THE EASEMENT THAT’S REALLY A DIRECT TAKING

The right of an owner to just compensation for property taken by eminent domain is one guaranteed by the federal and state constitutions.  (Federal Constitution, Fourteenth Amendment; NY Constitution, Art. 1, Subd. 7).  The constitutional requirement of “just compensation” mandates that the property owner be indemnified so that he may be put in the same relative position, insofar as this is possible, as if the taking had not occurred.  City of Buffalo v J.W. Clement Co., Inc., 28 NY2d 241 258 (1971); Rose v State of New York, 24 NY2d 80, 87 (1969); Marraro v State of New York, 12 NY2d 285, 292-293 (1963).  It is the general rule that “just compensation” is the fair market value of the property at the date of the taking, Matter of Board  of Water Supply of City of New York, 277 NY 452 (1938); County of Erie v Fridenberg, 221 NY 389 (1917), and the fair market value is the price for which the property would sell if there was a willing buyer who was under no compulsion to buy and a willing seller who was under no compulsion to sell.  Keator v State of New York, 23 NY2d 337, 339 (1968).

Permanent easements often are the equivalent of a full fee acquisition.  Condemnors attempt to avoid paying just compensation by using language which attempts to avoid the consequence of the taking.  Permanent easements typically contain the following reservation clause: RESERVING, however, to the owner any right, title or interest in and to the property delineated, and such owner’s successors or assigns, the right of access and the right of using said property and such use shall not be further limited or restricted under this easement beyond that which is necessary to effectuate its purposes for, and established by, the construction or reconstruction and so constructed or reconstructed, the maintenance, of the herein identified project.

New York’s highest court, the Court of Appeals, held that easements with similar language provide the State with a “virtual veto power” that renders the property landlocked.  Kravec v State of New York, 40 NY2d 1060 (1976).  The court in Kravec identified that while the reservation clause includes a use to the Claimant, the use is conditioned on Claimants’ non-interference with the “exercise of easement rights.”  Kravec v State of New York, 40 NY2d 1060, 1061 (1976).  As the Court of Appeals stated: “This condition of noninterference, however, gives the State a virtual veto power over any use the claimants may wish to make of their property because only the State knows or can predict what size structures or impairments it may erect under the easement, or how it will use the easement and whether an activity by the claimants will interfere or not.  Furthermore, the limitation of the reservation clause necessarily leaves it to the State to say whether the use the owner wishes to make of the property interferes with the easement.  Under these circumstances a clear right of access does not exist and the inner portion of the property is thus deemed landlocked.”  Kravec v State of New York, 40 NY2d 1060, 1061 (1976).

“Not to be ignored, however, although not always measurable, is the damage to a property owner caused by uncertainty regarding the condemnor’s intentions…The threat imposed by the condemnor’s legal right to occupy may be almost as damaging as the actual occupation of the property.”  Highland Falls v State, 44 NY2d 505 (1978).  The State’s unfettered access, at any time, certainly precludes a clear right of access to Claimants.

Claimants should be entitled to substantial compensation because after the taking, the remainder parcel may be landlocked by permanent easement taking.  Kravec v State of New York, 40 NY2d 1060 (1976).  Also see Gilbert v State of New York, 25 Misc2d 552 (Ct. Cls., Patti, J. 2009).

Posted in Just Compensation, Permanent Easement

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