June 13, 2022

Eminent Domain

Field with pipeline marker in view

What if you purchased your “little slice of heaven” only to find out that someone wants to run a pipeline smack dab through the center of it? At the Texas A&M Agrilife Extension seminar “Owning Your Piece of Texas: Key Laws Texas Landowners Need to Know,” Jacob Merkord with Marrs Ellis & Hodge had a few suggestions for tackling eminent domain.

Public Good

In Texas, the definition of “public good” is broadly defined when it comes to pipelines. Some private organizations are empowered to directly condemn properties, while others have a more circuitous route. Either way, it’s not likely that you can avoid condemnation. However, there are some actions you can take to mitigate this negative experience.

Some easements are unavoidable. Some are profitable!

Eminent Domain

The eminent domain procedure typically includes an initial and “final” offer. There is no requirement to respond. The Government will then sue the landowner, which is most times inevitable on the road to an equitable offer. Landowners should not be cowed or shamed by the filing of a lawsuit. This is part of the process.

A commission will be empaneled (often “friends” of the presiding judge) and they will hold a Special Commissioners Hearing on the condemnation. Landowners must file objections within approximately twenty days. This is a HARD DEADLINE.

Check List For Easements

  • Make sure any agreement is in writing
  • Require notice before the survey crew enters your property
  • Limit the timeline of the survey access
  • Require restoration of grounds. This includes “double-ditching” excavation where topsoil is positioned separately from diggings further down. This permits backfilling with the crushed rock and then reinstalling topsoil to maximize aesthetics and encourage regrowth of natural groundcover.
  • Include an indemnification clause in your agreement
  • Limit access during wet or muddy conditions
  • Require that gates be closed after and during access

Eminent Domain Checklist courtesy of Mr. Merkord

Calling in the Big Guns

While no one likes hiring attorneys, the landowner deserves to be represented by someone who knows the law and likely is familiar with the tactics of the utility prosecuting the condemnation. Your investment in counsel specializing in eminent domain actions will yield benefits in maximizing the benefit of a bad situation and minimizing the impact on your land.

Merkord notes that the objective (according to case law) of the judicial process in the condemnation context is to make the landowner whole. Thus, representation by an attorney who can cite case law and land market facts will be instrumental in getting the landowner just compensation. Per a City of Austin case: “The proper inquiry derives from the ‘willing buyer-willing seller test of market value,’ in which market value is a reflection of all factors that reasonably prudent buyers and sellers would consider in arriving at a sales price.”

Merkord finished his presentation with several examples where juries came closer to making the landowner whole than did the original offer. Of course, no landowner can really be made whole when they have invested their money and time into a homestead which stands in the way of condemnation. However, with careful preparation and counsel, they might reduce the sting of eminent domain battles.

JaMarrs Ellis & Hodge can be found at

Check out my other blog post on choosing a homestead property here.

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