There's been a few decisions recently about entry to private property in anticipation of condemnation, the most prominent being a ruling from the California Supreme Court that entries which exceed relatively minor inconveniences are takings; the court "reformed" the entry statute to import some of the protections of the eminent domain process, but otherwise gave condemnors a lot of leeway. Also, pipline cases around the country have thrust the ability of potential condemnors to come onto property into the public eye.
This opinion from the Supreme Court of Appeals of West Virginia is the latest on that topic. The court held that a precondemnation entry by a pipeline company to do a survey would not be for a public use, and thus the pipeline company did not have the power of eminent domain. Under West Virginia law, a private company may exercise the power only when the taking would be for a public use. The court rejected the pipeline's argument that it didn't need to show the (eventual) taking would be for a public use now, because they were only at the survey stage.
The court tracked the history of public use in West Virginia, and held that because the pipeline would not benefit West Virginia customers, it wasn't for public use:
MVP has been unable to identify even a single West Virginia consumer, or a West Virginia natural gas producer who is not affiliated with MVP, who will derive a benefit from MVP’s pipeline. As noted above, the circuit court expressly found that MVP “is not regulated as a utility by any West Virginia agency.”8 MVP is a private company seeking to survey property for the ultimate purpose of exercising the right of eminent domain.
Slip op. at 22-23.
An opinion well worth reading in its entirety (along with the concurring and dissenting opinons). More here on the decision also.
Mountain Valley Pipeline, LLC v. McCurdy, No. 15 0919 (W. Va. Nov. 15, 2016)
