Robbins: How the government can take what’s yours

Although I am not apprised of the particulars of either, the proposed new power line from Gilman to Avon, and the new section of bike trail just west of Wolcott raise issues of condemnation and eminent domain.

OK? So what are they?

In lay terms, as you know, to “condemn” means to inveigh against and/or to express disapproval or reproach. In a legal sense, however, condemnation can mean two things: First, one may be condemned to hang by the neck until dead, or some similar parceling out of a sentence, or, in the context of real property, “condemning” or “condemnation” means something else entirely. In a nutshell, condemnation in discourse centered on real estate means to appropriate (or, perhaps, inveigle) private property for public use.

Again, while I don’t know all the facts, in the instance of the two laudable projects identified above, I suppose that the government seeks, at least in part, to appropriate property which, for the time being anyway, isn’t its.

Before forging on, then, let’s define “eminent domain.”

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It’s the power of the state to take what’s yours and make it theirs. It is the state’s right to glom onto private property and convert it to public use. The exercise of eminent domain extends through all levels of government: federal, state and local. “Eminent” can be read as “preeminent,” that is, standing out above others or superior to. 

“Domain” means simply “territory.” More succinctly, a domain means “a territory over which rule or control is exercised.” When you put the two together, they spell out the superior right of government to exercise control over a particular territory, provided that such purpose is to advance the public weal. So the tap dance goes like this: provided the government takes private property for some legitimate and necessary purpose, it may snatch it from its owner.

The power of eminent domain is founded in both the federal and state constitutions. The Fifth Amendment of the federal Constitution speaks to eminent domain. However, the Constitution limits the power to take for a public purpose and prohibits the exercise of the power of eminent domain without just compensation to the owners of the property that is taken. 

What this means is, if it’s for the public welfare, the government can seize your property. But if the government filches it, you have to be paid “fair value” for what is no longer yours. This is how the government acquires land for such purposes as putting in new bike paths and/or power lines. This is also why such public projects often cost a fortune; much of the cost is sunk in scooping up the private property.

Think, if you will, of those lots along C-470 west of Denver that are divided by the highway. Odds are the government took a strip out of the middle of each of those lots by the exercise of eminent domain and “justly compensated” the owners for their loss.

OK then, the process of exercising the power of eminent domain is commonly referred to as “condemnation,” or, less commonly, “expropriation,” both fancy ways of saying “it’s mine now and not yours.” Without this power, growth, development and general improvement of the society simply could not advance. However, the power must be exercised with caution and forbearance.

The right of the government to exercise the power of eminent domain extends to any portions of the soil of the state if so doing is deemed to be a public exigency. Also, the taking may be partial. Say the government only needs a teensy part of your land rather than the whole shootin’ match. In such a case, the government may condemn only the teensy bit and compensate you only for the partial taking (presuming, of course, that what remains can reasonably still be used for its appropriate purpose).

Exercise of the power is not automatic, nor is it, at least in theory, autocratic. The affected person always has the right to notice and to voice their protests and concerns. Only after long, hard and careful deliberation, and a showing that there are no reasonable alternatives, may the government exercise this seemingly extreme and often disruptive device.

A fairly recent trend, however, is to expand the definition of “public good.” In the past few years, several jurisdictions, with various levels of success, attempted to condemn private property and appropriate it to the “public good” for the sake of private urban renewal. Similarly, many jurisdictions have been less than cautious in reaching the determination that the proposed taking is “necessary” rather than merely “desirable” or “expedient.”

As in most instances of the government flexing its authority, the public must be the watchdogs and guard against abuse. Bark when you detect danger. It is the only way to make sure that We the People are well served by those elected to exercise 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 Caplan & Earnest, 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 Rrobbins@CELaw.com. His novels, “How to Raise a Shark (an apocryphal tale),” “The Stone Minder’s Daughter,” “Why I Walk so Slow” and “He Said They Came From Mars (stories from the edge of the legal universe)” and “The Theory of Dancing Mice” are currently available at fine booksellers.