Before you get too excited by the headline and think this is a Kelo issue, a word of caution: this short one from the Oklahoma Supreme Court is on a really niche topic: private condemnations that permit the private owner of property to institute a private-benefit taking to force a neighbor to sell an interest in its property if doing so is necessary.
Childers v. Arrowood, No. 119815 (June 20, 2023), involved whether it is proper under Oklahoma's private taking statute for the owner of property that isn't landlocked and can physically access the outside world but has no utility service, to condemn an easement over an adjacent parcel to obtain such service.
Until 2008, Childers' property was landlocked. But their predecessor-in-title secured an express access easement from the owner of the neighboring property, solving that problem. But then new owners bought the dominant parcel, and want to live there. Yes, they can physically access the property, but the utility company told them that it can't make a utility connection unless the owners also possess an easement for utility access.
The owners filed a statutory private eminent domain lawsuit against the owners of the servient parcel to secure utility access. Those owners objected: the statute is reserved for "private ways of necessity" and since you already have physical access and your parcel isn't landlocked, you can't use the statute to forcibly take a utility easement. Trial court approved the taking and the private condemnees appealed.
The Oklahoma Supreme Court OK'd the taking. The purpose of these private ways of necessity takings is to prevent properties from being landlocked and to prevent those properties from being rendered useless: "What the common law easement by necessity and the statutory way of necessity share in common is their underlying purpose -- to prevent property from being land-locked and rendered useless." Slip op. at 5 (footnote omitted).
That being said, do the common law cause of action and the statutory way of necessity have the same elements of proof? Nope, "the Childers were not required to show the elements of a common law easement by necessity to acquire the easement." Slip op. at 6. The servient owners/condemnees countered: even these private takings require a public purpose. Slip op. at 6-7 (there's your Kelo goodness).
The court rejected the argument. The Oklahoma Constitution expressly exempts private ways of necessity takings from the public use requirement. Slip op. at 7. But the court doesn't address the property owners' other argument: that the Fifth and Fourteenth Amendments require all takings to have a public use. The court notes the argument was made. But then, silence from the court. We're not sure why.
After all, this seems like a worthy argument. At least one court has though so. See "Pa. Supreme Court: If It Walks Like A Private Taking And Quacks Like A Private Taking, It Might Be A Private Taking."
The remainder of the opinion is devoted to the court explaining why the private condemnor could take a neighbor's property to secure utility access. The statute is designed to help owners make use of their property, not simply to gain physical access. And if that means taking a utility easement from your neighbors, the statute allows it.
Childers v. Arrowood, No. 119815 (OK June 20, 2023)
