Generally, a body with the power of eminent domain cannot condemn the property of a higher sovereign. But the key inquiry seems to be, is the current use a public use, since there is a doctrine of prior public use which holds that a condemnor may not condemn property already being used for a public purpose if the proposed use “will either destroy the existing (public) use or interfere with it to such an extent as is tantamount to destruction.” Okanogan County PUD v State, 182 Wn2d 519, 538-539 (2015). But the prior public use doctrine does not apply when the prior use is compatible with the proposed use. To be considered a public use, the prospective public use must be concrete and non-speculative. In Cent. Puget Sound Reg Transit Auth. v WR-SRI 120th N. LLC, 191 Wn2d 223 (2018), the issue was, could the Sound Transit Authority condemn the City of Seattle’s electrical transmission line easements which ran through another city in order to extend a light rail system. The Supreme Court of Washington held that the issue depended on the compatibility of the two uses and remanded for further proceeding.
In New York, we see the defense asserted in different forms. One of my favorites is Westchester Creek Corp. v New York City Sch. Constr. Auth., 286 AD2d 154 (2d Dept 2001). Here a developer challenged the right of the Authority to condemn land it leased from the City of New York. The City had condemned the land for an urban renewal plan. Westchester Creek argued that the doctrine of prior public use barred the further condemnation of the land. The Court held that while the doctrine usually applies, it must bow when the proposed taking is for a public use which is special, unusual and peculiar. Here, the New York State Legislature recognized the “deplorable physical condition” of elementary and secondary schools in the City of New York. The Court found that this countervailing public interest to be served made the prior public use doctrine untenable as an argument. Proving once again that: Those that live by the sword, die by the sword.
In another New York case, Matter of Village of Ballston Spa v City of Saratoga Springs, 163 AD3d 1220 (3d Dept 2018), the Village objected to the City’s condemning portions of the Village’s property for use as a trial to improve pedestrian and bicycle travel on the basis that its water supply would be affected or at risk if the City condemned portions of two parcels owned by the Village. The Court held that the prior public use doctrine does not bar the City. While providing water is undoubtedly a public use, the Village did not establish that the Village’s property is devoted to that use. There was no showing that condemnation of the Village’s property would interfere with or destroy the public use.