend to all landowners facing condemnation, please seek legal counsel, visit with a landowner condemnation lawyer to understand your rights, the procedures going forward, and above all, please do not sign documents without consulting an attorney.
