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Just Compensation | Appraisal

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An interesting and timely decision from the U.S. Court of Appeals for the Fifth Circuit.

In United States v. Bennett, No. 23-40680 (July 24, 2025), way back in the day Hidalgo County, Texas, acquired an easement over her land to construct and maintain a flood-control levee, with the County soon thereafter assigning its rights to the federal government.

Flash forward to 2008, and the feds constructed a portion of the border wall atop the levee, for the dual purposes of flood control (it said) and border protection. Flash forward again to 2020, when the feds instituted an eminent domain proceeding “to construct and maintain fencing, barriers, and related structures to secure the border.” Slip op. at 3.

Bennett then asserted that the original wall built by the feds exceeded the scope of the flood-protection easement which the County had taken, and the feds had therefore been trespassing. This, in…

Continue Reading CA5: The Border Wall Isn’t A “Fixture”

It appears that the U.S. Court of Appeals for the Eleventh Circuit has addressed the issue the U.S. Supreme Court sidestepped recently in DeVillier v. Texas, 601 U.S. 285 (2024): do you need Congress’s ok to sue for just compensation for a taking?  

In Fulton v. Fulton County Bd of Commissioners, No. 22012041 (July 31, 2025), a 2-1 panel of the court held that the Just Compensation Clause is indeed “self-executing,” meaning that even in the absence of a legislative recognition of a cause of action, an owner whose private property has (allegedly) been taken by government action may sue for compensation. 

The opinion starts off dramatically, with this:

In Greek mythology, the Greek gods condemned Tantalus to eternal hunger and thirst, all while forcing him to forever stand in a shallow pool of water under a tree with low-hanging fruit. Though the remedy for Tantalus’s hunger and…

Continue Reading CA11: Congress Doesn’t Need To Legislate A Cause Of Action For Just Compensation

Today we have a guest post by New York colleague Jennifer Polovetsky, who writes about an age-old question: what are “special benefits” that accrue to the remainder in a partial taking, and can these benefits be offset against just compensation or severance damages?  

Thanks to Jennifer (and to the New York Law Journal) for allowing us to republish her intriguing piece.

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The Not So ‘Special’ Benefit in Eminent Domain

by Jennifer Polovetsky

Article I (§7, subd. (a)) of the New York State Constitution and the Fifth Amendment to the United States Constitution both provide that: “Private property shall not be taken for public use without just compensation.” This doctrine has been upheld by the courts of this land since its inception.

In 1897, in Bauman v. Ross, the United States Supreme Court held that “the just compensation required by the Constitution to be made to the owner

…
Continue Reading Guest Post (Jennifer Polovetsky): “The Not So ‘Special’ Benefit in Eminent Domain”

TexasEmDomain2025Houston

MC: Texas is so big…

Audience: How big is it? 

MC: Texas is so big it needs two statewide eminent domain conferences!

That’s right, in addition to the Texas Eminent Domain Conference in Austin, there’s another one in Houston. We’ve attended both in the past, and can speak from experience that they are excellent.

Registration for the Houston event, August 14-15, 2025, is ongoing here. Details on speakers, topics, and related are available here. Here’s the agenda. Continue Reading Still Time To Register: 2025 Texas Eminent Domain Conference (Houston), August 14-15, 2025

Magna_Carta_(British_Library_Cotton_MS_Augustus_II.106)

810 years ago today* on a grassy plain down by the river, the barons convinced bad King John to affix his seal to Magna Carta. Or the Magna Carta. Or Magna Charta. However you want to grammarize it. (And no, he didn’t “sign” it, they didn’t do things like that back then.)

And boy was that guy bad even by the standards of medieval royals: when you type “bad king…” in your search engine, the first suggested search is “bad king … John.”

Badkingjohn

There’s a lot of good stuff in Magna Carta — and a lot of stuff that has been rendered irrelevant or quaint by the passage of time, and even some stuff that we’d consider cringe-worthy today (see art. 10, for example).

But we takings geeks all know and continue to appreciate article 28:

Nullus enarius aries, vel alius ballivus noster, capiat enar vel…

Continue Reading Happy 810th (The) Magna Carta (Charta) Day!

TX EmDomain2025

Mark your calendars — or better yet, register now — for the 8th Annual Texas Eminent Domain Conference (Houston), August 14-15, 2025.

We’ve attended in the past, and can report from first-hand experience that it is a great conference, chock-full of the information you need for eminent domain practice in the Lone Star State. 

Check out the agenda and speaker list., and thee to Houston!Continue Reading Register Now: 8th Annual Texas Eminent Domain Conference, Houston: August 14-15, 2025

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Be sure to check this out. The Practical Real Estate Lawyer has published an article by colleague Matthew Ackerman (who has since become a Michigan Court of Appeals judge). 

In “The Pitfalls of Objectively Measured Just Compensation: When Market Value Isn’t Enough” (pdf here), he writes about the ways that “just compensation” isn’t truly just. Those of you who have been around even a short time know how this works (or doesn’t). Market value as the measure when, by definition, eminent domain isn’t a free market transaction. The refusal to include fees and costs in the concept of just compensation (indemnity only for the property, not the property owner). Lack of relocation and business losses. 

He also suggests some ways to deal with this. Here’s his summary of the piece:

This article explains why a subjective approach to just compensation would lead to more just…

Continue Reading New Article: “The Pitfalls of Objectively Measured Just Compensation: When Market Value Isn’t Enough,” ALI Practical Real Estate Lawyer (2024)

Screenshot 2025-05-04 at 11-03-11 1033 Exchanges Advanced Strategies for Optimal Tax Deferral ALI CLE

Want to learn of some of the options available to property owners whose land is taken by eminent domain (or, even more sadly, destroyed by a disaster)?

Then you should sign up for next week’s ALI-CLE webinar, “1033 Exchanges: Advanced Strategies for Optimal Tax Deferral.”

Here’s a description of the program:

When property is lost due to an involuntary conversion such as a taking by eminent domain, destruction by natural disaster, or theft, many clients assume they must immediately face a significant tax burden from compensation received. However, IRS §1033 provides a powerful alternative—tax-deferral through strategic reinvestment. Understanding the nuances of 1033 exchanges allows attorneys to guide clients through the process, ensuring they maximize tax benefits and rebuild wealth effectively.

Join us for this comprehensive CLE course designed to equip legal professionals with the knowledge and tools needed to navigate 1033 transactions with confidence.

With our colleagues Alan Continue Reading ALI-CLE Webinar: Tax Consequences Of Eminent Domain (May 13, 2025)

Partial taking for highway project. You know what that means: severance damages. And you also know that often means a “general or special” benefits fight over how the remainder parcel may have been improved by the project, and whether these benefits can reduce the severance owed.

Before-the-project condition: undeveloped land on a frontage road with no nearby connection to the freeway. After-the-project condition: remainder property has direct freeway access, an increase in traffic to the site and easier ability to enter/exit, and curb and sidewalk improvements. The trial court concluded these specially benefited the remainder property, and could be offset against compensation.

In Utah Dep’t of Transportation v. Boggess-Draper Co., LLC, No. 20220875 (May 1, 2025), the Utah Court of Appeals disagreed. In accordance with a Utah Supreme Court decision, benefits that may be used to offset compensation must be those which “affect the land itself,” and increase “the…

Continue Reading Friends Without Special Benefits: Direct Access To Interstate Is General Benefit

There’s a lot of detailed legal analysis in the Pennsylvania Supreme Court (Eastern District)’s opinion in Pignetti v. Pennsylvania, No. J-11A-2024 (Apr. 25, 2025). But in the end it boiled down to a simple concept.

The case was about what property constituted the larger parcel. As the court put it, where “the condemnation of one parcel may affect the use and the value of another to such an extent that the two parcels should be valued as one.” Slip op. at 1-2 (footnote omitted). In Pennsylvania, they apparently call this “plottage,” but the analysis is familiar. (Think “three unities” — or some combination thereof.)

The Pennsylvania Legislature codified what in a lot of other jurisdictions is a common law doctrine. The statute provides:

Where all or a part of several contiguous tracts in substantially identical ownership is condemned or a part of several noncontiguous tracts in substantially identical ownership…

Continue Reading Pennsylvania: “Used Together” In Larger Parcel Statute Means “One Purpose”