There is no Abandonment of an Easement Taken by Eminent Domain Unless There is an Intention to Abandon the Easement Prior to the Taking by Eminent Domain; Therefore the Easement Owner at the Time of Taking is Entitled to the Award.

Authors

J. M. Holbrook

Abstract

There is no Abandonment of an easement taken by eminent domain unless there is an intention to abandon the easement prior to the taking by eminent domain; therefore, the easement owner at the time of taking is entitled to the award. This article seeks to illuminate the issue surrounding the governments, extraordinary and dangerous power, eminent domain, and a private person's right to compensation upon the government "taking" their easement. In the case San Antonio v. Ruble, Petitioner contended that the landowner's easement had been abandoned, because the intent to abandon was manifested by the transfer of the easement to the city following the condemnation and that the city, in taking the easement, frustrated its intended purpose, therefore extinguishing it.

The article analysis various cases concerning similar issues and how those courts dealt with the issues surrounding eminent domain and easements. Historically courts have generally considered easements a type of property the government can take from private persons. However, there is much dispute surrounding the time a taking occurs for an easement and the extent of compensation the taking demands. In exploring the court's reasoning in Ruble, the article suggests a more equitable rule. If the court had reasoned that the landowner was entitled to compensation, not for the landowner's abandonment of the easement but for the government destroying the easement by combining the servient and dominant estates. Then the landowner would have been compensated for the government's taking of their entire easement, which is what took place. This new rule would better serve courts in resolving these issues and better compensate individuals who have had their easements taken.

Publisher

St. Mary's University School of Law

Recommended Citation

J. M. Holbrook, There is no Abandonment of an Easement Taken by Eminent Domain Unless There is an Intention to Abandon the Easement Prior to the Taking by Eminent Domain; Therefore the Easement Owner at the Time of Taking is Entitled to the Award., 2 St. Mary's L.J. (1970).
Available at: https://commons.stmarytx.edu/thestmaryslawjournal/vol2/iss1/14