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Acquisition of Rights-Of-Way by Condemnation

Patricia J. Winmill, Rights-of-Way: How Right is Your Right-of-Way?

In many of the western states, the legislatures have delegated eminent domain powers to private individuals and private entities for an assortment of purposes, including the acquisition of various types of rights-of-way.2 This paper addresses the more significant of the issues that can arise in a condemnation action brought by a private party for right-of-way purposes. Certain issues that are equally common to public and private condemnation actions, such as the compensation to be paid to the condemnee3 and the procedures applicable to a condemnation action,4 are not addressed.

This paper focuses on issues relating to the condemnation of private rights-of-way in the Intermountain states.5 By its nature, however, the law relating to private condemnations is uniquely local. It poses an array of important and complex questions of public policy, allocation of resources and the respective roles of governmental power and private property rights. With varying histories, people and circumstances, each of the states considered herein has answered these questions in different ways. Thus, it is not possible to provide a compendium of the condemnation laws of each these states, and no attempt has been made to do so. Instead, this paper provides an overview of some of the more important issues that commonly arise in these states and discusses some of the resolutions that have bee