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FOR EDUCATIONAL USE ONLY
QUERY - PROPERTY FOR PUBLIC USE DATABASE(S) -ALLCASES,AMJUR
1. H Town of Fayal v. City of Eveleth,587 N.W.2d 524, 1999 WL 1840, Minn.App., January 05, 1999
(NO.C2-98-875)
...public entity, is a public use. [8] Eminent Domain148 28 148
Eminent Domain 148I Nature, Extent, and Delegation of Power148 16
Particular Uses or Purposes 148 28 k. Water Supply inGeneral.
Municipality's supplying water is a public use; legislature hasexpressly empowered a municipality to provide a waterworks
systems.M.S.A. s 444.075 , subd. 1a. [9] Eminent Domain 148 28
148 EminentDomain 148I Nature, Extent, and Delegation of Power 148 16Particular Uses or Purposes 148 28 k. Water Supply in
General.City's water distribution to township resident's, even if held in aproprietary capacity, was a public use by a public body.
[10] EminentDomain 148 47(1) 148 Eminent Domain 148I Nature,
Extent, andDelegation of Power 148 44 Property Subject to
Appropriation 148
47 Property Previously Devoted to Public Use148 47(1) k. In
General. ...
2. C Brittain v. Southern Ry. Co.,280 Ala. 650, 197 So.2d 453, Ala., March 30, 1967 (NO. 7 DIV.
730)
...property for public use without consent of owner. [2] EminentDomain 148 47(1) 148 Eminent Domain 148I Nature,
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Extent, andDelegation of Power 148 44 Property Subject to
Appropriation 14847 Property Previously Devoted to Public Use
148 47(1) k. InGeneral. Right of railroad to maintain spur track and to go uponit
with engines and cars for hauling and delivery of freight for hirewas
private property subjected to or devoted toa "public use" within
meaning of statute prohibiting taking of such property foranother
public use unless actual necessity shall be proved and unless
it beproved that other public use will not materially interfere with
publicuse to which land is already subjected or devoted. Code 1940,
Tit.19, s 9 . [3] Eminent Domain 148 46 148 Eminent
Domain 148INature, Extent, and Delegation of Power 148 44 Property
Subject toAppropriation 148 46 ...
3. Yel FlgVermont Hydro-Electric Corp. v. Dunn,95 Vt. 144, 112 A. 223, 12 A.L.R. 1495, Vt., January 08, 1921
(NO. 259)
...Property Subject to Appropriation 148 47 PropertyPreviously
Devoted to Public Use 148 47(1) k. In General. Where
land isdevoted to a public use, it cannot be taken by condemnation
foranother public use, unless the Legislature in express terms or
bynecessary implication has authorized it to be so taken. 190
EminentDomain 148 47(1) 148 Eminent Domain 148I Nature,
Extent, andDelegation of Power 148 44 Property Subject to
Appropriation 148
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47 Property Previously Devoted to Public Use148 47(1) k. In
General. To bring property within the immunity fromcondemnation under
general legislative authority as having already been legallyappropriated to a public use, it is not necessary that it havebeen
acquired by eminent domain; if its owner has devoted it to apublic
use which he is under legal obligation to maintain, it comeswithin the
protection of the rule. 190 ...
4. Yel FlgGeorgia Dept. of Transp. v. Jasper County,355 S.C. 631, 586 S.E.2d 853, 2003 WL 22119893, S.C.,
September 15,2003 (NO. 25714)
...public use, if applicable, does not depend on whether theprior use
was acquired by condemnation or purchase. See New YorkCent. & H.
R.R. Co. v. City of Buffalo, 200 N.Y. 113, 93 N.E. 520 (1910) .2 [5]
Consistent with this line of cases, we conclude the priorpublic use
doctrine should be limited to those cases involving competingcondemnors. It is for the condemning entity to
determine whetherprivately owned property, although presently used for public
benefit,should be condemned for a competing public use. The
difficulty ofinjecting the judicial branch into the arena of competing
"public uses" is in fact demonstrated by the one case in which this Court
attemptedto apply the doctrine of prior public use. In Tuomey Hosp. v.
Cityof Sumter, 243 S.C. 544, 134 S.E.2d 744 (1964) ...
5. H Florida East Coast Ry. Co. v. City of Miami,
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321 So.2d 545, Fla., July 24, 1975 (NO. 44874)
...Property Subject to Appropriation 148 47 PropertyPreviously
Devoted to Public Use 148 47(1) k. In General. Generally,under the"prior public use doctrine" , property held by authority that haspower of condemnation cannot be taken by another authority
with samepower of condemnation absent specific legislation. [2] Eminent
Domain148 47(1) 148 Eminent Domain 148I Nature, Extent, and
Delegation ofPower 148 44 Property Subject to Appropriation
148 47 PropertyPreviously Devoted to Public Use 148 47(1) k. In General.
Where, inproceedings by city to condemn waterfront lands owned by
railroad, bothcity and railroad possessed general powers of condemnation
delegated tothem by legislature, "prior public use doctrine" applied; thedoctrine was not limited to situations involving two public
bodies. [3]Eminent Domain 148 47(1) 148 Eminent Domain 148I ...
6. C President and Fellows of Middlebury College v. CentralPower Corp. of
Vt.,101 Vt. 325, 143 A. 384, Vt., October 03, 1928
...Property and Conveyances 101 2421 k. Capacity to acquireand hold
property in general. (Formerly 101k434 ) Corporation may takeproperty
on trust collateral to expressed purposes of its institution. 192Eminent Domain 148 13 148 Eminent Domain 148I Nature,
Extent, andDelegation of Power 148 12 Public Use 148 13 k.
In general.Distinction between public and private uses lies in character of
use,
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which must be determined by consideration of economicconditions and
people's needs, as well as legal principles. 190 EminentDomain 148
47(1) 148 Eminent Domain 148I Nature, Extent, andDelegation of Power148 44 Property Subject to Appropriation 148 47 PropertyPreviously Devoted to Public Use 148 47(1) k. In
general. Propertyappropriated to public use cannot be taken for another such
usewithout express or implied legislative authority. 190 Eminent
Domain148 47(1) 148 Eminent Domain 148I ...
7. Yel FlgBuckhout v. City of Newport,68 R.I. 280, 27 A.2d 317, 141 A.L.R. 1440, R.I., July 24, 1942
(NO.1607)
...Property 268 223 k. Purposes for Which Property May BeAcquired
or Held. The mere fact that property which city has purchasedand used
for a public purpose cannot be enjoyed by the publicindividually as
can parks, streets, and commons, does not require finding thatsuch
property is not held in trust and devoted to a "public use". [5]Municipal Corporations 268 223 268 Municipal Corporations
268VIProperty 268 223 k. Purposes for Which Property May Be
Acquired orHeld. The test of whether use of property by city is "public" or"private" consists in whether the use is made by the city in itsgovernmental capacity or in its proprietary capacity.
[6] MunicipalCorporations 268 225(3) 268 Municipal Corporations
268VI Property268 225 Sale or Other Disposition of Property
268 225(3) k.Property Acquired or Held for Special Purpose. ...
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subsequenttakings; generally West's Key Number Digest West's Key
Number Digest,Eminent Domain k 47(1) It has been held that a public use is a
use which concerns the whole community or promotes the generalinterest in
its relation to any legitimate object of government and thatproperty
appropriated to a public use refers to property previouslycondemned
for such purpose.[FN 1 ] It is long-established that to exemptproperty
from condemnation under a general grant of the power of
eminent domainbecause the property is already devoted to a public use, the
owner musthave a legal obligation to maintain the public use.[FN 2 ] If the
useby the public is permissive and may be abandoned at any time,
theproperty is not exempt.[FN 3] Property already devoted to a
public usegenerally may not be taken by eminent domain, absent
legislative orconstitutional authority, if such taking would destroy the current
useof the property.[FN 4] Caution: The rule is otherwise, however,
wherethe property is not in actual public use and is not necessary or
vitalto the operation of the project or business concerned.[FN 5]
Where the
condemning authority has superior eminent-domain power thanthe agency
using the land in question, the public-use doctrine has beenfound to
be inapplicable.[FN 6 ] Land not devoted to the public use,although
owned by a public-service corporation, may be taken undergeneral
legislative authority as freely as from a private individual, andspecial legislative authority is not necessary.[FN 7 ] Indeed, the
rule
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may be stated that one public utility company may condemn theproperty
of another public utility company if the latter company is notusing
its property to serve the public, and in some instancesmunicipalitiesand quasi-municipalities come under the same principle.[FN 8 ]
Aportion of a tract taken for a public use, but which is not
essentialto such use and which may be devoted to a different public use
withoutseriously infringing upon the enjoyment of the first use, may be
taken
for the second use under general authority.[FN 9] [FN 1]Southern
California Edison Co. v. Rice, 685 F.2d 354 (9th Cir. 1982) [FN2]
Vermont ...
...gristmill). [FN 4] Worthington v. Columbus, 100 Ohio St. 3d103,
2003 -Ohio- 5099, 796 N.E.2d 920 (2003) The prior-public-usedoctrine
only applies to preclude a municipality from condemningproperty
already dedicated to a public use if the property would bedestroyed by
the use to which the municipality proposed to condemn theproperty.
City of Las Cruces v. El Paso Elec. Co., 1998 -NMSC- 006, 124N.M. 640,
954 P.2d 72 (1998 ...
10. C State ex rel. Puget Sound & B.R. Ry. Co. v. Joiner,182 Wash. 301, 47 P.2d 14, Wash., June 27, 1935 (NO. 25717)
...public use is conclusive, in absence of actual fraud or sucharbitrary and capricious conduct as would amount to
constructive fraud.[2] Eminent Domain 148 47(1) 148 Eminent Domain
148I Nature,
Extent, and Delegation of Power 148 44 Property Subject to
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Appropriation 148 47 Property Previously Devoted toPublic Use 148
47(1) k. In General. Property is not exempt from condemnationbecause
it may have been previously dedicated, appropriated, ordevoted topublic use. Rem.Rev.Stat. s 901 ; Const. art. 12, s 10 . [3]Eminent Domain 148 47(1) 148 Eminent Domain
148I Nature, Extent,and Delegation of Power 148 44 Property Subject to
Appropriation148 47 Property Previously Devoted to Public Use
148 47(1) k.In General. ...
11. Red FlgCity of Las Cruces v. El Paso Elec. Co.,904 F.Supp. 1238, 1995 WL 664788, Util. L. Rep. P 14,073,
D.N.M.,October 23, 1995 (NO. CVI. 2:95-485 LCS, CIV.2:95-
385LCS/JHG)
...Property Subject to Appropriation 148 47 PropertyPreviously
Devoted to Public Use 148 47(1) k. In General. UnderNew Mexico
law, prior public use doctrine, requiring that city have specificstatutory authority or authority by necessary implication to
sustainmunicipal condemnation of existing public use, applies only if
thereis destruction, obliteration, or material impairment of prior use.
[35]
Eminent Domain 148 47(1) 148 Eminent Domain148I Nature, Extent,
and Delegation of Power 148 44 Property Subject toAppropriation
148 47 Property Previously Devoted to Public Use148 47(1) k.
In General. ...
12. H City of Worthington v. City of Columbus,
Not Reported in N.E.2d, 2002 WL 977341, 2002 -Ohio- 2330,
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Ohio App. 10Dist., May 14, 2002 (NO. 01AP-1119, 01AP-1120)
...property within the condemnor's corporate limits, even if such
property is owned by another municipal corporation and isbeing put toa public use. This is especially true in the case at bar, where
thepublic use is a park, which involves a governmental function,
asopposed to appellant's proposed use, a cemetery expansion,
whichinvolves a proprietary function. There is simply no language inSection 3, Article XVIII of the Ohio Constitution which would,
bynecessary implication, grant the authority to appellant to
appropriatethe subject property and thereby destroy the existing
public use towhich the property is currently being put. 6 {P 36} ...
13. C Oxford County Agr. Soc. v. School Administrative Dist. No.17,
161 Me. 334, 211 A.2d 893, Me., July 21, 1965
...public in some degree, they fell short of constituting such 'public
uses' as would exempt society's property from eminent domainprocess.
Appeal denied. 1. Eminent Domain 47(1)
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characteristics whichmust be present if use is to be deemed public and not private
withinmeaning of eminent domain law.
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of Civil Procedure , provides: 'The private property which maybe taken
under this title includes: (1) All real property belonging to anyperson. ...
16. Red FlgTuomey Hospital v. City of Sumter,243 S.C. 544, 134 S.E.2d 744, S.C., February 13, 1964 (NO.
18170)
...public use was inference drawn by pleader from facts andwas not
admitted by demurrer. [8] Eminent Domain 148 13148 Eminent Domain
148I Nature, Extent, and Delegation of Power148 12 Public Use
148 13 k. In General. The distinction between"public use" and
"private use" lies in character of use and must to large extentdepend
on facts of each case; there are however certain essentialcharacteristics which must be present if use is to be deemed
public andnot private within meaning of eminent domain law. Code 1962,
ss25-161 to 25-170 , 47-68.1 ; Const. art. 1, s 17 .
[9] EminentDomain 148 47(1) 148 Eminent Domain 148I Nature,
Extent, andDelegation of Power 148 44 Property Subject to
Appropriation 14847 Property Previously Devoted to Public Use
148 47(1) k. In
General. ...
17. Yel FlgHTK Management, L.L.C. v. Seattle Popular MonorailAuthority,
155 Wash.2d 612, 121 P.3d 1166, 2005 WL 2709354, Wash.,October 20,
2005 (NO. 76462-0)
...public uses. FN13. Ariz. Const. art. II, s 17 ( "Whenever an
attempt is made to take private property for a use alleged to be
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public, the question whether the contemplated use be really public
shall be ajudicial question, and determined as such without regard to any
legislative assertion that the use is public." ). Colo. Const. art.II,s 15 ( "[W]henever an attempt is made to take private property
for ause alleged to be public, the question whether the
contemplated use bereally public shall be a judicial question, and determined as
suchwithout regard to any legislative assertion that the use is
public." ).
See also Pub. Serv. Co. of Colo. v. City of Loveland, 79 Colo.216,
245 P. 493 (1926) . Miss. Const. art. III, s 17 ( ...
18. C Laurel Beach Ass'n v. Town of Milford,148 Conn. 233, 169 A.2d 748, Conn., March 28, 1961
...property owner appealed. The Supreme Court of Errors,Murphy, J.,
held that devotion to public use within statute exempting fromtaxation property belonging to municipal corporation which is
used forpublic purpose means a use open to public generally, and
property inquestion was not exempt. No error. (1) 1. Taxation k217
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37380)
...Public Use 148 13 k. In General. Order of Boardof Railroad
Commissioners, if it deprives railroad of private property forotherthan public use, violates Const. art. 1, s 18 . 190 Eminent
Domain148 13 148 Eminent Domain 148I Nature, Extent, and
Delegation ofPower 148 12 Public Use 148 13 k. In
General. Substantialbenefit to public from use of property by private persons does
not
necessarily constitute a public use of property; "public use"and "
public benefit" not being synonymous. 190 Eminent Domain148 13 148
Eminent Domain 148I Nature, Extent, and Delegation of Power148 12
Public Use 148 13 k. In General. Term "public use"means that
public possesses certain rights to the use or employment ofproperty (
Const. art. 1, s 18) . 190 Eminent Domain 148 13148 Eminent Domain
148I Nature, Extent, and Delegation of Power148 12 Public Use
148 13 k. In General. ...
20. Yel FlgMarin County Water Co. v. Marin County,145 Cal. 586, 79 P. 282, Cal., December 24, 1904 (NO. 3,918)
...Property Subject to Appropriation 148 47 PropertyPreviously
Devoted to Public Use 148 47(6) k. AppropriatingHighways, Streets,
and Parks. Code Civ.Proc. s 1237 , defines eminent domain asthe right
of the people or government to take private property forpublic use.
Section 1240, enumerating the private property which may be
taken
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therefor, includes all real property belonging to anyperson; lands
belonging to this state, or to any county, incorporated city, etc.,not
appropriated to public use, and property taken for public useproviding, however, that such property shall not be taken unlessfor a
more necessary public use than that to which it has beenalready
appropriated. Held, that land of a private person subject to aneasement for a public highway may be taken by a water
company for a damand reservoir as for a more necessary public use ...
21. H Township of West Orange v. 769 Associates, L.L.C.,172 N.J. 564, 800 A.2d 86, 2002 WL 1339485, N.J., June 20,
2002 (NO.A-45 SEPT.TERM 2001)
...property acquired must be taken for a "public use," the statemust
pay "just compensation" in exchange for the property, and noperson
shall be deprived of his or her property without due process oflaw.
[5] Eminent Domain 148 13 148 Eminent Domain148I Nature, Extent,
and Delegation of Power 148 12 Public Use 148 13 k.In general.
For purposes of justifying use of eminent domain, a "public use " is
anything that tends to enlarge resources, increase the industrial
energies, and manifestly contributes to the general welfare andthe
prosperity of the whole community, and thus, "public use" issynonymous with "public benefit," "public advantage," or "publicutility." [6] Eminent Domain 148 14 148 Eminent
Domain 148INature, Extent, and Delegation of Power 148 12 Public Use
148 14k. Extent of use or benefit. ...
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22. Yel FlgBlack Rock Placer Mining Dist. v. Summit Water &Irrigation Co.,
56 Cal.App.2d 513, 133 P.2d 58, Cal.App. 3 Dist., January 05,1943 (NO.
CIV. 6728)
...Public Use 148 13 k. In General. The question what isa public
use, so as to be subject to eminent domain, is a "question oflaw" ,
and, although deference will be paid to legislative judgment, asexpressed in enactment providing for appropriation of property,
it willnot be conclusive. [7] Eminent Domain 148 196
148 Eminent Domain148III Proceedings to Take Property and Assess
Compensation 148 196k. Evidence as to Right to Take. A placer mining district, in
order toacquire private property by eminent domain, is required to
prove thatprivate property is required for a specified purpose and is to be
usedfor a designated public benefit, notwithstanding provision in
PlacerMining District Act designating all property required by any
districtformed under the act in fully carrying out provisions of act, to be
apublic use. Code Civ.Proc. s 1238 ; Gen.Laws Act 4938a, ...
23. Yel FlgBoard of Ed. of Union Free School Dist. No. 2 of Towns of
Ossining andMt. Pleasant v. Pace College,27 A.D.2d 87, 276 N.Y.S.2d 162, N.Y.A.D. 2 Dept., December
28, 1966
...public use. Reversed; motion to dismiss the separatedefense
granted. EMINENT DOMAIN 47(1)
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state itself to condemn land already devoted to public use,unless the
legislature expressly or by necessary implication has authorizedthe
particular acquisition in controversy. EMINENTDOMAIN 47(1)
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25. Yel FlgLouisiana Power & Light Co. v. City of Houma,
229 So.2d 202, La.App. 1 Cir., November 17, 1969 (NO. 7800)
...Property once devoted to a public use cannot be divertedtherefromwithout express authority of the Legislature.' [5] The quoted
languagefrom the landmark Ouachita case, above, establishes the rule
that asubdivision or agency of the state does not possess authority toexpropriate property in public use unless such authority is
expresslyconferred or necessarily implied from the language of the
legislationgranting the right to condemn. Appellant maintains it is
expresslyempowered to take property in public use because the statute
inquestion authorizes the expropriation of 'buildings,
transmissionlines, stations and substations' . It is argued that 'transmissionlines, stations and substations' are by their very nature
propertieswhich will always be in public use. ...
26. Red FlgCity of Cleveland v. Board of Tax Appeals,153 Ohio St. 97, 91 N.E.2d 480, 16 A.L.R.2d 1354, 41 O.O.
176, Ohio,March 01, 1950 (NO. 31802)
...Property Taxes 371III(F) Exemptions 371III(F)1 In General
3712311 k. Public Property in General. (Formerly 371k213 )
Section ofthe constitution authorizing passage of general laws to exempt
publicproperty used exclusively for any public purpose is a limitation
onlegislative power to enact laws exempting property, and the
GeneralAssembly may not exempt from taxation publicly owned
property not used
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town, of any proposed public utility, or any public improvement,and
that the property described in such resolution or ordinance isnecessary therefor, such resolution or ordinance shall be
conclusiveevidence; (a) of the public necessity of such proposed publicutility
or public improvement; (b) that such property is necessarytherefor,
and (c) that such proposed public utility or public improvementis
planned or located in the manner which will be most compatiblewith the
greatest public good, and the least private injury: Provided, that
saidresolution or ordinance shall not be such conclusive evidence in
thecase of the taking by any county, city and county, or
incorporated city995 ...
29. Yel FlgReading Municipal Airport Authority v. Schuylkill Val.School Dist.,
4 Pa.Cmwlth. 300, 286 A.2d 5, Pa.Cmwlth., January 17, 1972
...use or charges for use and buildings were available for rentalby
private business entity to persons of its unfettered choosing,property
primarily served private entity and not general public usingairport
and was not exempt from local taxation under statute
exempting publicproperty used for public purposes from local taxation. Affirmed.TAXATION 197
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2. TAXATION213
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Appropriation 14847 Property Previously Devoted to Public Use
148 47(1) k. InGeneral. Whether particular use of property is public use, for
purposes of determining municipality's authority to condemnproperty,is public policy inquiry and is highly dependent on specific facts
andcircumstances of each particular case. [6] Eminent Domain
148 13 148Eminent Domain 148I Nature, Extent, and Delegation of Power
148 12Public Use 148 13 k. In General. Eminent Domain
148 14 148
Eminent Domain 148I Nature, Extent, and Delegation of Power148 12
Public Use 148 14 k. Extent of Use or Benefit.Under condemnation
law, " public use ...
32. C Norton v. City of Gainesville,211 Ga. 387, 86 S.E.2d 234, Ga., February 16, 1955 (NO.
18829)
...property to public use, the municipality may be enjoined byany
person interested. [3] Dedication 119 57119 Dedication 119II
Operation and Effect 119 56 Use of Property 119 57 k. InGeneral. Where municipality dedicates property to public use,
suchproperty may be put to all customary uses within definition of
the use.[4] Dedication 119 64 119 Dedication 119II Operation
and Effect119 64 k. Misuser or Diversion. Where municipality dedicatesproperty to public use, any use which is inconsistent or whichsubstantially and materially interferes with use of the property
forparticular use for which it was dedicated will constitute a
misuser ordiversion. [5] Municipal Corporations 268 721(1)
268 Municipal
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Corporations 268XI Use and Regulation of Public Places,Property, and
Works 268XI(C) Public Buildings, Parks, and Other PublicPlaces and
Property 268 721 ...
33. H Timmons v. South Carolina Tricentennial Commission,254 S.C. 378, 175 S.E.2d 805, S.C., July 07, 1970 (NO. 19074)
...Uses or Purposes 148 41 k. Parks and Reservations.Where land
being taken by Tricentennial Commission would remain vested
in stateand where state and its delegated agency were precluded from
any use ofproperty other than permanent one as public park by virtue of
contractwith federal department and statute, taking was permanent in
nature andthere was no basis for enjoining taking on ground that taking
was for atemporary use, notwithstanding that 806 Tricentennial
Commission wouldterminate on specific date. [9] Eminent Domain 148 13
148 EminentDomain 148I Nature, Extent, and Delegation of Power
148 12 PublicUse 148 13 k. In General. Lands cannot be condemned for
other than apublic use. [10] Eminent Domain 148 13 148 Eminent
Domain 148I
Nature, Extent, and Delegation of Power 148 12 Public Use148 13
k. In General. Eminent Domain 148 198(2) 148 EminentDomain 148III
...
34. H Emerald People's Utility Dist. v. Pacific Power & Light Co.,76 Or.App. 583, 711 P.2d 179, Or.App., December 04, 1985
(NO. CA
A30473, E83-1726)
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...public utility. The Circuit Court, Douglas County, Don H.Sanders, J., dismissed the complaint, and district
appealed. The
Court of Appeals, Buttler, P.J., held that public utility districts donot have authority to take existing public or private powergenerating
facilities designated dedicated to public use. Affirmed. 1.Eminent
Domain 47(1)
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public use; the stream revisions were not for a public use (forexample, a road or park). Rather, like Manufactured
Housing and [In re ] City of Seattle, [96 Wash.2d 616, 638 P.2d 549
(1981) ],the logging provided a public benefit but was not a public use.3
Dickgieser, 118 Wash.App. at 447, 76 P.3d 288. "Viewedanother way,"
the court said, "the Department logged this property to produceincome
and manage its assets. It did not log the property to createan area
for public use. Thus, the logging was not a public use." Id.
at 447, 76 P.3d 288. 3 Initially, we note that the Departmentdoes not
dispute that logging of state forest lands is a public use ...
37. H Hoffman Family, L.L.C. v. City of Alexandria,272 Va. 274, 634 S.E.2d 722, 2006 WL 2638364, Va.,
September 15, 2006(NO. 052506)
...public use. Moreover, the record contains manifestevidence of
the public purpose of the proposed use, namely, the City'soperation of
this sewer system component. 8 Finally, we find no merit inHoffman's
argument that the principles enunciated in Phillips v. Fosterpreclude the City's condemnation of Hoffman's
property. There, we
held unconstitutional as applied a statute permitting privateproperty
owners to condemn for their own use the private property ofanother.
Phillips, 215 Va. at 544, 211 S.E.2d at 94 . 8 In that case,certain
developers sought to condemn an easement across adjoiningproperty to
provide drainage for their proposed private housingsubdivision. Id.
at 544, 211 S.E.2d at 94. We focused our review on
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the questionwhether there was a public use of the land to be condemned
thatpredominated over the developers' private use of the land. ...
38. Red FlgTexas Eastern Transmission Corp. v. Wildlife Preserves,Inc.,
89 N.J.Super. 1, 213 A.2d 193, N.J.Super.L., August 26, 1965(NO.
L-13684)
...public use but was not precluded from selling those landsand
pursuing its laudable purposes on other lands did not raisecorporation
and its lands to level of 'prior public use' precludingcondemnation
of those lands. Motion granted. EMINENT DOMAIN 47(1)
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characterization as "public property used exclusively for apublic
purpose," within meaning of property tax exemptionstatute; although
farmer was profiting from use of land, village had effectivelyretainedfull control over use of property and allowed farmer to farm
property...
41. Yel FlgAmerican Trading Real Estate Properties, Inc. v. Town ofTrumbull,
215 Conn. 68, 574 A.2d 796, 1990 WL 64062, Conn., May 15,
1990 (NO.13811)
...property for public use. 4 Although the trial court did notexplicitly define the term public use, the memorandum 801 of
decisionimplicitly reveals that the court held that the defendant could
claimimmunity from adverse possession only if it could demonstrate
actualuse of the property as a roadway. The court stressed
that "[i]t isnot enough for the municipality to hold the property for the
publicuse; something more, that is to say, actual public use, must
beshown." (Emphasis in original.) In reaching its
conclusion that"the defendant Town of Trumbull has failed to show the strip
was usedby the public or dedicated for public use after the property wasacquired in 1937," the trial court apparently relied upon the
factualshowing that the roadway was impassable and had never been
used foraccess to the park. ...
42. C Florida East Coast Ry. Co. v. Broward County,
421 So.2d 681, Fla.App. 4 Dist., November 03, 1982 (NO. 82-
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563)
...Property Subject to Appropriation 148 47 PropertyPreviously
Devoted to Public Use 148 47(1) k. In General. Underthe priorpublic use doctrine, the property devoted to a public use
cannot betaken and appropriated to another or different public use
unless theauthority to do so has been expressly given by the legislature or
maybe necessarily implied. [2] Eminent Domain 148 47(1)
148 Eminent
Domain 148I Nature, Extent, and Delegation of Power 148 44Property Subject to Appropriation 148 47 Property PreviouslyDevoted to Public Use 148 47(1) k. In General. ...
43. Yel FlgFoeller v. Housing Authority of Portland,198 Or. 205, 256 P.2d 752, Or., April 29, 1953
...Public Use 148 14 k. Extent of use or benefit. Term "public
use" as used in constitutional provision that private propertyshall
not be taken for "public use" without just compensationmeans a more
intimate relationship between the public and property which hasbeen
acquired under power of eminent domain than is denoted byterms such as
"public benefit" and "public utility" . ORS Const. art. 1, s 18 .
[4] Eminent Domain 148 13 148 Eminent Domain148I Nature, Extent,
and Delegation of Power 148 12 Public Use 148 13 k.In general.
"Public use" within meaning of constitutional provision thatprivate
property shall not be taken for "public use" without justcompensation
demands that the public's use and occupation of the propertybe
direct, and if someone other than the public uses the property
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factthat public will share in benefits does not suffice. ...
44. H Pacific Power and Light Co. v. Surprise Valley ElectrificationCorp.,985 F.2d 573, 1993 WL 13373, Unpublished Disposition, C.A.9
(Cal.),January 25, 1993 (NO. 89-15524, 89-15713, 89-16010)
...public use, that the body condemning the property beauthorized to
do so, and that the property to be condemned be necessary tocarry out
a project required by public interest or necessity. SeeCal.Civ.P.Code ss 1240.010-1240.030. We consider these
requirementsin slightly different order. 2 The City has statutory authority tocondemn property for use as a public utility. "The
legislative bodymay acquire private property by condemnation or otherwise
when it isnecessary to take or damage such property
for: . (f) any otherpurposes authorized by law. " Cal.Gov't Code s
40404 (emphasisadded). "Any municipal corporation may acquire,
construct, own,operate, or lease any public utility." Cal.Pub.Util.Code s
10002 . 2...
45. Yel FlgTown of Harrison v. Westchester County,13 N.Y.2d 258, 196 N.E.2d 240, 246 N.Y.S.2d 593, N.Y.,
December 30,1963
...property of county was exempt from taxation by town was notres
judicata with respect to subsequent action involving questionwhether
certain portions of county-owned airport property, consisting of
land
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and hangars, were exempt, where hangars were not inexistence at time
of prior adjudication which concerned tax status for yearsearlier than
those involved in subsequent proceeding. [2] Taxation371 2315371 Taxation 371III Property Taxes 371III(F) Exemptions
371III(F)1In General 371 2315 k. Property of Local Government or
Other PublicCorporations. (Formerly 371k217 , 371k17 ) "Held for
public use" ...
46. Yel FlgLemon v. Mississippi Transp. Com'n,735 So.2d 1013, 1999 WL 161328, Miss., March 25, 1999 (NO.97-IA-01480-SCT, 97-IA-01481-SCT)
...property shall not be taken or damaged for public use, excepton
due compensation being first made to the owner or ownersthereof, in a
manner to be prescribed by law; and whenever an attempt ismade to
take private property for a use alleged to be public, the questionwhether the contemplated use be public shall be a judicial
question,and, as such, determined without regard to legislative assertion
thatthe use is public. 7 Section 17 has consistently been
interpreted bythis Court to require that a court determine whether a taking is
for a
public use. See Mayor v. Thomas, 645 So.2d 940, 942(Miss.1994)
(whether there is a public use for the property is a judicialquestion
without regard to legislative assertions that the use is public);Texas Gas Transmission Corp. v. Council, 199 So.2d 247, 249(Miss.1967) ...
47. C David Jeffrey Co. v. City of Milwaukee,
267 Wis. 559, 66 N.W.2d 362, Wis., October 05, 1954
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who availthemselves of it. 'A public use, whether for all men or a class,
isone not confined to privileged persons. The smallest street
is 897...
49. Yel FlgJonesboro Area Athletic Ass'n, Inc. v. Dickson,227 Ga. 513, 181 S.E.2d 852, Ga., April 22, 1971 (NO. 26378)
...property was held by city in proprietary or governmentalcapacity,
whether it had been previously dedicated to public use,
whether, ifso, public use had been abandoned or property had become
unsuitable orinadequate for purpose to which it was dedicated, and whether,
if leasewas valid, city exercised good faith in cancelling it. Code ss
69-312, 69-612.2 . [2] Municipal Corporations 268 722
268 MunicipalCorporations 268XI Use and Regulation of Public Places,
Property, andWorks 268XI(C) Public Buildings, Parks, and Other Public
Places andProperty 268 722 k. Grants of Rights to
Use Public Property inGeneral. Charter of City of Jonesboro did not authorize lease toprivate party of property held by city in its governmental
capacity forpublic use. [3] Municipal Corporations 268 721(3)
268 MunicipalCorporations 268XI ...
50. H Bloodgood v. Mohawk & H.R.R. Co.,18 Wend. 9, Lock. Rev. Cas. 118, 1837 WL 2871, 31 Am.Dec.
313, N.Y.,1837
...uses highly advantageous to the public. On what principle
shall a
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law, transferring the title from the owner to his moreenterprising
neighbor, on the payment of a just compensation, bepronounced
unconstitutional, if using property beneficially to the public is tobe deemed a public use of it? The remark of an eminent jurist,(2
Kent's Comm., 340,) that "it must undoubtedly rest in thewisdom of
the legislature to determine when public uses require theassumption
of private property; and if they should take it for a purpose notof a
public nature, as if the legislature should take the property of A.
andgive it to B., the law would be unconstitutional and void," ...
51. Yel FlgSFPP, L.P. v. Burlington Northern & Santa Fe Ry. Co.,121 Cal.App.4th 452, 17 Cal.Rptr.3d 96, 2004 WL 1752966, 34
Envtl. L.Rep. 20,066, 04 Cal. Daily Op. Serv. 7111, 2004 Daily Journal
D.A.R.9615, Cal.App. 5 Dist., August 05, 2004 (NO. F043498)
...Property Already Appropriated to Public Use 9 The LawRevision
Commission addressed many topics, including thecondemnation of
property already appropriated to public use: 9 "Existing lawpermits
to a limited extent the acquisition by eminent domain ofproperty
already appropriated to public use. TheCommission believes,
however, that joint use of property appropriated to public useshould
be encouraged in the interest of the fullest utilization of publicland
and the least imposition on private ownership. To this end, itrecommends that any authorized condemnor be permitted to
acquire, foruse in common, property already devoted to public use if the
joint
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uses are compatible or can be made compatible withoutsubstantial
alteration of the preexisting public use. 9 ...
52. Yel FlgCity of Norton v. Lowden,84 F.2d 663, C.C.A.10 (Kan.), July 13, 1936 (NO. 1405)
...property for public use inheres in sovereign, is essential topublic welfare, and can be neither contracted away nor
surrendered. [6]Eminent Domain 148 47(1) 148 Eminent Domain
148I Nature, Extent,and Delegation of Power 148 44 Property Subject to
Appropriation148 47 Property Previously Devoted to Public Use
148 47(1) k.In General. Power to take private property for public use
applies toproperty already devoted to one public use. [7] Eminent
Domain 14847(5) 148 Eminent Domain 148I Nature, Extent, and
Delegation of Power148 44 Property Subject to Appropriation 148 47 PropertyPreviously Devoted to Public Use ...
53. H Hallock v. State,39 A.D.2d 172, 332 N.Y.S.2d 762, N.Y.A.D. 3 Dept., June 01,
1972
...property in fee rather than appropriating an easement toremove sand
and gravel therefrom, constituted an appropriation that wasnecessary
for its purposes 175 and for a public use, and whether thecourt may
review its determination. The Authority is empowered by statuteto
acquire any property that it finds necessary or convenient tocarry out
its purposes and '* * * the Authority may find and determinethat such
property is required for a public use * * *' . ( Public Authorities
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Law, s 1007 ; Highway Law, s 30 .) There is no question thatthe
Authority, in its construction of the Blenheim-Gilboa PumpedStorage
Power Project 766 was engaged in a construction projectdedicated to apublic use, and that any materials taken from the appropriatedproperty would be used in the construction project, and thus
their usewould be for a public purpose. ...
54. Yel FlgGravelly Ford Canal Co. v. Pope & Talbot Land Co.,36 Cal.App. 556, 178 P. 150, Cal.App. 3 Dist., March 21, 1918
(NO. CIV.1802, SAC. 2741)
...property for public uses, shall be applicable to the provisionsof
this act." "While the courts have not been in agreement on theprecise
meaning of the term ' public use,' it has been held, without asingle
dissenting voice, that it does not lie in the power of a state toauthorize the taking of the property of an individual without hisconsent for the private use of another, even on the payment of
fullcompensation." 10 Ruling Case Law, p. 27. If, therefore,
property canbe taken only for a public use, either by an individual orcorporation, it becomes important to understand what is meant
by theterm "public use" and upon what condition water may be taken
for apublic use. The courts are not at one as to what constitutes
publicuse for which property may be taken. ...
55. H Corporation of San Felipe De Austin v. State,111 Tex. 108, 229 S.W. 845, Tex., April 06, 1921 (NO. 3320)
...Public land granted to the town of San Felipe de Austin for
use by
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exclusively for public purpose. Gen.Code, s 5351; Const. art.12, s 2
. [4] Taxation 371 2315 371 Taxation 371III Property Taxes371III(F) Exemptions 371III(F)1 In General 371 2315 k.
Property ofLocal Government or Other Public Corporations.(Formerly 371k217 )
Property lawfully owned and controlled by municipal corporationis "
public property" ...
57. Red FlgDickgieser v. State,118 Wash.App. 442, 76 P.3d 288, 2003 WL 22133432,
Wash.App. Div. 2,September 16, 2003 (NO. 28730-7-II)
...public schools is a public use. 3 In ManufacturedHousing, the
court found that maintaining housing for low income and elderlypeople
provided public benefit, but it was not a"public use." Manufactured
Hous., 142 Wash.2d at 371-72, 13 P.3d 183. Similarly,the court
found that the Westlake Project in Seattle, the goals of whichwere
retailing and public space, was in the public interest and had abeneficial use, but was not a public use. In re City of Seattle,96 Wash.2d 616, 625-27, 638 P.2d 549 (1981) . 291 3
Likewise, loggingstate land to fund public schools certainly benefits the
public. But
unlike the cases involving public utilities and transportation, theDepartment's activities here were not done for a public use. ...
58. H Fries v. Martin,154 P.3d 184, 2006 WL 3842113, 2006 UT App 514, Utah
App., December 29,2006 (NO. 20050026-CA)
...public road by the government." ). 3 [3] P 9 The
formal vacation
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16, 1976
...public use should not be taken for another public use unlessthe
reasons therefore are special, unusual or peculiar, where thesecondpublic use would not interfere with or destroy the public use
firstacquired, that limitation was not applicable; and that where theeasement sought by condemnation would not result in either a
limitationor discontinuance of service by the railroad in its use of the
subjectproperty, the condemnation would not result in an
'abandonment' of therailroad's property in contravention of the Interstate Commerce
Act.Affirmed. APPEAL AND ERROR 169
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whether the use is public or private, for which the land is soughtto
be taken. 4. EMINENT DOMAIN - Public Use - Definition. ...
62. Red FlgBauer v. Ventura County,45 Cal.2d 276, 289 P.2d 1, Cal., October 21, 1955 (NO.
L.A.23362)
...property, such improvements must follow natural drainage ofcountry
or natural stream. [11] Eminent Domain 148 13148 Eminent Domain
148I Nature, Extent, and Delegation of Power148 12 Public Use
148 13 k. In general. "Public use" withinconstitutional provision
that private property shall not be taken or damaged forpublic use
without just compensation is a use concerning wholecommunity or
promoting general interest in its relation to any legitimate objectof
government. West's Ann.Const. art. 1, s 14 . [12] EminentDomain 148
13 148 Eminent Domain 148I Nature, Extent, and Delegationof Power
148 12 Public Use 148 13 k. In general. ...
63. C Yadkin County v. City of High Point,217 N.C. 462, 8 S.E.2d 470, N.C., April 17, 1940 (NO. 233)
...public property and property devoted to a public use as wellas
private property, is for the General Assembly. [3] EminentDomain 148
47(1) 148 Eminent Domain 148I Nature, Extent, andDelegation of Power
148 44 Property Subject to Appropriation 148 47 PropertyPreviously Devoted to Public Use 148 47(1) k. In General.
A general
authorization to exercise the power of eminent domain will not
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sufficein a case where property already dedicated to a public use is
soughtto be condemned for another public use which is totally
inconsistentwith the first or former use, but in such case a specificlegislative
grant or one of unmistakable intent is required. [4] EminentDomain
148 47(1) 148 Eminent Domain 148I Nature, Extent, andDelegation of
Power 148 44 Property Subject to Appropriation148 47 Property
Previously Devoted to Public Use ...
64. C Wesleyville Borough v. Erie County Bd. of AssessmentAppeals,
676 A.2d 298, 1996 WL 255389, Pa.Cmwlth., May 16, 1996(NO. 2396 C.D.
1995)
...used by appellant as opportunity to raise new issues whichshould
have been included in appellant's principal brief. [5] Taxation371
2315 371 Taxation 371III Property Taxes371III(F) Exemptions
371III(F)1 In General 371 2315 k. Property of LocalGovernment or
Other Public Corporations. (Formerly 371k217 ) Use ofproperties owned
by municipalities and leased to county for courtrooms, waiting
roomsand offices for district justices constituted use for public
purpose,and therefore such properties were entitled to public-use
exemptionfrom real property taxation. 72 P.S. s 5020-204(a)(5) .
[6] Taxation371 2311 371 Taxation 371III Property Taxes
371III(F) Exemptions371III(F)1 In General 371 2311 k. Public Property
in General.
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(Formerly 371k213 ) ...
65. Yel FlgKelo v. City of New London, Conn.,545 U.S. 469, 125 S.Ct. 2655, 2005 WL 1469529, 60 ERC1769, 162 L.Ed.2d
439, 73 USLW 4552, 35 Envtl. L. Rep. 20,134, 05 Cal. DailyOp. Serv.
5466, 2005 Daily Journal D.A.R. 7475, 18 Fla. L. Weekly Fed.S 437, 10
A.L.R. Fed. 2d 733, U.S.Conn., June 23, 2005 (NO. 04-108)
...property only if the government owns, or the public has a
legalright to use, the property, as opposed to taking it for any publicpurpose or necessity whatsoever. At the time of the founding,dictionaries primarily defined the noun "use" as "[t]he act ofemploying any thing to any purpose." 2 S. Johnson, A
Dictionary ofthe English Language 2194 (4th ed. 1773) (hereinafter
Johnson). Theterm "use," moreover, "is from the Latin utor, which means 'to
use ,make use of, avail one's self of, employ, apply, enjoy,
etc." J.Lewis, Law of Eminent Domain s 165, p. 224, n. 4 (1888)
(hereinafterLewis). ...
66. Yel FlgPennsylvania Mut. Life Ins. Co. v. City of Philadelphia,242 Pa. 47, 88 A. 904, Pa., June 27, 1913
...property appropriated outside the parkway, including plaintiff'sproperty, to the telephone company. [1] The view we take of
this caserequires us to determine the single question whether the
purpose or usefor which the city intends to take the plaintiff's land is a publicuse within the constitutional provision permitting its
appropriationunder the power of eminent domain. Under our former
Constitutions it
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was declared that no man's property can be justly taken fromhim or
applied to public use without his consent and justcompensation being
made. The present Constitution, however, provides thatprivateproperty shall not be taken or applied to public use without
authorityof law, and without just compensation being first made or
secured. ...
67. C Ward v. City of Jackson,266 So.2d 910, Miss., October 02, 1972 (NO. 47036)
...used for public purposes,' statute authorizing a municipalityholding title to property, which has not been purchased with
publicfunds and has not been used for governmental purposes, to
lease samedid not authorize city to lease land to private individual for
privatepurpose absent showing that the lease was incidential to use ofproperty for public purpose. Reversed and
remanded. MUNICIPALCORPORATIONS 722
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69. C Town of Oxford v. Town of Beacon Falls,183 Conn. 345, 439 A.2d 348, Conn., March 17, 1981
...used for a public purpose" within the meaning of the taxexemption.1 FN1. See People ex rel. Lawless v. City of Quincy, 395 Ill.
190,200, 69 N.E.2d 892 (1946) , where the court, in deciding that anairport was a public use, deduced the following rules as to
whatconstitutes a use for public purposes within the meaning of its
taxexemption statutes: "First, if the property is located within the
limits of the municipal corporation, and is devoted to the use ofthe
public as represented by the residents of that area, it is beingused
for public purposes; Second, if the property is located outsidethe
limits of the municipal corporation, it can only be considered asbeing
used for public purposes when it is open on equal terms to useby the
public generally, rather than being limited in its use to theinhabitants of the municipal corporation which owns the
property." ...
70. H Keegan v. City of Hudson,23 A.D.3d 742, 803 N.Y.S.2d 279, 2005 WL 2875305, 2005
N.Y. Slip Op.08181, N.Y.A.D. 3 Dept., November 03, 2005 (NO. 97945)
...Property owner petitioned for review of town's determinationcondemning his property to alleviate urban blight and constructaffordable housing. 3 Holding: The Supreme Court
, AppellateDivision , Crew III , J.P., held that condemnation of property
wouldserve public use. Determination affirmed. 1. Eminent
Domain 13It is axiomatic that a proper exercise of the power of eminent
domain
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requires that a public use, benefit or purpose be served by theproposed acquisition. 2. Eminent Domain 18.5 Where
a proposedcondemnation is for the purpose of constructing housing, a
public useis generally found in and of itself if the project will eliminate orprevent slums or blighted areas, even if the property is
subsequentlydeveloped privately, or the project will provide low-rent housing.
3.Eminent Domain 18.5 ...
71. Yel FlgKelo v. City of New London,
268 Conn. 1, 843 A.2d 500, 2002 WL 32372999, Conn., March09, 2004 (NO.
16742)
...PUBLIC USE UNDER THE STATE AND FEDERALCONSTITUTIONS 9 We next
address the principal issue in this appeal, which is the plaintiffs'claim that the trial court improperly concluded that the use of
eminentdomain for economic development does not violate the
public useclauses of the state and federal
constitutions. Specifically, theplaintiffs contend that: (1) economic development as
contemplated inchapter 132 of the General Statutes is not a public use under
thestate and federal constitutions; (2) even if economic
development is a
public use, the condemnations in the present case do notpromote
sufficient public benefit to pass constitutional muster; and (3)the
condemnation of parcels 3 26 and 4A lack a reasonableassurance of
future public use because private parties retain control over theparcels' use. We address each contention in turn. A ...
72. H City of Borger v. Garcia,
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290 S.W.3d 325, 2009 WL 1098091, Tex.App.-Amarillo, April23, 2009 (NO.
07-08-0444-CV)
...property to prevent flooding of other neighborhood propertyowners,appellees would have stated a claim for a taking that would
withstand aplea to the jurisdiction. However, appellees allege no
facts thatwould establish that the City used their property to protect otherneighborhood property owners. Much as is the case
with appellees'assertion that their property damage arose from a public work,
appellees appear to conclude that the City diverted water ontotheir
property based solely on the fact that their property sustaineddamage
while other neighborhood properties did not. Becauseappellees fail
to allege any facts to establish that flood waters were divertedonto
their property to protect the property of others, we conclude thatappellees have failed to allege a public use for which their
propertywas taken. 4 [17] ...
73. C Newcomb v. Smith,2 Pin. 131, 1849 WL 1879, 1 Chand. 71, Wis., January Term
1849
...uses highly advantageous to the public. On what principle
shall alaw, transferring the title from the owner to his more
enterprisingneighbor, on the payment of a just compensation, be
pronouncedunconstitutional, if using property beneficially to the public is
tobe deemed a public use of it? The remark of an eminent jurist
(2Kent's Com. 340), that 'it must undoubtedly rest in the wisdom
of the
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legislature to determine when public uses require theassumption of
private property; and if they should take it for a purpose not of apublic nature, as if the legislature should take the property of A.
and give it to B., the law would be unconstitutional and void,' ...
74. Yel FlgBailey v. Myers,206 Ariz. 224, 76 P.3d 898, 2003 WL 22245402, 409 Ariz. Adv.
Rep. 36,Ariz.App. Div. 1, October 01, 2003 (NO. 1 CA-SA 02-0108)
...public benefits must substantially outweigh the privatecharacter of
the end use so that it may truly be said that the taking is for ause
that is "really public." The constitutional requirement of "public
use" is only satisfied when the public benefits andcharacteristics of
the intended use substantially predominate over the privatenature of
that use. 6 P 24 There are many factors that may beconsidered in
evaluating the private or public character of the intended use ofproperty. For example, for what purpose or purposes will theproperty be used? Will title to the property be held by a publicentity? If one or more private parties will own or lease theproperty, will the property be used for private profit, non-profit orpublic purposes? Will the end use of the property
provide needed
public services? ...
75. Yel FlgCounty of Wayne v. Hathcock,471 Mich. 445, 684 N.W.2d 765, 2004 WL 1724875, Mich., July
30, 2004(NO. 124070, 124073, 124076, 124071, 124074, 124077,
124072, 124075,124078)
...Public Use 148 13 k. In General. The exercise of
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third grounds. They argue that the expansion project isnot "for
public use" because Hedreen's participation creates animpermissible
mix of public and private uses. ...
77. C 23 Am. Jur. 2d Dedication s 61American Jurisprudence, Second Edition Database updated
August 2011Alan J. Jacobs, J.D. Dedication VI. Operation and Effect ofDedication s 61. Right of dedicatee to control and regulate use
...VI. Operation and Effect of Dedication Topic SummaryCorrelation
Table References s 61. Right of dedicatee to control andregulate use
West's Key Number Digest West's Key NumberDigest, Dedication k 59.1
60 62 A state or municipality holds dedicated property, not in aproprietary, but in a sovereign or corporate, capacity in trust for
theuse to which it was dedicated.[FN 1 ] Though much must be left
to thediscretion of the legislative body as to the best manner of
regulatingthat use, its power of control over such property must be
exercised inconformity with the purpose of the dedication.[FN 2] One who
dedicatesproperty to a public use necessarily submits to public
regulation, and
if the public use is local, then to local regulation, unless somesuperior authority intervenes.[FN 3 ] A public body cannot
destroy thetrust created by a dedication of land to a specific, limited, anddefinite public use by diverting the property to some other
purposeinconsistent with the restrictions accompanying the
dedication.[FN 4 ]For example, a city may not place a highway on land dedicated
to public
use as a "common," "promenade," or "landing," implying use as
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park-likepublic walking place.[FN 5] Property dedicated to public use
generallycannot be alienated[FN 6 ] or leased[FN 7 ] for purposes
foreign to thededication.[FN 8] If property is dedicated to a general publicuse,
such as for a park or square, the legislature or municipality mayby
proper act designate the particular public use to which theproperty
will be devoted,[FN 9 ] and may change the purpose ofdedication.[FN
10] [FN 1] Seltenreich v. Town of Fairbanks, 13 Alaska ...
...3 Sioux City, Iowa, v. Missouri Valley Pipe Line Co., 46 F.2d819
(N.D. Iowa 1931) [FN 4] Big Sur Properties v. Mott, 62 Cal.App. 3d 99,
132 Cal. Rptr. 835 (1st Dist. 1976) City of Chicago v. Ward, 169...
78. Yel FlgWallace v. Metropolitan Pier and Exposition Authority,302 Ill.App.3d 573, 707 N.E.2d 140, 236 Ill.Dec. 295, 1998 WL
897081,Ill.App. 1 Dist., December 23, 1998 (NO. 1-98-1956)
...Use of Public Buildings and Other Property 268 851 k.Parks and
Public Squares and Places. Local Government andGovernmental Employees
Tort Immunity Act provides public entities with an affirmative
defenseagainst simple negligence claims arising from conditions
present on anypublic property intended or permitted to be used for
recreationalpurposes, regardless of the primary purpose of the
property. S.H.A.745 ILCS 10/3-106 . [7] Municipal Corporations 268 851 268Municipal Corporations 268XII Torts 268XII(E) Condition or
Use of
Public Buildings and Other Property 268 851 k. Parks and
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PublicSquares and Places. ...
79. C 26 Am. Jur. 2d Eminent Domain s 103American Jurisprudence, Second Edition Database updatedAugust 2011
Laura Dietz, J.D., Glenda K. Harnad, J.D., of the National LegalResearch Group, Inc., Alan J. Jacobs, J.D., Jack Levin, J.D.,
JeffreyJ. Shampo, J.D., Eric Surette, J.D., Lisa J. Zakolski,
J.D. EminentDomain I. Nature and Extent of Power E. Property Subject to
Taking
2. Property Devoted to Public Use s 103. Generally
...Levin, J.D., Jeffrey J. Shampo, J.D., Eric Surette, J.D., Lisa J.Zakolski, J.D. I. Nature and Extent of Power E. Property
Subject toTaking 2. Property Devoted to Public Use Topic Summary
CorrelationTable References s 103. Generally West's Key Number Digest
West's KeyNumber Digest, Eminent Domain k 47(1) , (7) Ordinarily, land
devotedto one public use cannot be taken for another inconsistent
public useunless legislation authorizes such taking.[FN 1 ] However,
where thepower of eminent domain is being exercised by the sovereign
itself,such as the state or the federal government, legislative
authority may
not be required,[FN 2 ] and property devoted to a public usemay be
taken by authority of the legislature for a different public useeven
if the earlier enterprise is thereby wholly destroyed.[FN 3]Under the
"prior-public-use doctrine," a municipality has no power tocondemn
property already dedicated to a public use, absent powerconferred by
the legislature expressly or by necessary implication.[FN 4 ]
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Generally, the prior-public-use doctrine is applicable betweenentities
with equally delegated powers of eminent domain.[FN 5 ] Theprior-
public-use doctrine should be limited to those cases involvingcompeting condemnors, as it is for the condemning entity todetermine
whether privately owned property, although presently used forpublic
benefit, should be condemned for a competing public use.[FN 6] The
doctrine of prior public use does not clothe the court with powerto
weigh the communal benefit of the proposed use against the
present useof property sought to be condemned, as it is, rather, a rule of
lawlimited to controversies between two entities each possessing adelegated, general power of eminent domain.[FN 7]
Observation: Thedoctrine of prior public use, if applicable, does not depend on
whetherthe prior use was acquired by condemnation or purchase.[FN 8]
When alandowner resisting condemnation possesses no delegated,
general powerof eminent domain, the question of the prior-public-use doctrine
doesnot arise.[FN 9] CUMULATIVE SUPPLEMENT Cases:
Restricted zone of waterauthority's new raw water intake works did not practically
destroy ormaterially interfere with river authority's ability to use the lake
forhydroelectric power generation, as would require the water
authority todemonstrate that its purpose for condemnation of ...
80. Red FlgSt. Charles Parish School Bd. v. P & L Inv. Corp.,674 So.2d 218, 1996 WL 266568, 110 Ed. Law Rep. 500, 95-
2571 (La.
5/21/96), La., May 21, 1996 (NO. 95-C-2571)
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...Public Use 119 20(2) k. Knowledge and Consent of
Owner, andNature of Use in General. Owner of privately owned road
abuttingproperty of school did not impliedly dedicate such road topublic use,
despite fact that public used road and parish maintainedroad; owner
neither consented to dedication nor subdivided property atissue into
lots, and school board knew that property belonged to ownerand had not
been dedicated to public use at time school board purchased
adjoiningproperty. [19] Dedication 119 20(2) 119 Dedication
119I Nature andRequisites 119 16 Acts Constituting Dedication
119 20 Abandonmentto or Acquiescence in Public Use 119 20(2) k. Knowledge
and Consentof Owner, and Nature of Use in General. ...
81. C Concord R. R. v. Greely,17 N.H. 47, 1845 WL 2063, N.H., 1845
...property of A, and giving it to B as his private property, wasan
application of it to public uses, no one would contend that sucha
declaration made that public, which, in its nature and object,was
private. 6 Upon the question what is and what is not apublic use,
various considerations have been urged, both before us and indifferent
parts of the Union. It has been said that property could not beproperly alleged to be taken for the public use, unless, when
taken,it should belong to the public as owning it; that the wordssubstantially mean, that the property should be changed, by the
act of
application, and should belong to the community at large. ...
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82. Yel FlgE & J Holding Corp. v. Noto,126 A.D.2d 641, 510 N.Y.S.2d 899, N.Y.A.D. 2 Dept., January
20, 1987(NO. 4117 E)
...property already devoted to another public use; (2) priorpublic
use doctrine applies to closing of public highway; (3) lawsenabling
subordinate government agencies to discontinue roadwaysmust be adhered
to; and (4) road which was still in active use could not be
closed onthe grounds that it was useless, abandoned, or no longer
necessary.Resolution annulled. 1. Eminent Domain 47(1)
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land. [12] Eminent Domain 148 47(1) 148 EminentDomain 148I
Nature, Extent, and Delegation of Power 148 44 PropertySubject to
Appropriation 148 47 Property Previously Devoted toPublic Use 14847(1) k. In general. City had authority to condemn land for
purpose ofconstructing municipally owned 46 water system, even
assuming thatlandowner had taken sufficient actions toward providing water
forpublic so as to render land already devoted to public purpose.
[13]
Eminent Domain 148 47(1) 148 Eminent Domain148I Nature, Extent,
and Delegation of Power 148 44 ...
84. Yel FlgEdens v. City of Columbia,228 S.C. 563, 91 S.E.2d 280, S.C., January 30, 1956 (NO.
17111)
...property shall not be taken for private use without the consentof
the owner, nor for public use without just compensation beingfirst
made therefor.' Our controlling decisions are to the effect that'
public use' means just that and private property cannot betaken
except for public use, without the consent of the owner. Thefollowing is from Riley v. Charleston Union Station Co., 71 S.C.
457,51 S.E. 485, 496 : 'It is not easy to give a definition of ' publicuse' which will be adequate to cover every case that may
properly fallwithin the term, and this case does not call for an attempt to
definethe term. Some cases take the very broad view that 572 '
public use' is synonymous with ' public benefit.' A more restricted view,however, would seem to better comport with the due protection
of
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private property against spoliation under the guise of eminentdomain.
...
85. Yel FlgVillage of Hicksville v. Lantz,153 Ohio St. 421, 92 N.E.2d 270, 41 O.O. 424, Ohio, April 26,
1950 (NO.31905)
...property to a public use has the same effect as an expressgrant of
such property to such a use; and the law requires that there beclear
evidence of owner's intention to dedicate such property to sucha use;
and the same rule applies when a municipal corporation isowner of such
property. Gen.Code, s 3714. [6] Dedication 119 20(1) 119Dedication 119I Nature and Requisites
119 16 Acts ConstitutingDedication 119 20 Abandonment to or Acquiescence in
Public Use 11920(1) k. In General. Ordinarily a municipal corporation may use
andpermit use of its property for a public purpose without therebyindicating an intention to dedicate that property in perpetuity forthat public purpose. [7] Dedication 119 20(1)
119 Dedication 119INature and Requisites 119 16 Acts Constituting Dedication
119 20Abandonment to or Acquiescence in Public Use
119 20(1) k. In
General. ...
86. C Styles v. Village of Newport,76 Vt. 154, 56 A. 662, Vt., January 07, 1904
...Property Taxes 371III(F) Exemptions 371III(F)1 In General371
2315 k. Property of Local Government or Other PublicCorporations.
(Formerly 371k217 ) A water system of a municipality, used in
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furnishing water to the municipality for fire protection and othermunicipal purposes, and to individual citizens for domestic
purposesfor a certain compensation, was employed for a public use,
within themeaning of V.S. 362 , exempting property so used fromtaxation. 190
Taxation 371 2315 371 Taxation 371III Property Taxes371III(F)
Exemptions 371III(F)1 In General 371 2315 k. Propertyof Local
Government or Other Public Corporations. (Formerly 371k217) That part
of the system so used lying without the corporate limits was
likewiseexempt. 190 Taxation 371 2315 371 Taxation
371III Property Taxes371III(F) Exemptions 371III(F)1 In General 371 2315 ...
87. C Cleveland v. City of Detroit,322 Mich. 172, 33 N.W.2d 747, Mich., September 08, 1948
(NO. 48)
...use by city of realty, sought to be condemned, for subsurface748
bus terminals for improvement of city's street railway system,was a
public use, was judicial. [9] Eminent Domain 148 20(6)148 Eminent
Domain 148I Nature, Extent, and Delegation of Power 148 16Particular Uses or Purposes 148 20 Railroads
148 20(6) k. Street
Railroads. The use of realty, which city sought to condemn forconstruction thereon of subsurface bus terminals for
improvement ofcity's street railway system, was a "public use." [10] EminentDomain 148 221 148 Eminent Domain 148III Proceedings
to TakeProperty and Assess Compensation 148 213 Assessment by
Jury 148221 k. Questions for Jury. The question of the necessity of
acquiring
realty by condemnation for public use is one for jury of
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freeholders.[11] Eminent Domain 148 14 148 Eminent Domain
148I Nature, Extent,and Delegation of Power 148 12 ...
88. C Community College of Delaware County v. Board ofAssessment and
Revision of Taxes, Delaware County,5 Pa.Cmwlth. 487, 290 A.2d 432, Pa.Cmwlth., May 03, 1972
...property used to conduct public educational program fromlocal
taxation. The Commonwealth Court, No. 265
C.D.1971, Rogers, J.,held statute governing exemptions from local taxation and
providingexemption for 'all other public property used for public
purposes'and constitutional provision authorizing it provide exemption
only forproperty publicly owned as well as publicly used rather thanexemption for all property used for public ...
89. C Varner v. Martin,21 W.Va. 534, 1883 WL 3202, W.Va., April 21, 1883
...property can not be taken with or without compensationfor private use. (p. 548.) 1 2. Under our Constitution privateproperty can be taken only for public use, and then only upon
justcompensation being paid or secured to be paid. (p. 551.) 1 3.
Whetherprivate property should be taken for the direct and immediate
use ofthe public is a question for the Legislature to determine, and
when sotaken and used, the title of the property condemned is not
transferredto a private individual or corporation, but remains in the publicdirectly. The courts can not sit in judgment upon the publicexigencies, which demand this exercise of the right of eminent
domain;
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this being in such case solely a question for the Legislature. (p.552.) 1 ...
90. Yel FlgSachem's Head Ass'n v. Board of Tax Review of Town ofGuilford,190 Conn. 627, 461 A.2d 995, Conn., July 12, 1983 (NO.
11020)
...property owned by specially chartered municipal corporation,and
municipal corporation appealed. The Superior Court, NewHaven, James
P. Doherty, State Referee, reserved matter for advice of
Supreme Court.The Supreme Court, Parskey, J., held that: (1) real property
locatedwithin limits of specially chartered municipal corporation, which
wasopen to inhabitants of corporation and their guests as public
beaches,parks, and playground area, but which was not open to other
residentsof town in which specially chartered municipal corporation was
locatedwas being used for public purposes of municipal corporation,
but (2)such use did not exempt real property of municipal corporation
fromtaxation by town. Questions answered. 1. Taxation 217
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Public UseDoctrine (1990), 17 B.C.Envtl.Affairs L.Rev. 893, 896; Arena,
TheAccommodation of "Occupation" and "Social Utility" in Prior
Public UseJurisprudence (1988), 137 U.Pa.L.Rev. 233 . 2 {P11} Worthington
asserts that the constitutional status of home rule precludesapplication of the prior public use doctrine to preclude it fromtaking property within its boundaries through eminent
domain. Wedisagree. 3 {P 12} In Blue Ash, the court applied the prior
publicuse doctrine in a case where a city attempted to condemn
property itowned outside its corporate limits pursuant to Section 4, ArticleXVIII, Ohio Constitution , commonly called the Utility 923
Clause. 2...
92. C Housing Authority of City of Fort Lauderdale v. State, Dept.of
Transp.,385 So.2d 690, Fla.App. 4 Dist., June 18, 1980 (NO. 78-1980)...property devoted to a public use cannot be taken 691 andappropriated to another or different public use by a condemnor
to whomthe power of eminent domain has been delegated unless the
legislativeintent to so take has been manifested in express terms or by
necessaryimplication. This is known as the doctrine of prior public use.
Simply stated, the rule denies exercise of the above power ofcondemnation where the proposed use will destroy an existing
publicuse or prevent a proposed public use unless the authority to do
so hasbeen expressly given by the legislature or must necessarily beimplied. . . . The doctrine of prior public use stems from therecognition that municipal and many private corporations
possessgeneral powers of condemnation delegated by the legislature.
...
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93. C Metcalf v. Black Dog Realty, LLC,200 N.C.App. 619, 684 S.E.2d 709, 2009 WL 3616609,
N.C.App., November03, 2009 (NO. COA08-1561)
...property was dedicated as both "a park and as a site for aCourt
House and County Offices." As we realize that thepublic grounds
surrounding a courthouse might be used in much the samemanner as a
public park, we do not necessarily consider these allegations
completely contradictory. 15 641 [29] [30] Even if we accept astrue
the Plaintiffs' allegations that the "[courthouse property] hasbeen
used for public purposes-primarily as a public park-for the last107
years," a county is not bound to continue to use real propertyin a
certain way just because it has used the property in thatmanner for
any particular period of time. All real property owned bya county
is by definition "dedicated to public use" simply by virtue of thefact that it is owned by a county. ...
94. H U.S. v. Ambrose,403 Md. 425, 942 A.2d 755, 2008 WL 441715, Md., February
20, 2008 (NO.
2 SEPT.TERM 2007)
...used by the public" in two statutory provisions defining keyterms
of s 16-303 (c): the definition of "highway," s 11-127 , and theprivate property provision, s 21-101.1 (b)(1). Md.Code
(1977, 2002Repl.Vol.), Transportation Article. 1 The District Court has
certifiedthe following questions for our consideration: 1 I. Do the terms
"
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used by the public" contained in the definition of "highway" in s11-127 and in the private roads provision of s 21-101.1(b)(1)
of theTransportation Article of the Maryland Code require the
unrestrictedright of the public to the use of the highway or private property,as
opposed to the fact of use of a highway or private property bythe
public? 1 ...
95. Yel FlgCity of New Haven v. Town of East Haven,35 Conn.Supp. 157, 402 A.2d 345, Conn.Super., October 17,
1977 (NO.151328, 151330, 151329)
...public use." C.G.S.A. s 13b-43 . [5] Eminent Domain148 47(1)
148 Eminent Domain 148I Nature, Extent, and Delegation ofPower 148
44 Property Subject to Appropriation 148 47 PropertyPreviously
Devoted to Public Use 148 47(1) k. In General.Statute granting
city power to take property by eminent domain for industrialpark did
not expressly or implicitly authorize condemnation of propertyalready
devoted to public use. C.G.S.A. s 8-193 . [6] EminentDomain 148
47(1) 148 Eminent Domain 148I Nature, Extent, andDelegation of Power
148 44 Property Subject to Appropriation 148 47 PropertyPreviously Devoted to Public Use 148 47(1) k. In General. ...
96. H Dubbs v. Board of Assessment Review of Nassau County,81 Misc.2d 591, 367 N.Y.S.2d 898, N.Y.Sup., March 19, 1975
...public was required to pay an admission charge for mostfunctions at
coliseum, where county only permitted private interests to use
coliseum
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for general benefit of public to whom facilities were open,county's
residents were obtaining full benefit for which coliseum wasintended,
and use of coliseum by private promoters was incidental to orcoincidental with enjoyment and occupation of coliseum bygeneral
public, coliseum was held for public use and thus exempt fromtaxation. Petition dismissed. TAXATION 186
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public use. [17] Dedication 119 45 119 Dedication 119I Nature
and Requisites119 45 ...
98. C Loughbridge v. Harris,42 Ga. 500, 1871 WL 2443, Ga., January Term 1871
...public use, and provision for just compensation has beenmade, yet
this is not a power which the Legislature can delegate toindividuals,
to erect mills or manufactories anywhere at their option, and in
theirjudgment take private property for their use. 190 Eminent
Domain 14811 148 Eminent Domain 148I Nature, Extent, and Delegation
of Power148 6 Delegation of Power 148 11 k. To individual. The
power toappropriate private property for public use, conferred by theconstitution upon a state legislature, cannot be delegated toindividuals. 190 Eminent Domain 148 13 148 Eminent
Domain 148INature, Extent, and Delegation of Power 148 12 Public Use
148 13k. In general. The law of eminent domain will not authorize the
takingof private property for any purpose other than that of
public use. 190Eminent Domain 148 37 148 Eminent Domain 148I Nature,
Extent, and
Delegation of Power 148 ...
99. C Arkansas State Highway Commission v. Alcott,260 Ark. 225, 539 S.W.2d 432, Ark., July 12, 1976 (NO. 76-79)
...public use. The Chancery Court, White County, JohnJernigan,
Chancellor, enjoined State Highway Commission from anyfurther
construction on or use of the tract involved, and the
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becausethere was no evidence this was a place children would
congregate. ...
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