When a highway expands through your land, the power of eminent domain will be invoked. Here is what you should know.

Each year, federal, state and local governments condemn thousands of acres of private land. Condemnation refers to the legal power of governments to take private property for public use, under the power of eminent domain.

Interestingly, eminent domain is not a specific power granted by either the U.S. or state constitutions. The only reference in the Constitution is that part of the Fifth Amendment which states ". . . nor shall private property be taken for public use without just compensation." But, the power of eminent domain is generally recognized as being inherent in the power of federal and state governments, primarily because government could not operate efficiently without it. If government could buy land only from willing sellers, construction of highways, river dams, utility lines and other public services would be seriously hindered.

Still, the inherent government power of eminent domain is limited; limitations on this power exist for the protection of private individuals and are probably the chief source of disputes arising between the parties to a condemnation proceeding. In Missouri, the General Assembly (legislature) is the primary condemning authority, although this authority often is delegated to state agencies, city or county governments and other governmental units.

Rural landowners most often face eminent domain when their property is taken for highway construction or improvement. A rural four'lane divided highway requires a right of way 200 feet or more wide, which means each mile of roadway occupies some 25 acres-more when interchanges and outer roads are involved.

The agency doing the taking by condemnation must follow certain legal procedures. Stephen Matthews, law professor at the University of Missouri-Columbia (UMC), and Timothy Triplett, then a graduate law student at UMC, outlined these procedures in UMC Guide 500, "Your Rights Under Condemnation in Missouri." Although the guide was written some time ago, the procedures outlined and the property owner's rights described are still valid. A copy of the guide is available on the internet at http://aglaw.missouri.edu/AgLaw/condemnation.htm. 

The process begins when a representative of the condemning agency contacts a landowner about the sale of the property being condemned. The landowner and the agent negotiate, trying to agree on a fair value. In the vast majority of cases, the process ends at this point. A price is agreed upon by the landowner and the agency, and nothing remains to be done but to transfer the property.

"Even when you and the condemning agency agree on a price for the property, it's wise to retain a lawyer early in the process-especially if you haven't bought or sold land recently," said Matthews. "Good counsel will know eminent domain law and real estate law and can point out special situations that may affect the valuation of the property. His advice can be valuable in determining how much compensation is to be paid."

But many property owners agree to sell without the benefit of legal counsel and consider the transaction just and fair. When the Missouri Department of Transportation (MoDOT) surveyed the widening of U.S. Highway 63 and the U.S. 63-60 interchange just southeast of Willow Springs, Mo., the planned track of construction bisected the Paul farmstead. In fact, the interchange is located exactly on the site where Roland ("Pig") and Donna Paul's home formerly stood. The highway construction took only 40 acres of the Paul's 280'acre farm, but diced the property up into several small tracts.

"We knew something was going on well before MoDOT made the initial contact to let us know the highway intersection was going in and that they would need a sizeable chunk of our land," said Pig Paul. "I told the MoDOT agent that I wanted every cent we could get and we negotiated. But we never considered fighting the condemnation."

The Pauls operated as a family corporation, and sold the condemned land in two different transactions.

"We sold off an additional 80 acres to a separate buyer and the kids kept a few acres for a home site," Paul added. "In our negotiation, MoDOT agreed to buy an additional 20 acres [not needed for the highway work] and moved their maintenance shed to that tract.

"From our viewpoint, it all worked out fairly," Paul said. "MoDOT paid us a fair price for the property, their check didn't bounce, and I didn't have to hire a lawyer."

"We appraise property fairly and take into account the value of buildings and improvements," said Kevin Keith, MoDOT chief engineer. "We don't want to pay more than the fair market price for property-we're using taxpayers' money-but we aren't out to steal anyone's land. We don't try to low'ball the price. We aren't real estate speculators-our business is building and maintaining roads and bridges. Still, for whatever reasons, there are some people who don't want to sell."

In Missouri, if no agreement can be reached, the court process begins with the condemning agency filing a petition in circuit court. This is much the same method by which any lawsuit begins; condemnation proceedings carry a guarantee of trial by jury of all factual issues. The petition names the condemning agency as plaintiff and lists those having compensable property interests as defendants.

The clerk of the court issues a summons, giving all parties notice that a hearing will be held. The initial hearing gives the landowner an opportunity to challenge the agency's legal procedure as well as its power to condemn property. In most cases, the circuit judge will appoint three disinterested property owners as commissioners to assess damages. After appraising the property, these commissioners file a report with the court; at least two of the three must concur in the report. The clerk of the court then notifies all parties of the report.

The agency and the landowner have 10 days after this notice to file any exceptions to the report. If exceptions are filed, a jury trial will follow to determine just compensation. However, if neither party objects to the report, the agency pays the landowner the amount listed in the report, and title to the property is transferred to the agency. Even if exceptions are filed to the commissioners' report, the condemning agency can take immediate possession of the land by depositing with the circuit clerk the amount set by the commissioners as just compensation.

Only a small percentage of condemnation disputes actually result in a jury trial. Most often, a settlement is reached before the trial stage.

Arkansas landowners have an intermediate step available in condemnation disputes. Across the state, mediators trained and certified by the Alternative Dispute Resolution (ADR) Commission can help the parties to a disputed condemnation arrive at a settlement.

"Parties may voluntarily agree to go to mediation," said Jennifer Taylor, ADR Commission executive director. "Or if litigation gets to court, the circuit judge may order the case to be mediated, either before or in lieu of a trial."

The mediation process usually is less expensive and takes up less of the court's time than a jury trial.

There is general consensus that such things as roads, bridges and public buildings come under the heading of "public use." However, nothing in either the federal or state constitutions precisely defines the term. Under eminent domain, it is generally agreed that the public must benefit from the taking of private property.

In recent years, the concept of public use has been broadened by some governments to include the taking of property for the benefit of some select group, the "public use" being merely the prospect of more tax revenues.

Back in the June/July 2000 Today's Farmer, we reported on an attempt by the Springfield, Mo., city council to condemn Robthom Dairy Farms, owned by the Thomson family just east of the city.

The public use sought by Springfield was not a new school or power plant. Rather, the city wanted the Thomsons' property to add to a nearby industrial park, with the potential for economic gains from higher tax revenues than the dairy farm generated.

But when word got out about the planned taking, local residents raised a ruckus; so many of them called city hall to protest that they overloaded the telephone system. The Springfield city council dropped its plans to condemn the Thomson property and went looking elsewhere for land to expand the industrial park.

Recently, courts may be defining "public use" more narrowly than that. Last summer, a Michigan case that established economic development as a legitimate public use was overturned.

A case now before the U.S. Supreme Court may shed still more light on what constitutes legitimate public use in matters of eminent domain. Susette Kelo brought suit against the city of New London, Conn., when the city sought to condemn her home to make way for a mixed'use real estate development. See Steve Fairchild's Country Corner on page 2 in this issue for more information on the Kelo vs. New London case.

MoDOT outlines ambitious highway plans

"Voters of Missouri have given us an opportunity and the resources to accomplish it," said Kevin Keith, Missouri Department of Transportation (MoDOT) chief engineer. "We intend to show them that we can spend their money wisely and upgrade the highways of the state."

Keith is talking about the "Smoother, Safer, Sooner Roads" initiative which appeared on the November 2004 ballot as Amendment 3 and will make some $1.7 billion more available to Missouri's transportation system over the next 5 years. With controversies over MoDOT's performance the past few years, the agency needed to do some fence'mending. By passing Amendment 3, voters gave MoDOT more resources for state road and bridge work and sheltered highway funds from political pilfering by other agencies and programs.

"We have some catch'up to do in highway maintenance and $400 million of Amendment 3 dollars are funding improving 2,200 miles of roads," Keith said. "And we have joined with statewide planning partners-regional planning commissions, local government officials, civic groups-to prioritize major projects," he added.

In February, planners came in with 200 major highway and bridge projects, totaling about $8 billion.

"We had to trim that substantially," said Keith. "We have cut that to 59 major projects at an estimated cost of $3 billion and are now working to pick $1.3 billion from that list. But local people had a say in the planning and helped us determine where Missouri should invest this new money."

Not only will Amendment 3 money fund new highway work, but it will help MoDOT complete several major projects now underway. For example, a new Highway 13 bridge, spanning the Missouri River at Lexington, was dedicated this spring. When widening work is completed on about 5 miles of Highway 13 near Collins, Mo., drivers will have a four-lane artery from Kansas City to Springfield, via Highways 7 and 13.

Missourians are still pitching in to help. On the April ballot, residents in several locations voted on special sales tax initiatives to help fund highway improvements in their region. Voters in Franklin County passed a sales tax increase to pay part of the cost of converting Highway 100 to a four-lane roadway between Union and St. Louis County. In southeast Missouri, Poplar Bluff residents passed a similar measure that has the city shouldering part of the cost to make about 50 miles of U.S. 67 a four-lane highway.

A northeast Missouri sales tax initiative in counties intersected by U.S. Highway 36 (Macon, Marion, Monroe, Ralls and Shelby) failed to pass when Ralls County voters turned it down. The half'cent sales tax would have helped fund the widening of a 52-mile stretch of U.S. 36, from Hannibal to Macon.

"We're not spending MoDOT's money, we're spending the money of the citizens of Missouri, and we need to spend it wisely," said Keith. "We're not interested in building Cadillacs; we want to build solid, serviceable Chevys."

He points to the planning of U.S. 50 improvements for several miles west of Jefferson City. The first cost estimate for the project was $117 million.

"We sent the planners back to take another look," Keith said. "They came back with a cost of $87 million."

The main highway need that goes unmet is the widening of Interstate 70 between St. Louis and Kansas City.

"We haven't budgeted any Amendment 3 money to improve I-70," said Keith. "With the traffic I-70 carries, it needs to be six lanes now. But that would cost upwards of $3 billion. We will continue to maintain I-70, of course, but because of the heavy traffic, we're doing most of our maintenance work at night.

"Still, we have a record number of highway and bridge projects planned," he said. "As we complete them over the coming months, Missourians will see that we are spending their money wisely."