The Oklahoma Bar Journal November 2022

The Essential Eminent Domain Concepts By Nick Atwood M unicipal L aw

E MINENT DOMAIN CASES ARE A CLASH of two bedrock principals of our legal tradition: the sacrosanct right of property owners to own and exercise control over their property and the sovereign state’s power to take private property from an individual for the benefit of the public. The origins of eminent domain date back to the Old Testament of the Bible. King David offered and paid Araunah compensation for his threshing floor to ultimately build an altar to the Lord to stop the plague. 1 In the United States, the concept of eminent domain is recognized by the Takings Clause of the Fifth Amendment to the United States Constitution. The Takings Clause states that private property shall not be taken for public use without just compensation. 2

Oklahoma’s Constitution recognized the state’s power of eminent domain in Article II Section 24. Section 24 is similar to the Taking Clause, stating private property shall not be taken without just compensation. 3 In the state of Oklahoma, it is well-settled law that the constitutional eminent domain powers and provisions “are not grants of powers, but lim itations placed upon the exercise of government of power.” 4 Alexander Hamilton observed that one of the greatest objectives to the constitu tional constraints on the power of eminent domain is to protect “the security of property.” 5 Likewise, the framers of the Oklahoma Constitution recognized their first duty was to protect life and prop erty. 6 The state’s power of eminent domain “lies dormant in the State until the Legislature, by specific enactment, designates the occasion,

modes and agencies by which it may be placed in operation.” 7 An eminent domain action is to take private property for public use – it is not a civil action but a special statutory proceeding. 8 The right of eminent domain is a fundamental power of the sover eign state and strictly controlled by Oklahoma Constitution and statutes. 9 Our Supreme Court has the longstanding general rule of strict statutory construction of the eminent domain statutes. 10 Specifically, the established gen eral rule is to construe the state constitutional eminent domain provisions strictly in favor of the landowner and against the condemnor. 11 The state’s eminent domain statutes must conform to the restrictions placed on them by the Oklahoma constitutional eminent domain provisions. 12

Eminent domain is limited by Article II Section 24 of the Oklahoma Constitution, which states, in part, “Private property shall not be taken or damaged for public use without just compensa tion.” The constitution sets forth the definition of just compensation as the following: “Just compensa tion is the value of the property taken, and in addition, any injury to any part of the property not taken. Any special and direct ben efits to the part of the property not taken may be offset only against any injury to the property not taken.” 13 Eminent domain actions are a special proceeding strictly controlled by the Oklahoma Constitution and statues set forth by the Legislature. 14 Condemning authorities are subject to the eminent domain provisions set forth in Title 27 of the Oklahoma Statutes. The

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THE OKLAHOMA BAR JOURNAL