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The Water Cooler
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Eminent Domain?
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<blockquote data-quote="Surveyor1653" data-source="post: 2214589" data-attributes="member: 5197"><p>OP:</p><p></p><p>(None of the following is to be considered legal advice. It's free on the internet and well...you know: Getting what you paid for and all that.)</p><p></p><p>As has been stated, get an attorney. Make sure that your attorney is one who's pled these types of cases before...with success. Your attorney may also suggest that you have your own appraisal done. You should request a copy of the engineer's design plans for the project to provide to your appraiser, whether or not your attorney advises it and possibly even if he advises against it. That request may come in handy later.</p><p></p><p>If this property lies along a section line, then you're dealing with, at least, statutory right-of-way. There is no eminent domain claim here, it is what it is and that "take" will not include any financial compensation unless they want it to. You must also be careful of prescriptive easements. I've seen jurisdictions get away with an uncompensated take beyond statutory right-of-way because the landowner fenced well off of the ROW line. They simply claimed a prescriptive easement between the fence and ROW line, stopped the take at the landowner's fence, and didn't pay a dime in damages. <strong>I cannot state this clearly enough to you and everyone else: <em>Know the limits of your interest in your property. The courts WILL expect this of you.</em></strong> </p><p></p><p>For any take beyond the statutory right-of-way, there are numerous considerations that their appraiser will take into account. They will consider the highest and best use of the property, diminished capability of use based on the take and any improvements, etc. Those considerations will be made both in your favor and to your detriment, so it's good to understand the nature of the improvements to be made. The appraisals (if you also have one done) should come even with one another. If not, argue your case to the powers that be. </p><p></p><p>The simple fact of the matter in many of these cases is that there is rarely the same deal for all parties because there are those who put up more resistance than the rest. It all comes down to how big a deal it is for you./</p><p></p><p></p><p></p><p>For the record: The 5th states "....public use...." and <em>that</em> was the rub in <em>Kelo</em>: Whether or not a commercial enterprise constituted public use. That particular gaggle took a crayon and subsituted one noun for another in the Constitution.</p></blockquote><p></p>
[QUOTE="Surveyor1653, post: 2214589, member: 5197"] OP: (None of the following is to be considered legal advice. It's free on the internet and well...you know: Getting what you paid for and all that.) As has been stated, get an attorney. Make sure that your attorney is one who's pled these types of cases before...with success. Your attorney may also suggest that you have your own appraisal done. You should request a copy of the engineer's design plans for the project to provide to your appraiser, whether or not your attorney advises it and possibly even if he advises against it. That request may come in handy later. If this property lies along a section line, then you're dealing with, at least, statutory right-of-way. There is no eminent domain claim here, it is what it is and that "take" will not include any financial compensation unless they want it to. You must also be careful of prescriptive easements. I've seen jurisdictions get away with an uncompensated take beyond statutory right-of-way because the landowner fenced well off of the ROW line. They simply claimed a prescriptive easement between the fence and ROW line, stopped the take at the landowner's fence, and didn't pay a dime in damages. [B]I cannot state this clearly enough to you and everyone else: [I]Know the limits of your interest in your property. The courts WILL expect this of you.[/I][/B] For any take beyond the statutory right-of-way, there are numerous considerations that their appraiser will take into account. They will consider the highest and best use of the property, diminished capability of use based on the take and any improvements, etc. Those considerations will be made both in your favor and to your detriment, so it's good to understand the nature of the improvements to be made. The appraisals (if you also have one done) should come even with one another. If not, argue your case to the powers that be. The simple fact of the matter in many of these cases is that there is rarely the same deal for all parties because there are those who put up more resistance than the rest. It all comes down to how big a deal it is for you./ For the record: The 5th states "....public use...." and [I]that[/I] was the rub in [I]Kelo[/I]: Whether or not a commercial enterprise constituted public use. That particular gaggle took a crayon and subsituted one noun for another in the Constitution. [/QUOTE]
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