Have you ever wondered how big a hammer the government’s power of eminent domain is? We know it’s big enough that the government can compel the involuntary conveyance of property needed for public use when a voluntary conveyance is not forthcoming. But should it be so big that the government could compel the involuntary conveyance of all of one’s property when a voluntary conveyance of a part of the property needed for public use is not forthcoming? If so, that is a very big hammer.
Before Harris County filed a statutory condemnation case to acquire Farabi’s whole property, the County proposed to acquire only a trail easement along the front of the property. According to the County’s manager for in-house construction projects, if Farabi had voluntarily conveyed the trail easement to the County, the County would not have condemned Farabi’s whole property. In fact, he acknowledged that the only reason the County condemned Farabi’s whole property, as opposed to the easement required to complete the trail project, was because the County already had to go to condemnation anyway:
Q. All right. Is there — other than your reason that you told the Commissioner, which was, “We are going to condemnation anyway; we might as well take the rest of this person’s property,” is there any other reason for taking the rest of their property?
A No.
A trial court held that that this evidence did not raise a fact issue that the County’s taking might not have served a public use. A panel of the Fourteenth Court of appeals agreed. A motion for en banc consideration was denied, and the Texas Supreme Court denied review.
A condemnation lawyer is left scratching his head over when, if ever, a court is going to hold that the public use requirement means anything, or has that ship truly sailed?