Property Westlaw

8/4/2019 Property Westlaw

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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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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,


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)


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)


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,



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


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


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)


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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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


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)


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


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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