EMINENT DOMAIN – A BRIEF HISTORY
The right to own and use property has been contentious since the time we learned how to use fire. By the time the United States was formed, the right to property was memorialized in our Declaration of Independence and our U.S. Constitution. However, the right to own and use property has never been unfettered, and we have always lived by the principle that you can do what you want with your property as long as you do not harm others.
However, eminent domain is a different beast. Eminent domain is the inherent power of a governmental entity to take privately owned property for a public use, subject to reasonable compensation for the taking. Eminent Domain, as we know it today, has its roots in the Magna Carta (“the Great Charter”). Passed in 1215, the Magna Carta was written by a group of 13th-century barons to protect their rights and property against the tyrannical King John. While the Magna Carta was not concerned with the interests of the lower classes, the Magna Cartadid put limits on the Crown to protect the right of the Crown’s subjects. This included limitations on the absolute power of the Crown to take land. While the Magna Carta limited this absolute power, it did not require payment of compensation. It stated, “No free man shall be … dispossessed … except by the legal judgment of his peers or by the law of the land.”
The first colonial settlers (pre-United States) to receive land rights derived title from some public entity: a chartered company, a provincial land office, or a town. Part of that land grant was an obligation to improve the land. Colonial legislatures routinely took undeveloped property from land owners to give to others for public projects like roads. Yet, just compensation for that property was rarely given. That changed with the adoption of the U.S. Constitution, the Bill of Rights, and each State’s Constitution. The Fifth Amendment (and equivalent state provisions) limits the sovereign’s power by requiring just compensation for the property it takes. Requiring just compensation, therefore, is a limitation on the inherent power of the sovereign, not a grant of the power.
EMINENT DOMAIN IN KENTUCKY
Kentucky’s eminent domain provision can be found in Section 13 of the Kentucky Constitution: “…nor shall any man’s property be taken or applied to public use without the consent of his representatives, and without just compensation being previously made to him.” Kentucky’s power of eminent domain is further limited by the Kentucky Eminent Domain Act of 1976, KRS 416.540 through 416.990. This power of eminent domain is very important to the infrastructure of Kentucky and the nation. Without it, building roads, sewer lines, water lines, transmission lines, and, unless you have been hiding under a rock the past few years, gas and natural gas liquids (NGL) pipelines would be impossible. However, as is with any property right in the U.S., eminent domain authority is not unfettered.
Recently, a natural gas liquid pipeline was proposed to be constructed through Kentucky. The “Bluegrass Pipeline” would traverse over the Ohio River through northern and central Kentucky, and connect to an existing pipeline in Brandenburg. The pipeline companies claimed to have state eminent domain authority to do this. That authority was challenged by several property owners that had been threatened by the companies alleged to have that authority. The property owners won that battle. The Franklin Circuit Court held that the pipeline companies did not have eminent domain authority to for a natural gas liquids pipeline in Kentucky. That case is on appeal. We have assisted in the appeal by filing an amicus brief on behalf of the ACLU of Kentucky with the Court of Appeals outlining the ACLU’s support of the Franklin Circuit Court opinion, emphasizing that the eminent domain authority is not unfettered and should not be granted to the pipeline companies in that case. As a result of this lawsuit, the pipeline companies have put the Bluegrass Pipeline project on hold.
Yet, eminent domain authority for NGL pipelines is an ongoing issue. Kinder Morgan and MarkWest Energy, another NGL pipeline development partnership, is continuing with its plans for an NGL pipeline from Ohio to the Gulf Coast. This pipeline project will mostly use existing repurposed pipelines in Kentucky. However, whether the existing easements allow for the repurposed use of the pipeline is still questionable. If the new use is found not to be in accordance with existing easements, the companies will have to reacquire the use of the easement by purchase or by eminent domain.
Property owners in Kentucky are frequently threatened with eminent domain authority in other ways. Louisville MSD is currently working on a sewer project in eastern Jefferson County. Instead of using existing easements, MSD is threatening use of its eminent domain power to take property from landowners for the construction of a sewer line. When other new infrastructure such as electrical transmission lines, roads and highways are built, eminent domain authority can be used then too. Still, property owners have rights, and there are ways to challenge that eminent domain authority to either save your property or get the just compensation you deserve.
We have represented property owners, written extensively on the subject, and have been featured in news stories across the state on the issue of eminent domain. If you need representation or advice on eminent domain or other environmental and property issues, we are here to help.