A Wyoming Lando

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13 Δεκ 2013 (πριν από 3 χρόνια και 8 μήνες)

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University of Wyoming


Rural Law Center Legislative Research Service






A Wyoming Lando
wner’s Guide to Eminent Domain





In conjunction with

1




A Wyoming Land

O
wner’s Guide to Eminent Domain

Table of Contents




INTRODUCTION

................................
................................
................................
..

2

EMINENT DOMAIN

IN GENERAL

................................
................................
..........

2

W
HAT IS EMINENT DOMAI
N
?

................................
................................
................................
....

2

W
HAT IS CONDEMNATION
?

................................
................................
................................
......

2

W
HO CAN CONDEMN AND F
OR WHAT PURPOSES
?

................................
................................
.....

2

W
HAT PROPERTY MAY BE
TAKEN THROUGH EMINEN
T DOMAIN
?

................................
...............

3

W
HAT FACTS MUST BE FO
UND BEFORE CONDEMNAT
ION CAN OCCUR
?

................................
......

3

THE EMINENT DOMAIN P
ROCESS

................................
................................
........

4

T
HE
P
RELIMI
NARY
P
ROCESS

................................
................................
................................
....

4

S
URVEYING THE
L
AND

................................
................................
................................
.............

4

N
EGOTIATIONS

................................
................................
................................
........................

4

H
EARING
,

C
OMPENSATION AND
J
UDGMENT

................................
................................
............

5

The Informal Procedure

................................
................................
................................
....................

6

The Formal Procedure

................................
................................
................................
......................

6

C
OMPENSATION

................................
................................
................................
.......................

7

How is compensation determined?

................................
................................
................................
......

7

When and how is the payment of compensation made?

................................
................................
........

7

C
ONDEMNOR

S
R
ESPONSIBILITIES

................................
................................
............................

8

Reclamation and Restoration

................................
................................
................................
.............

8

Damages

................................
................................
................................
................................
..........

8

A
BANDONMENT OF
U
SE

................................
................................
................................
...........

8

Conclusion
…………………………………………………………………………………..…………….8



2


Eminent Domain in General

Eminent domain is the process by which the government may
take
private property for a
public
purpose, provided the government provides just compensation. The United States
Constitution grants this power to both federal and state government. The Fifth Amendment
allows for the taking of private property for public use as long as just compensation is

given
,

and the Fourteenth Amendment prohibits the taking of property without due process of law.


Wyoming
’s

State Constitution
similarly
allows for the taking of private property for public
or private use when just compensation is provided.
1

Within this
framework, state
governments can grant the power of eminent domain to public and private entities.

What is condemnation?

Condemnation is the process through which public or government
-
authorized private
entities exercise the power to take private property

through eminent domain. T
o “condemn”
means to take property under the power of eminent domain. A “condemnee” is one who
owns property that might be condemned and a “condemnor” is the person or entity
seeking

condemn
ation of

that property.

Who can condemn
and f
or what
purposes
?

Both public and private entities may condemn property in Wyoming.
Any public entity has
the right to exercise eminent domain. A public entity includes the state of Wyoming and its
agencies, municipalities, counties, school districts,

political subdivisions and special
districts.
2



Private property can be taken for a wide variety of uses as long as public interest and
necessity require it, the use is planned or located in a way that is most compatible with the
greatest public good and

least private injury and the property is necessary for the project.
3


The Wyoming Constitution also grants public and private entities the power to condemn for
agricultural, mining, milling, domestic or sanitary purposes. In such cases,
it
is not
necessar
y to prove that the condemnation is in the public interest.
4


The state may also grant the right to condemn to private
entit
ies.
State law explicitly grants
the right
to railroads, p
etroleum and pipeline companies.
5

State law also grants a broad right
of c
ondemnation to “any person, association, company or corporation authorized to do
business” in the state for the purpose of establishing a right of way over, across or on as
much private land as is necessary for the location, construction, maintenance and u
se of:





1

Wyo. Const. art. I, § 32, 33
. For the Wyoming Constitution and Statutes see the Wyoming State
Legislature website at
http://legisweb.state.wy.us/LSOWEB/wyStatutes.aspx
. The Wyoming
Eminent Domain Act is found under Title 1, Chapter 26.

2

Wyo. Stat. Ann § 1
-
26
-
502 and 1
-
26
-
801
-
809.

3

Wyo. Stat. Ann. § 1
-
26
-
504.

4

Wyo. Const. art. I, § 32.

5

Wyo. Stat. Ann §

1
-
26
-
810

through
-
12, 814.

3




Reservoirs
, Flumes, Drains, and Ditches



Underground water pipelines



Pumping stations



Electric power transmission lines



Railroad track
s



Tramways



Milling



Some t
ransportation
needs
of coal
,

oil
,

and gas



In sum, the power of eminent domain under Wyoming law is fairly broad and is granted to
both
private

and
public

entities.
6

What property may be taken through eminent domain?

A court may gr
ant

a public entity an easement on private property or, if necessary for the
purpose for which the
land was condemned, full title.
In cases
involving a private

entity, the
court may only grant an easement.
7

That is, the entity cannot obtain the right to bu
y
property outright. It may only obtain the right to use a portion of the property in a limited
way, for example, to lay underground power lines or to build a road.


What facts must be found before condemnation

can occur
?

Before a court may grant an entit
y the right to condemn private property, the condemnor
must show each of the following:




The public interest and necessity require the project or the use of eminent domain is
authorized by the Wyoming Constitution
.



The project is planned or located in the
manner that will be most compatible with the
greatest public good and least private entry
.



The property sought to be acquired is necessary for the project.
8


The condemnor must also show that it made efforts at good faith negotiations and complied
with
condemnation proceedings as required by state law.

The Eminent D
omain Process

The Preliminary Process

In the case of a public entity seeking to condemn, t
he process begins when
that

entity

determines
there is a likelihood of locating a project on private
property
. At that point
,
the
entity

must
let the landowner know
, in writing,

of this possibility
, as well as the public



6

Wyo. Stat. Ann. § 1
-
26
-
815.

7

Wyo. Stat. Ann. § 1
-
26
-
514.

8

Wyo. Stat. Ann. § 1
-
26
-
504.

4


interest and necessity

in using the property
.
The owner
then
has the right to discuss the
project with representatives of the public ent
ity.

9


In the case of a private entity seeking to condemn, the process begins with reasonable and
diligent efforts by that entity to acquire the property through good faith negotiation outside
of the eminent domain process.
10

Negotiations

Wyoming law requi
res that a condemnor make an effort to negotiate with a landowner to
purchase the property in question before beginning a condemnation action.
11

Efforts at
negotiation must be reasonable, diligent and done in good faith.
12

State law requires that the
condem
nor, in the negotiation process, provide to the landowner written notice, including:




A description of the property to be condemned



A general idea of the proposed project



An offer to tour the property and discuss the issues



An estimate of the fair marke
t value of the property and a basis for the estimate



A discussion regarding the reclamation plan



An initial offer for the property or right of way



Notice that the party who’s property is being condemned has sixty
-
five days to accept
or deny the offer



An ex
planation that, if the offer is not accepted or denied within sixty
-
five days, the
party forfeits the ability to claim the negotiations were not in good faith



Notice that formal legal proceedings may be initiated if negotiations fail



An explanation that t
he party who’s property is being condemned has the right to
seek legal or other advice during the negotiations


Negotiations also require the condemnor to respond in writing to a counteroffer or any
other responses made by the landowner. If there is a
dispute or disagreement during the
negotiation process, parties may use mediation, arbitration or dispute resolution through the
Wyoming agriculture and natural resources mediation.
13


The party seeking to condemn may seek an exception to the negotiation st
andard if the
landowner waives their right to negotiations, the owner of the property is unknown and
cannot be found or the condemnation is an emergency effecting public health.
14


An effort at good faith negotiations must be made. However, if these negotia
tions fail, the
condemnor may then file a complaint with a court
to
begin a condemnation proceeding.
During the proceeding, a judge will determine whether or not the condemner’s negotiation



9

Wyo. Stat. Ann. § 1
-
26
-
504.

10

Wyo. Stat. An. § 1
-
26
-
509 through 510.

11

Wyo. Stat. Ann. §1
-
26
-
509
-
11.

12

Wyo. Stat. Ann. § 1
-
26
-
509(a).

13

Wyo. Stat. Ann. § 1
-
26
-
509(h).

14

Wyo. Stat. Ann. § 1
-
26
-
511

5


efforts have been sufficient.
15

If a landowner believes that the ne
gotiation did not meet
Wyoming’s standard, or if they wish to contest the condemnation, the landowner must file
an answer to the complaint and appear at the hearing.

Surveying the Land

Before an entity begins an action for condemnation, they will generall
y seek more
information about the property to determine if it is suitable for
the intended
use. Wyoming
law allows a condemnor to enter the property of another for the purpose of making surveys,
examinations, photographs, tests, soundings, borings and samp
lings, or engage in other
activities for the purpose of appraising.
16


Before the condemnor can enter private property, however, they must give notice to the
landowner specifying the kind of tests and surveys to be made and the proposed use for the
property
. The landowner then has fifteen days to give written permission. Furthermore, any
entry made by the condemnor must be made during reasonable hours and any surveys or
tests must be made peaceably and without inflicting substantial injury to land, crops,
im
provements, livestock or current business operations. The condemnor is responsible for
any damage done during the process.
17


If the landowner
obstructs or denies

the request for entry, the condemnor may obtain from a
judge an order permitting entry.
18

In it
s order, the court must describe the purpose of the
entry, the nature and scope of activities to be made

on the property,
and the time, place and
manner of entry and activities.
19

The judge must also require the condemnor to compensate
the owner for damages

to the property or for substantial interference with possession or use.
The condemnor must make a cash deposit before entry

is permitted.
20

Hearing
, Compensation
,

and Judgment

If negotiations
between the condemnor and landowner

fail,
the condemnor will likely take
action to begin a condemnation proceeding. This begins with the filing of a complaint or
written notice with
a

court.

The court must then determine, first, whether or not
the
requirements for condemnation have

been met. If th
ey have, the court then determines
compensation, either formally or informally.

The
Informal Procedure

An informal
process to determine compensation is generally simpler and quicker, and is
heard before a judge only. It

is permitted if the amount of compen
sation demanded by the
condemnee is less than $20,000, or if the difference between the condemnor’s offer and
condemnee’s demand is less than $5,000.
21





15

Wyo. R. Civ. P. 71.1(e)(1)(A).

16

Wyo. Stat. Ann. § 1
-
26
-
506.

17

Wyo. Stat. Ann. § 1
-
26
-
506.

18

Wyo. Stat. Ann. § 1
-
26
-
507(a).

19

Wyo. Stat. Ann. § 1
-
26
-
507(b).

20

Wyo. Stat. Ann. § 1
-
26
-
507(c).


21

Wyo. R. Civ. P.71.1(c)(3)

6



To begin this process, the condemnor is required to file a written request that the court
determine the

amount of compensation to be paid for the property. The request must
identify the property and set forth both the amount of the condemnor’s most recent offer
and the condemnee’s latest d
emand for compensation.


If the judge grants the request,

the

condemn
or and landowner

are invited to present
eviden
ce in support of their positions
.
Following this presentation
,
the judge issues a
decision regarding compensation.
22



If e
ither party

is not satisfied with the judgment, they

may file a written demand for a

for
mal
trial
within thirty days following the decision.

If the condemnor files a demand for a formal
trial and does not receive a more favorable decision in that trial, the court may require the
condemnor to pay the condemnee’s

legal expenses accruing after the demand was filed.
23

The
Formal Procedure

If

the amount

of

compensation

in question

is
greater

than $20,000 or if the difference
between the offer and demand is more than $5
,
000, a formal procedure is required.
24

To
begin th
is process, the condemnor
must

file a complaint with the court
,

which must include
the authority for the taking, the use for the property to be taken, necessity for the taking, a
description of the property sufficient for its identification and the interes
ts to be acquired.
The condemnor must al
so show that it made efforts to negotiate with the landowner.
25


In response, the landowner may file an answer contesting the condemnor’s right or necessity
to take the property
. If the landowner would prefer not to
contest, they may file a
description of the property to facilitate compensation hearings.
26


The court will

then

hear arguments from both the condemnor and condemnee, and, if
condemnation is found to be appropriate, the
court

will then determine

compensatio
n.
To
determine compensation,
the judge must appoint three disinterested appraisers

to assess the
property
.
27

Based on the findings of the appraisers, the court
will issue an order for
compensation. Once proof of compensation is provided to the court, the c
ondemnor may
ta
ke possession of the property
.
28


If either party is not satisfied with the amount of compensation awarded, they may file a
written demand for a trial by jury on the issue of compensation within thirty days of the
decision.
29




22

Wyo. Stat. Ann. 1
-
26
-
601 through
-
604.

23

Wyo. Stat. Ann. 1
-
26
-
604(b).

24

Wyo. R. Civ. P. 71.1 (c)(3)

25

Wyo. R. Civ. P. 71.1(c)(1)

26

Wyo. R. Civ. P. 71.1(d)(3)

27

Wyo. R. Civ. P. 71.1(e)(2)(D).

28

Wyo. R. Civ. P. 71.1(i)(3).

29

Wyo. R. Civ. P. 71.1(j).

7


Compensation

How
is compensation determined?

Compensation

to a landowner
whose

land is condemned
is
its fair market value on the day
the condemnation action was started.
30

The fair market value is the price that would be
agreed to by an informed seller who is willing but no
t obligated to sell and an informed
buyer who is willing but not obligated to buy.
31

Other factors a
court

may use to determine
the fair market value include
the value as determined by a certified appraiser

and

the price
paid for other comparable easements
or leases of similar size, type and locatio
n.
32


Compensation for a partial taking is

determined by

the value of the property rights taken
,

or
the

difference between the fair market values right before the taking an
d directly following
the taking, whichever

is greatest.
33

Compensation may also be rewarded for crops growing
on the property
on the day the property is valued.
34


When and how is the payment of compensation made?

When a private

entity begins the process for condemnation, they must deposit with the
court an amount equal to the condemnor’s last offer for the property
prior to commencing
the action.
35

The court may

not require a public entity to make a deposit if the entity is
finan
cially or legally unable to do so.
36



If the condemnee withdraws any portion of the deposit prior to judgment, he waives all
defenses to the action except the right to contest the amount to be awarded and the
condemnor is entitled to immediate possession o
f the property.
37


After a
court issues a decision regarding the amount of compensation
, a condemnor must
then either appeal

that decision

or compensate the landowner. Once compensation is made,
and proof of compensation is provided to the court, the condem
nor may take possession of
the property.
38

Condemnor’s Responsibilities

Reclamation and Restoration

A condemnor who acquires through condemnation an easement on private property is
responsible for reclamation on that land and for restorations of the land. T
he property must
be returned, to a reasonable extent, to the same condition it was in prior to the



30

Wyo. Stat. Ann. § 1
-
26
-
701.

31

Wyo. Stat. Ann. § 1
-
26
-
704(a)(i).

32

Wyo. Stat. Ann. § 1
-
26
-
704(iii).

33

Wyo. Stat. Ann. § 1
-
26
-
702(b).

34

Wyo. Stat. Ann. § 1
-
26
-
709(a).

35

Wyo. Stat. Ann. § 1
-
26
-
513(a).

36

Wyo. Stat. ann. § 1
-
26
-
513(b)
.

37

Wyo. Stat. Ann § 1
-
26
-
513(c).

38

Wyo. R. Civ. P. 71.1(i)(3).

8


condemnation. Restoration and reclamation are to begin as soon as is reasonably possible
after project construction is completed.
39

Damages

If a condemnor has

an easement, responsibilities of the condemnor include any damages
caused prior to condemnation, by construction of the project, during the use of the property
and removal of any facilities or improvements on the property once an easement ends.
40

Abandonme
nt of Use

An easement acquired under condemnation
ends under one of three circumstances. First,
the easement ends

if
it has

been
abandoned
. To prove abandonment, a condemnee must
prove a condemnor’s non
-
use plus its intent to abandon. Second, an easement e
nds if it is
not used for ten years
. Finally, an easement ends

if the condemnor
transfer
s or attempts

to

transfer the easement to a use with which the entity could not have originally condemned
the property or to a use that will create new damages to the l
andowner.
41

Conclusion

It is the intention of the Rural Law Center that this guide be used as a stepping stone to
better understand Wyoming’s eminent domain laws. This guide should not be used as a
legal reference, but rather as an educational too
l
.
Concerned landowners should refer to the
experienced attorney of their choosing.




39

Wyo. Stat. Ann. § 1
-
26
-
714(a)
-
(b).

40

Wyo. Stat. Ann. § 1
-
26
-
506
-
07 and 714(c)

41

Wyo. Stat. Ann. § 1
-
26
-
515.