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Eminent domain, equity and efficiency, and subjective values

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2 Responses

  1. adam says:

    I made the suggestion in the comments to Ilya’s post that this seems to present a unique situation in that the land has a great deal of value for the government, but they can’t use that land effectively without the to-be-condemned land.

    That being the case, I think you could make an argument that the government shouldn’t be considered one of the “private parties” here for the purposes of computing FMV — since they’d have to buy the land if they couldn’t use eminent domain — and thus value the land at a premium based on its use as a military training grounds and the amount of value that it adds to the government’s current training grounds, rather than just its use as ranchland. I don’t see why “subjective value” has to enter into it at all.

  2. Alan says:

    When we look at this question in the context of eminent domain law, what we are really talking about is the necessity aspect. As pointed out in the underlying blog post, the purported use is unquestionably a public use. The rest of the argument boils down to whether taking this particular piece of property is the most efficient and equitable option.

    That question is by its nature legislative and, accordingly, the issue of necessity has always been treated with deference by the Courts. The condemning authority decides what property it wants to take and the Courts are poorly situation to step in and tell it no, that it should have taken other property instead. Thus, Courts will only deny a taking on the basis of lack of necessity where there is some showing of fraud or bad faith. The landowners only defense is generally political.

    Regarding the subjective value of the property, I cannot see how the Constitution provides for that. In any event, landowners generally receive more pre-taking in land subject to condemnation than they can sell the property for in the marketplace. A condemning authority has incentive to pay more to avoid litigation.

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