Validity of uncertain taking
The DM&E’s new owner, the Canadian Pacific Railroad, has no immediate plans to build the line. The railroad has dropped lawsuits in Wyoming seeking condemnation authority there.
Delaney indicated he is inclined to remand the appeal to the Transportation Commission.
If the land isn’t needed for public purpose in the foreseeable future, Delaney said it raises the question of the necessity for condemnation.
“That must be considered by the board before me,” Delaney said.
The article raises two interesting condemnation issues.
First, is a delay or uncertain future completion of the project mean there is not necessity? States have different rules on whether a taking is appropriate when there is a time delay or project uncertainty. Some States reject the validity of the acquisition, others maintain if the proposed use is a public use, that is enough.
The second is the deference the Federal Court will give to the state agency making the original eminent domain necessity finding of a public use. There may be situations where the courts may find an action appropriate or inappropriate without returning the case to the local agency for a determination of the validity of the eminent domain action. This may be such a situation.
