What Property May be Taken Through Eminent Domain?

An eminent domain action usually involves real property. But outside real estate, any property may get taken by a municipality if it happens within the legal confines of the law and is based on the Fifth Amendment's Takings Clause, which requires just compensation and a public purpose.

This includes tangible and intangible property, such as franchises and contracts.

For example, the City of Oakland notoriously tried to claim the Raiders National League Football team through eminent domain. The California Supreme Court blocked this in 1982.

The following article discusses which kinds of property may get taken through eminent domain. That includes property deemed a public risk and that which is "dedicated" to the public outside of the condemnation process.

Property That's Deemed a Risk

A government might take plats of land for real estate development. But when it comes to certain property, local governments begin condemnation proceedings for different reasons. Instead of taking property for public use, they might condemn it as a risk to public health or safety. This is the more appropriate use of the term "condemnation."

For example, the government may decide to condemn and then seize the property of an old shipyard. This is to clean up asbestos and other environmental pollutants. The government can take any private property if its proximity to the clean-up area is unsafe. In this regard, the seizure is in the best interests of the public, even if the land ultimately is never used by the public.

Dedication of Property

A "dedication" of land is a similar form of appropriation of private land (or an easement) for public use.

Dedication of property can happen through:

• Express dedications — Dedication by deed or other written instrument
• Implied dedications — Suggestive conduct of the owner of the land to advance a public right

Instead of going through the adverse condemnation process, the landowner voluntarily transfers property. A dedication may be express or implied through:

1. The property owner's conduct and
2. The acts and circumstances related to the property

For instance, someone may own a parcel of property that includes access to a historical site. They may dedicate this part of the property to the government through an offer of dedication. Such a generous act of the owner means the dedicated property may benefit the general public.

Dedicated lands can include the dedication of a street for which the government will overtake maintenance responsibilities. For example, private access roads may become public roads or public streets to provide a right-of-way onto dedicated lands.

Still, a dedication also may arise following:

1. An adverse (to the interests or use of the landowner)
2. Exclusive use by members of the public (on behalf of the public) under a claim of right

Such a claim by an adverse public user is like a common law "adverse possession" claim. This is between private parties and is predicated on the owner's knowledge of and allowance of the claim. Many states provide for common law dedications and statutory dedications.

Exceptions for Certain Property

Remember the disclaimer that not all property may get taken for any purpose. Many states prohibit the exercise of eminent domain for land use in the cases of:

• Cemeteries
• Gardens and orchards
• Factories

Once eminent domain proceedings begin, a landowner can't convert their property to one of such uses to avoid condemnation.

Talk to an Eminent Domain Lawyer

Trying to wrap your head around exactly what types of property may get taken in an eminent domain action can be confusing. Courts won't allow takings if they're not for the public's good or if the government doesn't fairly compensate the landowner.

If you believe your property is being unjustly taken, know your property rights. Learn more about your options by meeting with an experienced eminent domain attorney near you.