Transmission Lines Easements and Personal Property - Research Paper Example

? EMINENT DOMAIN – AN ANALYSIS “Eminent Domain” can be defined as an ity that a government may exercise over all of its land within its domain or territory. Only for a public purpose, the eminent domain and the law relating to the compulsory acquisition of land can be employed by the government. There are many controversies and debates against eminent domain as it results in mass evacuation or displacement for large or medium infrastructure projects like wind farm which have placed a severe strain on the acknowledgement of the power of eminent domain. As early as in 1625, Hugo Grotius has defined eminent domain as “The property under question is under the eminent domain of the government or state so that the government or anybody who functions for such a state may employ or even destroy or alienate such property, not only in the event of an extreme situation but also for the needs of public purpose or utility, to which ends those who have made civil society must have presumed to have meant that private purpose or ends should give away. However, it is to be noted that the government or state must be liable to make good the loss to the owner’s of the property which has been taken by the government.” Both federal and state governments have the privilege to take away the private property for public use with payment of just compensation to affected landowners. The Fifth Amendment to the American Constitution sets the tone for these seizures, and this power is widely known as eminent domain. In the historical decision in Kelo v. City of New London , U.S Supreme Court held that seizing the private property of land owners for economic development was entitled as a public use within the context of the Fifth Amendment. The above decision by U.S government has enlarged the both the federal and state government’s authority of eminent domain to unmatched areas. In Berman v Parker, in 1954, the U.S Supreme Court decided unanimously that the Fifth Amendment authorized governments to seize the private properties not for public use but for the public purpose. (scholarsandrogues.wordpress.com). U.S Supreme Court held in Kelo v. City of New London1, that the employment of eminent domain to convey rights of a land from one private owner to another one for the furtherance of the economic development. The appeal to U.S Supreme Court happened from the fact of censure by New London, Connecticut of privately owned real estate so that it could be employed as part of a widespread redevelopment scheme. In a 5-4 decision, U.S Supreme Court held that general advantages a community savored from economic development qualified such redevelopment schemes as an allowable “ public usage” under the Takings Clause of the Fifth Amendment. The Supreme Court verdict in Kelo was widely condemned by American general public and the politicians. American public is of the view that decision in Kelo is a gross infringement of property rights. They also allege that the Taking Clause of the Fifth Amendment was against general public’s interest as it would be beneficial to giant business houses at the loss of local communities and individual land owners. Further, some critics allege that Kelo decision has removed the constitution protection offered by Federal government to individual property rights and placed the issue back to the state governments to fix on if any protection remains on any state-level. In the above case , the Supreme Court deliberated whether the “ public use “ requirement of the Fifth Amendment is satisfied in city’s decision to attach the private properties exclusively for the purpose of economic development. The City of New London, Connecticut wished to enlarge for the stated objectives of “revitalizing a distressed city by economically including its waterfront and downtown areas by taking over Kelo, which involved 90 acres of land owned by private owners. As per City, the development would foster in excess of 1000 jobs and an increase in taxes and other income. From the willing sellers, the City acquired their land and started to initiate condemnation proceedings against those who declined to dispose off their lands. The affected unyielding landowners filed a suit claiming that government seizure of their land infringed the “public use “restraint of the Taking Clause in the Fifth Amendment. U.S Supreme Court viewed that a “public purpose” with establishing new jobs, especially in a depressed city could come under the Fifth Amendment. It is to be noted that Verdict in Kelo case is the first and foremost U.S Supreme Court verdict for authorising taking of land by eminent domain exclusively for economic growth objective. The Kelo case has paved the way for the State and federal government to declare an area as “blighted” before it can be annexed for the purpose of the economic development scheme as long as the scheme is deliberative and a clear objective is made that the taking is for the public purpose. In her dissenting note, Judge Sandra Day O’Connor observed that Kelo’s decision would pave a way for to replace a small motel with a five-star hotel, a small home with a huge shopping mall and any farm with a manufacturing unit. As an objection to Kelo’s verdict , the America’s ninth giant bank , the North Carolina based BB&T announced that it will reject to lend money to commercial developers who intend to construct on land snatched from gullible private citizens as a protestation against the government’s authority to make a compulsory acquisition of land in the name of public use. In USA, the statute defines electric and gas corporations as corporations that engage in generating and supplying electricity for public use. Hence, it seems that a private wind developer could fall under the definition of Electric Corporation and hence, a private wind power producer will have the power of eminent domain. Once if these private wind farm developers are able to sell electricity to a power purchaser, they can approach the energy commission within a short span of time and with a little bit of paper work, they will acquire the power of eminent domain and will be able to acquire the adjacent landowner’s property with power lines with trenches even without any public hearing. (Savewestenergy. com). Right-of-way, in case of transmission lines is poignantly more associated since transmission lines occupy a vast portion of land around and beneath them and also oblige strict limitations like for what purpose land could be employed. Right-of-way may occupy about 75 to 175 feet length of land depending upon the voltage of the transmission line and the supporting tower’s height. For multiple transmission lines, rights-of –way is generally larger and wider. For servicing, safety and reliability, the presence of trees or structures are strictly restricted near the transmission lines. For instance, in 2003, there was a devastating failure of the electrical infrastructure supporting transmission lines in the northeast area of USA. This was mainly due to failure of mechanical equipment from the vegetation in the right-of-way. It is to be noted that this kind of failures is not fully avoidable and hence, growing of trees in close proximity to transmission lines is prohibited. (scholarsandrogues.wordpress.com). In USA, both state governments and federal government have the easement rights for transmission lines and will have perpetual rights to keep the right-of-way which is clear from trees so that it can erect, build, safeguard, maintain, operate, re-erect or rebuild transmission lines. Further, landowners are having responsibility for adhering with the county, city and sub-divisional rules as regards to maintenance of their land, including the rights-of-way in that land. Thus, government is having a perpetual privilege under majority of easement documents to have clear rights-of-way and to maintain them from brush, trees, structures, buildings and free from fire hazards. The easement rights were obtained only to permit the erection, maintenance, operation and restructuring of transmission lines. Kay Bailey Hutchison supported the Proposition 11 which will address the infringement of eminent domain as held in Kelo decision by U.S Supreme Court in 2005. According to Hutchison, private property rights are fundamental rights, and both US state governments and federal government should stop in taking away the private property from individual owners and pass it on to another for his economic or personal gain. The proposition 11 in Texas is aimed to restrict the government’s authority of eminent domain and offer the private property rights' teeth by implementing protection in the Texas constitution. Hutchison is committed to fight for this issue as she is the governor of Texas and had stated that she would have it as precedence in the 2011 legislative session. As per Hutchison, Proposition 11 is a major leap towards safeguarding the private property rights and is the start of Texas badly required reformation of the eminent domain process. (County 2009). Les us analyse eminent domain by analysing various case laws on the subject: In Kauer v. Wisconsin Department of Transportation, a land was acquired for the construction of a bye-pass road. The plaintiff argued that condemnation was unjust as the envisaged roundabout had a hazardous road design. The Court of Appeal held that road design by experts was envisaged with road safety in mind and upheld the trial court’s approving the eminent domain proceedings. (Ohm 2011). Fields v. American Transmission Co is a case which involves a clash relating to the valuations of property, which had been taken by the defendant for their new high-voltage transmission line. The plaintiff argued that whether a jury has to take into account the pre-existing easements' rights when deciding about the quantum of just compensation? It was held by the Court of Appeals in affirmative and elucidated that the jury is expected to find both the after and before values of the whole property to calculate the just compensation. In 260 North 12th Street, L.L.C. v. State of Wisconsin Department of Transportation, a jury awarded a just compensation of $1,348,000 award for taking away a property for a highway project. However, the plaintiff appealed against that trial court should not have permitted evidence regarding environmental contamination of the property acquired and associated costs to repair such property. However, the Wisconsin Court of Appeals not agreed with this and held that, in deciding just compensation, the trial court is justified in taking into the account of evidence of environmental contamination and the associated repairing cost. (Ohm 2011). In State v. Kingman2, State of Washington tried to take away the Kingman’s land for a public use namely, “to maintain a beautiful bird’s view of Lake Chelan and foothills near to it. Without making any conclusion of law or finding of fact, the trial court denied the petition. The main question in this case law is whether a verdict without conclusion of law or findings of fact has to be vacated or not. It was held that a verdict given in a case where findings are needed, without discovery of reality having been made is relating to a motion to vacate well within the permitted time for initiation of appeal. However, there would nothing which the appellate could necessarily evaluate if any appeal is made. (www.delmarlearning.com). A Nebraska based gas company has received the ascent from a federal judge to condemn in excess of 9100 acres of land in south –central Kansas to have gas migrating from a subversive storage facility. Northern Natural Gas Co of Omaha is trying to employ eminent domain to annex the formation beneath possessions in Kingman, Pratt and Reno counties from reluctant owners of land. Earlier, the Federal Energy Regulatory Commission (FERC) accorded the company to enlarge its Cunningham Subversive Field in Kansas in excess of 12,000 acres. About 173 land owners who have an interest in 40 tracts of land filed a case against company’s eminent domain. The court decision is considered to be a recent impediment to landowners who have recently succeeded a decision in their favour in the district court on a different facet of the case. (The Associated Press 2011). Conclusions It is justified that if a government employs eminent domain as long as the property owners’ are properly compensated and how private utility companies are being empowered the government sovereignty of the exercising of eminent domain in taking over lands from owners? (www.tva.gov/power/rightofway). Majority of land owners has a transmission line easement on their lands coming through to move the electricity generated from the wind-towers to their destinations. The wind energy company wants the easement to be signed is a thirty year contract with a meager one-time payment of $3800. The worst part is that the land owners have not seen anything in writing yet but wind energy producers have already threatened landowners with Eminent Domain. It is horrifying to narrate what type of stress the land owners from Kingman, Pratt and Reno, who might have sustained the individual loss in moving forward with technology. Further, the landowners have to their liability up to $1,000,000 for their lines, which increase their annual insurance premiums significantly. Further, these landowners also have to relocate their cow /calf operation due to the fact that the EMF's that these mega transmission line emissions have the potential to damage the unborn calf. All studies with the EMF's have been inconclusive but there is a reason to keep testing and land owners are not willing to put our cattle at risk if they can prevent it. The Supreme Court verdict in Kelo was widely condemned by American general public and the politicians. American public are of the view that decision in Kelo is a gross infringement of property rights. They also allege that the Taking Clause of the Fifth Amendment was against general public’s interest as it would be beneficial to giant business houses at the loss of local communities and individual land owners. Further, some critics allege that Kelo decision has removed the constitution protection offered by Federal government to individual property rights and placed the issue back to the state governments to fix on if any protection remains on any state-level. Judge Sandra Day O’Connor, in her dissenting note, has rightly observed that Kelo’s decision would pave a way for to replace a small motel with a five-star hotel, a small home with a huge shopping mall and any farm with a manufacturing unit. List of References County Nueces. (October 2009). Hutchison Campaigns For Eminent Domain Reform. [online] available from [accessed on 4 May 2011]. Llbguides.law.gsu.edu. [online] available from http://libguides.law.gsu.edu/eminentdomainafterkelo> [accessed on 4 May 2011]. Ohm JD Brian W. (2011). Planning Case Law Update. [online] available from [accessed on 4 May 2011]. scholarsandrogues.wordpress.com [online] available from [accessed on 4 May 2011]. www.savewesternny.org[online] available from < http://www.savewesternny.org/docs/eminentdomain.html> [accessed on 4 May 2011]. www.tva.gov. [online] available from [accessed on 4 May 2011]. Read More