Eminent Domain Glossary of Terms

Our Ohio eminent domain lawyers want you to have the tools to understand the appropriation process. Here are words and phrases commonly used in connection with eminent domain proceedings. Of course, if you have questions that are not answered on this site, please call us at 800-647-7003 or send us a message.

Appraiser: In an eminent domain proceeding, an expert who determines the fair market value of real estate, including land and the buildings and fixtures on the land.

Appropriation: This term describes the “taking” of the property through condemnation or eminent domain proceedings.

Burden of Proof: The condemning authority has the burden the public necessity to take the property and that us proposed use is indeed a “public” use.

Common Carrier: An entity that transports persons or goods (airline, trucking company) or communication (telephone company or cellular service provider) for the common benefit (benefit of the public).

Condemnation: Condemnation is the formal act of exercising the power of eminent domain to transfer title to property from its private owner to the government. The Ohio Constitution uses the term condemnation to mean eminent domain proceedings. Eminent domain proceedings are used by the condemning authority to appropriate property. This is sometimes referred to as appropriation.

Condemning Authority: Eminent domain, or condemnation, finds its authority in Amendment V to the United States Constitution, and Article I of the Ohio Constitution. The condemning authority is the Sovereign–that is, the federal government or the state government. However, the Sovereign can convey the right of eminent domain to such as a utility company, so long as it is exercised for the public good.

Consequential Damages: Damages to the value of the owner’s property other than by taking the property itself. Examples would be an aviation clearance that would inhibit or prevent future construction, or noise from aircraft that would impair the peaceful enjoyment of the property, or the resale value.

Contiguous: Touching. This refers to a parcel of real estate whose boundary touches the boundary of another parcel of real estate.

Direct Damages: Damages that result from the actual taking of land and sometimes improvements upon the land. This is typically the value of the land taken.

Easement: The right to use some portion or some aspect of the real property of another without actually taking possession of it. An easement is a property right and entitles the holder to use the real estate in a specified manner. A common example involves neighbors, one of which does not have direct access to a roadway. The neighbor without access would commonly obtain an easement to travel over the other neighbor’s property to reach the road.

Eminent Domain: The power of the government (state or federal) to seize private property, without the owner’s consent, for the public good–or for a public purpose.

Fair Market Value: The amount of money a willing buyer would be willing to pay to a willing seller at a given time. The transaction is assumed to be bargained for by the parties after full disclosure. Fair market value is not the perceived value of the property to the seller, or what the seller paid for the property.

Fixture: An improvement to real property that becomes part of the essential character and function of the real property and cannot easily be removed.

Highest and Best Use: In determining fair market value, consideration can be given to the purpose for which the property is best suited, even if the property is not being used for that purpose at the time of condemnation.

Indirect Damages: See “consequential damages.”

Interest: Interest is always awarded from the time of the taking until payment at the conclusion of the eminent domain proceedings. Interest is based on the value of the use of the property during the period of time in question.

Inverse Condemnation: In this case, the property owner, rather than the condemning authority, initiations the eminent domain action. This might occur when a governmental authority floods a property owner’s land without initiating an eminent domain proceeding. The owner, therefore, initiates the action to obtain compensation for the “taking” that results from the flooding.

Irrebuttable Presumption: Presumption means that a claim (such as the necessity for an appropriation) is deemed to be valid. Ordinary presumptions may be challenged (rebutted), but the burden of proof to rebut the presumption is on the challenger. An “irrebuttable presumption” cannot be challenged. It is deemed legally valid and true. When a state or federal regulatory authority approves an appropriation by a public utility or common carrier, there is an irrebuttable presumption of the necessity of the taking.

Jury Trial: In Ohio, the property owner has the right have a jury determine the amount of just compensation to be paid for the appropriated property. There is no right to have a jury decide other issues, such as the appropriateness of the taking, and whether it is for a public use. These issues will be decided by the court.

Just Compensation: Any time there is a total or partial taking of property in an eminent domain proceeding, the property owner is entitled to just compensation. Just compensation is the “fair market value” of the property.

Partial Taking: This occurs when the condemning authority takes less that the owner’s whole parcel of property. The property not “taken” is known as the “remainder.” The condemnor must compensate the property owner for the value of the property taken as well as for any loss of value to the remaining property, known as “severance damages.”

Petition: This is the pleading that the appropriating authority files with the court to commence proceedings to appropriate the condemned property. It must be filed in the county where the property is situated, and it must set forth the necessity for the appropriation and the specific public use for the property, along with the good faith offer of just compensation.

Police Power: Police powers enable governments to regulate the lives of its citizens for public safety. The state may enact laws for the public safety, and if such a law results in a full or partial taking of private property, this is deemed to be justified by the police power of the state. When private property taken through exercise of the state’s police power, the property owner is not entitled to compensation.

Property: For eminent domain purposes, property includes both real and intangible property. Real property is land, along with the structures upon land. Intangible property includes the air space above real property and the right to enjoy real property free of nuisance (such as unreasonable noise). It also includes the right to put the property to its highest and best use, which would include the right to develop the property.

Public Agency: Public agency means any governmental corporation, organization or officer authorized by law to take private property without the owner’s consent.

Public Use: Both the federal and Ohio constitutions forbid the state to take private property for the benefit of a private individual or entity, even when just compensation is provided. Rather, private property may be appropriated only for the common good of the community, a public benefit. What constitutes a public use is not always clear and sometimes–though rarely–may be successfully challenged by the property owner. In Ohio, the following are presumed to be public uses: utility facilities, roads, sewers, water lines, public schools, public institutions of higher education, private institutions of higher education that are authorized to appropriate property by statute, public parks, governmental buildings, port authority transportation facilities, projects by an agency that is a public utility, and similar facilities and uses of land [RC 163.01(H)(2)].

Rebuttable Presumption: Presumption means that a claim (such as the necessity for an appropriation) is deemed to be valid. Some presumptions may be challenged (rebutted). Presentation of evidence by a public utility or common carrier (without prior approval of the state or federal government) of evidence of the necessity of the appropriation creates a rebuttable presumption of the necessity. This may be challenged, but the burden of proof is on the property owner.

Regulatory Taking: This occurs where a governmental regulation encroaches upon the use of the property or deprives the owner of the use of all or part of the property, without actually taking the owner’s title to the property. A regulatory taking is accomplished through the police power of the state and, unlike appropriation through eminent domain, does not require compensation to the property owner. The property owner challenging a regulatory taking has the burden of proof to show that the taking is unconstitutional.

Remainder: In the event the condemning authority takes less than the whole parcel of property, the portion of the property not taken is known as “the remainder.”

Severance Damages: In a partial taking of property, compensation paid for the reduced value of the property not taken, known as the “remainder.” Severance damages are due for the diminution in value of the remainder resulting from the condemned property.

Statute of Limitations: Time limits apply to the commencement of all civil actions (lawsuits). As a general rule, an action for just compensation for the physical or regulatory taking of real property must be commenced within four years of the “taking.”

Taking: A taking occurs, for which the property owner must receive just compensation, when the government or condemning authority physically takes all or part of real property, or substantially interferes with a property right, whether real or intangible.

Time Limits: See Statute of Limitations.

Total Taking: When the condemning authority takes an entire parcel of property through the power of eminent domain.

Unity Theory: In determining fair market value, consideration can be given to the fact that the most profitable use–or highest and best use–of the property can be made only in combination with other parcels of land. It must be shone that the parcels function as a single economic unit.