Vail Law column: Adverse possession and condemnation explained, Part 3 | VailDaily.com

Vail Law column: Adverse possession and condemnation explained, Part 3

Rohn K. Robbins
Vail Law

Editor's note: This is the third part of a three-part series.

In the first part of this series, we visited the general concepts of condemnation and adverse possession within the context of the imbroglio that was swirling around the Barnes Ranch parcel in Eagle.

In short, the town was considering carving out a slice of privately owned land to incorporate into its proposed new Eagle River Park. The owners made it clear they had no interest in selling, and the town considered obtaining the property through adverse possession.

The town has since pledged to keep development off the Barnes parcel, but we'll round out this series with the "hows" and "whats" to the legal construct of condemnation.

In a nutshell, in discourse centered about real estate, "condemnation" means to appropriate private property for the public use. "Appropriate," in turn, means "to take to or for oneself," and/or "to take possession of." In other words, "appropriating" private property for the public use means snatching away private property and make it public property instead.

Say what? How can the great "they" of government do that?

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Well … by the power of "eminent domain."

Eminent domain is the power of the government to take (that's right, "take" — as in "it's mine now and not yours") private property for public use. The exercise of eminent domain extends through all levels of government: federal, state and municipal.

The Fifth Amendment grants the federal government the right to exercise its power of eminent domain, and the due process clause of the 14th Amendment makes the federal guarantee of just compensation applicable to the states.

With the curious exception of North Carolina (which grants the power via statute), state governments derive the power to initiate condemnation proceedings from their state constitutions. The constitutional and statutory provisions require federal, state and local governments and subdivisions of government to pay an owner for property taken for public use at the time the property is taken.

Public Welfare?

The power of eminent domain was created to authorize the government or the condemning authority (known as the "condemnor") to conduct a compulsory sale of property for the common welfare, such as for reasons of public health or safety, but what is in the "public welfare" has been recently broadly expanded.

In Kelo v. City of New London, a 2005 U.S. Supreme Court case, the Supremes ruled in a 5-4 decision that local governments may force property owners to sell to make way for private (rather than public) economic development when government officials decide it would benefit the public, even if the property is not blighted and the new project's success is not guaranteed.

This was a shift of tectonic proportions. The decision provided that private property may now be taken, not to make way for, say, a public airport, but instead, for a Wal-Mart or a private condominium development, a casino or whatever else may be deemed to stoke the economic engine. Yikes!

In any event, "just compensation" is required, in order to ease the financial burden incurred by the property owner for the benefit of the public.

Specifically, the Fifth Amendment says, "No person … shall be deprived of life, liberty or property without due process of law; nor shall private property be taken without just compensation." That's it; the Constitution devotes all of nine words to the subject of eminent domain and does so in sort of a presumptive, backdoor manner.

What I mean by this is the wording of the Fifth Amendment "presumes" private property may be taken for the public use and assures, simply, that when it is, the owner must be fairly compensated. There is assurance, too, that the property may not be taken without "due process" of law.

"Due process of law" means the law applied in its regular course of administration through the courts. Focus, if you will, on each word separately: "due" meaning just, proper, regular or sufficient and "process" meaning the course by which a thing proceeds. Patching the two words back together, "due process" means regular or sufficient processing of a matter through the ordinary administrative procedures of the courts.

But what does eminent domain have to do with condemnation? Condemnation is the power of eminent domain exemplified. Condemnation is the process by which private property is taken for the public use through the power of eminent domain. Eminent domain is the power to take, and condemnation is the application of that power.

Tying all of this up in a neat Christmas bow: Adverse possession is the means by which private property can be acquired by another. Condemnation is the exercise of eminent domain by which "the public" can acquire private property for the public good.

Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address, robbins@slblaw.com.