Thomas J. Posey


Federal and state governments, through the use of eminent domain, may condemn the property of a private landowner and use that property to meet a public necessity. If the landowner challenges the condemnation, the courts generally perform an extremely narrow review of the government's decision to take the land. In order to prevail, the landowner must show either that the taking was in violation of constitutional or statutory provisions, or that some gross impropriety such as fraud or abuse of discretion occurred. However, landowners generally may not base their challenges on the grounds that the proposed project is unfeasible or unlikely to be completed. This notion that the feasibility of public necessity projects should never be judicially examined is clearly evidenced in two recent state cases: Itasca v. Carpenter and Comes v. City of Atlantic. In both of these cases, the government was allowed to condemn private lands for a public necessity, despite evidence that the land might never be used to alleviate that necessity. The practical effect of these holdings was to weaken the security of private land rights by making it easier for the government to exercise eminent domain powers. Although there will always be some possibility that a project designed to meet a public necessity will not be completed, this Note argues that landowners should be allowed to raise feasibility challenges in certain limited circumstances. Specifically, it proposes judicial means to limit the use of eminent domain in cases where the government is unlikely to use the condemned land to complete the necessity project, and suggests that judicial review of the feasibility of proposed necessity projects should be performed, in limited circumstances, through the application of a burden-shifting test. The Note concludes by addressing common arguments against judicial inquiry into the feasibility of necessity projects and by pointing out flaws in the economic reasoning of those arguments.

Included in

Law Commons