Daily Development for Friday, July 30, 1999

Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri

EMINENT DOMAIN: A township does not have the express or implied = statutory authority to condemn a municipality's property that is devoted to public use on the ground that it is private property. A township does not have an implied statutory right to = condemn property of a municipality, based on the consistent use doctrine, when the township's proposed use is wholly inconsistent with the municipality's public use of the property. =20

Town of Fayal v. City of Eveleth, 587 N.W.2d 524 (Minn. App. 1999). =20 =20 After a dispute with the City of Eveleth over water rates, hydrant = rental fees and maintenance issues, Fayal Township petitioned for condemnation of the city's water lines, hydrants, and appurtenant easements lying within the township's borders to acquire complete ownership of the water system located within the township's borders. The trial court = held that because the city did not use the water lines located in the township for its own residents = and the township had revoked its consent for the city to serve its residents, the city held the = water lines in a proprietary capacity only , and the lines were therefore, private property rather than = property devoted to a public use. =20

The Minnesota Court of Appeals rejected this conclusion and found that = the city's water distribution, even if held in a proprietary capacity, constituted a = public use by a public body. It held that a governmental entity to whom the right of eminent domain has been delegated may not, as a general rule, condemn public property or property devoted to a = public use unless such authority is expressly or impliedly granted by statute. It = acknowledged that while the township's grant of eminent domain under Minn. Stat. =A7 368.01, subd. 27, clearly permits taking of private property, it is silent regarding authority to take public property. =20

The Court of Appeals did note that the grant of eminent domain power = under Minn. Stat. =A7 365.02 is broader, and not expressly limited to private property. = However, the court held that a government entity to whom the right of eminent domain has been = delegated may nevertheless only condemn public property or property already devoted to public use = if the authority is expressly or impliedly granted by statute.

The Court of Appeals noted that legislative power to condemn public = land under a general grant of eminent domain may be implied when the condemnee has not put its = land to public use.=20 However, the court held that when the land is already dedicated by the state or one of its governmental agencies for a specific public use and is actually used = for the specified purpose, mere general authority to condemn is insufficient to interfere with authorized public uses. The court noted that generally, property already devoted to a public use = cannot be condemned for an identical use in another party's hands. In such an instance, the = property merely takes new ownership without any new benefit inuring to the public. The court = noted that the consistent use doctrine contemplated coexistence of the prior and proposed uses and = ruled that Fayal's proposed use was necessarily inconsistent with Eveleth's use because it was identical to the one that Eveleth already enjoyed.

Comment: This is a "Friday DD." The editor isn't certain how much use = it is to any DIRT readers, but the little dispute between these two Minnesota = municipalities is fun to watch. Note that the upshot, apparently, is that the Eveleth owns all these water = pipes that it has no use for, and Fayal, if it wishes to provide water service, is going to have to = build its own water system from scratch, condemning even more property. A clumsy result, but the editor is uncertain whether he'd decide the thing differently. Permitting "dueling condemnations" seems certain to lead to a chaotic situation. =20

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last six years, these Reports have been collated, updated, indexed and bound into an Annual Survey of Developments in Real Estate Law, volumes 1-6, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Maria Tabor at the ABA. (312) 988 5590 or mtabor@staff.abanet.org

Items reported here and in the ABA publications are for general information purposes only and should not be relied upon in the course of representation or in the forming of decisions in legal matters. The same is true of all commentary provided by contributors to the DIRT list. Accuracy of data and opinions expressed are the sole responsibility of the DIRT editor and are in no sense the publication of the ABA.=20