TRIAL COURT EXCLUDES EVIDENCE THAT ITC WOULD NOT USE ACQUIRED RIGHTS TO FULLEST EXTENT ALLOWED BY LAW

In a partial taking case, Michigan law requires just compensation to be awarded based upon the assumption that the agency will use its newly acquired rights to the fullest extent allowed by law.  A recent trial court ruling excluded evidence that ITC sought to admit based upon this principal.

I previously prepared a blog post titled:  Compensation is calculated by assuming the agency we use all acquired rights.  Just Compensation Requires Analyzing the Impact of the Taking of Entire Groups of Properties  That post emphasized the need to fully understand the rights being acquired because agencies frequently offer reduced just compensation by assuming that they will not fully use all of those rights.

This situation recently played out in a case that I handled against the International Transmission Company (ITC).  ITC’s easement allowed it to “destroy or otherwise control” all vegetation within a defined area.  ITC admitted that the easement provided it with “the right at its sole discretion to remove all trees, bushes and shrubs in the area encumbered” by the easement.  Notwithstanding this explicit language and its own admission, ITC sought to admit evidence, that it would not remove all vegetation and that some plantings could remain within the encumbered area.

ITC also admitted that the easement acquired allowed it the right to use herbicides.  ITC claimed that property owners could opt-out of the use of herbicides, however, ITC acknowledged that any such opt-out was not binding upon it.

Finally, ITC acquired “perpetual” access rights that allowed entry “at all times.”  ITC sought to admit evidence that it attempted to meet with property owners to forewarn them about when access would be made and coordinate convenient entry points.  However, numerous property owners have told me that ITC did not follow this policy on their properties.  The easement did not require warnings to be given.

I successfully excluded all of the evidence that ITC sought to admit.  This included any assertion that ITC would not clear cut all trees, bushes and brush within the easement area whether presently existing or planted in the future, any reference to ITC’s unenforceable herbicide opt-out program and any evidence that ITC would provide notice or consult with property owners prior to entering upon their property.

This ruling reinforces the importance of clearly understanding exactly what rights are being acquired.  Property owners cannot trust that agencies have made fair offers unless the full breadth of the easement is understood and the appraisal provided by the agency properly takes each of the acquired rights into account.  Generally, property owners cannot understand these issues without speaking with an attorney that specializes in representing property owners in eminent domain cases.

If you have any questions about condemnation and eminent domain issues, please feel free to contact me.