Better Blast It to Make Sure It's Dead

Jacob Sullum | February 28, 2006

Here's a sweeping South Dakota ban we can all get behind. (OK, maybe not Joe.) The bill, which prohibits condemning property "for transfer to any private person, nongovernmental entity, or other public-private business entity," was approved by a unanimous vote of the state Senate and a nearly unanimous vote of the state House. The Institute for Justice reports that Gov. Mike Rounds signed the measure this month.

As you might have guessed based on the way the bill sailed through the legislature, eminent domain abuse was not exactly rampant in South Dakota. Here's the summary from I.J. attorney Dana Berliner's five-year review of eminent domain cases in the 50 states:

South Dakota has remained almost entirely free of eminent domain controversy. There have been no reports at all of state or local governments condemning property for private use. South Dakotans then do not have to fear the abuse of eminent domain for private parties.

Now, I guess, they do not have to fear it even more.

Comments

|2.28.06 @ 4:21PM|#

Despite how much I tend to knock my home state and it's government, they occasionally make a move like this one. Which was why they had been a finalist for the Libertarian Free State project; had they been chosen, I might have stuck around...

|2.28.06 @ 4:27PM|#

I guess that's that for the privatization of the water utilities.

|2.28.06 @ 4:34PM|#

Dakotans then do not have to fear the abuse of eminent domain for private parties.

Hmph. Shave the last three words off that sentence, and I'd give them a hurrah. The worst abuser (and only actual practitioner) of eminent domain remains exempt from the ban.

R C Dean|2.28.06 @ 4:53PM|#

I guess that's that for the privatization of the water utilities.

How so? What needs to be condemned in order to privatize the water utilities?

|2.28.06 @ 5:49PM|#

Strange how people think this law means anything. The whole eminent domain controversy would not even exist if the government was held to laws already on the books.

Don't worry though, this law will stop 'em!

HA!

|2.28.06 @ 5:51PM|#

How so? What needs to be condemned in order to privatize the water utilities?

Well, one might argue that the State should not be allowed to condemn property for a State project, and then turn around and sell the project (privatize) to a private party. That would pretty much defeat the purpose of the bill.

R C Dean|2.28.06 @ 6:11PM|#

Sure, bubba. I don't see how a law that says you can't condemn property in order to transfer it to a private party would prohibit the state from transferring property that held on the day the law was passed to a private party.

R C Dean|2.28.06 @ 6:11PM|#

Sure, bubba. I don't see how a law that says you can't condemn property in order to transfer it to a private party would prohibit the state from transferring property that held on the day the law was passed to a private party.

|3.1.06 @ 3:46AM|#

I guess that's that for the privatization of the water utilities.

Let me correct this statement, I'm assuming it was a typo:

I guess that's that for government decreed contractual monopolies held by a single private entity.

Hopefully so.

|3.1.06 @ 8:57AM|#

RC, I'm not sure if the law is to be read to forbid the transfer of property already taken through eminent domain. But it is likely that land for reservoirs, pumping stations, and aquifier recharge areas will need to be taken at some point in the future.

Another interesting question is, what about "leftovers" from infrastructure takings? Will the South Dakota government be stuck with developable land adjacent to bridges and widened roadways (for example) that it will be forbidden to sell?

|3.1.06 @ 8:59AM|#

Another interesting question is, what about "leftovers" from infrastructure takings? Will the South Dakota government be stuck with developable land adjacent to bridges and widened roadways (for example) that it will be forbidden to sell?

If they wind up with leftovers, it sounds like they condemned too much land in the first place.

|3.1.06 @ 10:10AM|#

If they wind up with leftovers, it sounds like they condemned too much land in the first place.

"Leftovers" usually come about because when there is an "uneconomic remnant" left after the actual right of way parcel is established.

Such parcels are purchased as fee simple real estate as part of the property puechase settlement since the original owner has no particlar use in retaining ownership and has been damaged to that extent.

The agency responsible is free to dispose of that property in anyway it sees fit. Sometimes they are conveyed to an adjacent owner as part of the compensation that he receive for his parcel, or they are combined with other uneconomic remnants to make a usable parcel which can then bee sold.

It does not have this leeway with right of way parcels that are not used. There are rather strict rules about that (in Florida, at any rate). Usually it must be returned to the original owner.

Many of these transactions involve negotiations rather than condemnation, but the fact that said negotiations occur under the gun of eminent domain does color them somewhat.

In a previous incarnation I was a scrivener of legal descriptions for right of way takings so I do know something about this.

|3.1.06 @ 10:58AM|#

Yes, but how does this affect Wall Drug?

|3.1.06 @ 11:59AM|#

Jennifer,

In my state, the government is forbidden from taking only parts of properties in some circumstances, for the protection of the homeowner. For example, if your house is 15' back from the road, and the city wants to widen the road by 15'. Now, you've gone from having a house a quiet, narrow street with a 15'front yard, to having a house right up against a wide, busy street.

If the government only bought the 15, unbuildable strip of land, its value would not even come close to the dimunition of value to the homeowner. So the government pays the property owner the value of the entire property, takes the entire property, and then sells the remainder for what it is now worth.

The South Dakota law would seem to require the goverment to keep ownership of a whole street's worth of perfectly good house lots.

|3.1.06 @ 12:01PM|#

BTW, what happens in most cases is that the property owner and the government negotiate a sales price for the 15', and eminent domain isn't used to take the land. But not all cases.