Eminent Domain Compensation in Western States: A Critique of the Fair Market Value Model

Aging cafes disintegrating quietly on the old roads while travellers drive by on the new are a familiar part of the western landscape. Indeed there is a history of development in the west to be written from its eminent domain cases. They begin with the railroads and irrigation systems, continue through construction of the interstate highway system and urban renewal in the 1960s and 1970s, and today often concern environmental and historical preservation. Both the United States Constitution and the constitutions of the states of the intermountain west and the Pacific Coast prohibit the state from taking property without paying just compensation.

Thus, there are two basic issues in any eminent domain case. First, has governmental interference with property become extensive enough to constitute a taking that requires compensation? Second, how much and what kind of compensation ought to be paid? Much has been written on the first issue, but the second has received very little attention.

This article is an attempt to remedy the gap with respect to eminent domain compensation in the western states.