St. Mary's Law Journal


This article compares and contrasts two different procedures courts use to ascertain a property's fair market value in an eminent domain proceeding. Twenty-seven states, the majority view, support the proposition that special but not general benefits may be deducted from any damages alleged to the remainder. However, neither special nor general benefits may be deducted from the value of the land taken. On the other hand, minority jurisdictions allow benefits to be set off from the total compensation awarded. These jurisdictions refuse to draw an artificial line between compensation for damages to the remainder and compensation for the land taken. Although the minority jurisdictions pin their arguments on the danger the majority method poses, as it makes room for double compensation, the majority jurisdictions rest their justification for the rule on principles of equity and precedent. This article uses various cases and secondary articles to explain and express the views of both the majority and minority jurisdictions, emphasizing how both ideas have manifested in Texas law. This article's overarching goal, as applied to Texas, is to illuminate the Texas lawyer to the existence of this controversy. No matter the jurisdiction you practice, these theories remain highly contested.


St. Mary's University School of Law