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GANJE: The myths of modern condemnation

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David Ganje

David Ganje

The use of eminent domain (condemnation) is a modern legal problem. Condemnation is the taking of property for a public use by a government and in some cases for private use by a developer or operator or by an approved business such as a utility, mall developer and others. A condemnor is the party taking the property. This taking of property is a legally approved right given to government agencies and private businesses under particular circumstances described in the law. Obtaining a legally approved easement or right-of-way by condemnation does not however take away the property owner’s title to the land. This continued ownership is important enough to be secured by the state constitution which provides that title to land taken for highways remains with the landowner. (SD Const Art VI, § 13.)

In 2006 the South Dakota legislature became so concerned about misuse by government agencies on the issue of taking property for private use that it created a new law which holds that no county, municipality, or housing and redevelopment commission may acquire private property by use of eminent domain for transfer to any private person, nongovernmental entity, or other public-private business entity. The legislature in passing its general condemnation and eminent domain laws also restricts it to the taking or damaging of private property for public use. But the fairness of eminent domain is not the subject of this piece. I have discussed that issue in other pieces. For my comments on the fairness of the process and problems with the procedure of eminent domain the reader is referred to these articles: ;

State law allows condemnation for a ‘public use,’ but the law does not define ‘public use.’ This leaves great discretion in the hands of those in power. There exists no statutory guideline or restriction on what is considered public use in a condemnation proceeding, except those involving telephone services. The exercise of prevailing political winds by those in power should never be the benchmark for the taking of property.

Property owners are obliged, so says David Ganje, to understand an important principle of property law. An urban legend is a piece of information or supposed knowledge circulated among the public as though it were true. I address in this piece an urban legend of goodly proportions, but an established urban legend nevertheless which confuses the public (and is equally misunderstood by a number of lawyers): Taking land by condemnation does not create a legal “release” from possible liability of a condemnor in using the right-of-way or land. A Judgment of Condemnation against another party’s land does not give ‘herd immunity’ in favor of the condemnor. This is so even where the right has been granted by a court in favor of the condemnor.

The condemnor’s rights, in the absence of an express contract or agreement to the contrary, are those of a general easement holder in the designated real property which is to be used or accessed. A Judgment of Condemnation given by a court creates no broad sweep of rights to over-use or to abuse the land. Remaining legal rights of the landowner such as trespass, damages, nuisance, injunction are not eliminated. And certainly, a Judgment does not give unlimited, open access to the particular land that is taken. A Judgment of Condemnation grants the right to use such land consistent with, and limited to, the purpose for which the request was formally asked of the court. Nothing more.

David Ganje practices law in the area of natural resources, environmental and commercial law with Ganje Law Office. His website is

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