law-eminent-domain | Houston eminent domain condemnation cases |
Texas Supreme Court condemnation cases |
Federal and state takings claims and compensation
Eminent domain has been described as one of the inalienable rights of sovereignty. State v. Ware, 86
S.W.3d 817, 821-22 (Tex. App.- Austin 2002, no pet.). It is the power to take private property for public
use. Id. at 822. However, the government cannot take private property without payment of the market
value for that property. Id. The Fifth Amendment provides private property may not be taken for public
use without just compensation. Id. (citing U.S. Const. amend. V). Under the Fifth Amendment, the term
"taken" is construed broadly to mean the deprivation of the former owner rather than the accretion of a
right or interest to the sovereign. United States v. Gen. Motors Corp., 323 U.S. 373, 378, 65 S. Ct. 357,
359, 89 L. Ed. 311 (1945). Under the Fifth Amendment "just compensation" means the full monetary
equivalent of the property taken. Almota Farmers Elevator and Warehouse Co. v. United States, 409
U.S. 470, 473, 93 S. Ct. 791, 794, 35 L. Ed. 1 (1973). The owner is to be put in the same position as he
would have occupied if his property had not been taken. Id. at 47-74, 93 S. Ct. at 794. Under this
concept, the owner is entitled to the fair market value of the property at the time of the taking. Id. at 474,
93 S. Ct. at 794. This fair market value is normally to be ascertained from what a willing buyer would pay
in cash to a willing seller. Id.
Appellant argues it is not required to compensate appellee for the loss of the billboard because, in
appellant's view, the billboard was not sufficiently attached to the real property and therefore remained
personal property, which is not compensable in an eminent domain proceeding. We disagree. In
Almota, the Supreme Court stated the government cannot refuse to provide fair compensation for
business improvements that are taken and dismiss the improvements as worth no more than scrap value
simply because it did not intend to use them. Almota, 409 U.S. at 475 n.2, 93 S. Ct. at 795 n.2. The
Supreme Court also determined a condemning authority cannot take advantage of an agreement
between a lessor and lessee designating an improvement made by the lessee as personal property.
Id. at 477 n.5, 93 S. Ct. at 796 n.5. The Supreme Court then went on to state "this rule . . . exists entirely
for the protection of the tenant, and cannot be invoked by the condemnor. If the buildings or fixtures are
attached to the real estate, they must be treated as real estate in determining the total award" Id.
Here, it is undisputed appellee held a twenty-year lease on part of the real property condemned by
appellant for a publicly financed road project. It is also undisputed appellee owned a billboard on the
leased property. Further, it is also undisputed that the base of the billboard was buried in asphalt twenty
feet deep in the ground. It is also undisputed appellant ordered appellee to remove the billboard from its
location to make way for the road project. Finally, it is undisputed appellee had to essentially destroy the
billboard in order to remove it from the property acquired by appellant for the road project. Accordingly,
we hold appellant, by forcing appellee to remove its billboard as part of the road project, took appellee's
private property thus entitling appellee to just compensation for the loss of that private property.
Accordingly, we overrule appellant's single issue on appeal and affirm the judgment of the trial court.
Having overruled appellant=s single issue on appeal, we affirm the trial court's final judgment.
Source: Harris County v. Clear Channel Outdoor, Inc. (Tex.App.- Houston [14th Dist.] Apr. 29,
2008)(Anderson) (eminent domain law, condemnation of billboard, takings claim)
AFFIRMED: Opinion by Justice Anderson
Before Justices Anderson and Boyce, Senior Justice Murphy
14-07-00226-CV Harris County, Texas v. Clear Channel Outdoor, Inc.
Appeal from County Civil Court at Law No 2 of Harris County
Trial Court Judge: Judge Gary Michael Block