Can Private Companies Take Your Land?
Before you negotiate a single dollar in an eminent domain situation, there's a question most landowners never think to ask.
Most people who call me are already thinking about the money. How much is fair? Is the offer low? What’s a jury going to do? Those are good questions.
But there's one that comes before all of them:
Does the would-be taker actually have the right to take your land?
Let's start with the easy cases. When governmental entities want your land for a road, a school, or a bridge, they're almost certainly going to be able to take it—as long as they have a real project ready to build in the near future. The same is true for regulated electric and gas utilities. As long as the project is funded and moving forward, they'll have the power to take or use your land for their infrastructure projects.
When a landowner asks me whether we can stop a project like that, I tell them the truth: it’s hard and often impossible to stop the government or a utility from taking their land.
But many takings—perhaps most takings in Texas—are by private, for-profit companies, not the government
Here's what stops most landowners cold—and then makes them hot with anger:
The entity showing up at your door usually isn't the government at all. It isn't a regulated utility. It's a private, for-profit pipeline company—one that answers to shareholders, not voters or regulators. These companies choose their own routes with almost no regulatory oversight, yet they wield the same awesome power to take your land that government agencies have.
How is that legal?
The answer usually involves something called a “common carrier.” That might sound technical. But it really just means that the legislature gives private companies the power to take land to build “toll roads” for oil and gas products.
Toll roads for oil and gas
Here's the theory. A pipeline that qualifies as a common carrier isn't treated as a purely private pipeline. In Texas and elsewhere, the pipeline is treated like a public toll road for oil and gas products. The pipeline company builds it, but other companies—including shippers, producers, even competitors—have the right to pay a tariff and move their product through it.
A common-carrier pipeline is supposed to be open to anyone who’s willing and able to pay the tariff to have their product carried along the pipeline, the same way a toll road lets people drive along the route as long as they pay the toll. Today, the law treats a pipeline as “public” even if only one other company—aside from the pipeline company’s affiliates—is allowed to use it.
That's the legal justification for giving a private company the power to condemn your land.
(Pull the legal curtain back, and you’ll discover what’s really going on: Oil and gas companies make great gobs of money and contribute some of that money to the campaigns of politicians and judges, who then write and apply the laws in ways that favor their contributors.)
It’s surprising, even shocking, to most people that private, for-profit companies have the power to take their land to make private gain. They argue that only the government should have that power.
Here’s the thing: The government’s power of eminent domain is so vast that the government can lend it out to others. The monarch is still there. But rather than take the land directly, the monarch gives licenses to private, for-profit companies to exercise this incredible power.
The Constitution ensures that these licenses have a condition. For any taking to be legal—whether by the government or a private company—the taker has the burden to prove that the taking is for a “public use.” A road. A utility line. A pipeline open to other shippers. Or almost anything else that the legislature decides is sufficiently “public.”
No public use, no right to take. That’s the rule.
But what counts as "public use" and a “common carrier” is a question the courts have answered in ways that might surprise you.
The license and the reality
Here's where things get tricky. While pipelines may claim to be “common carriers,” many don't actually function like public highways. They carry their own product—or the product of their subsidiaries or other affiliates. The public toll road may exist on paper. But, in reality, it's a private road dishonestly claiming to be open to the public.
The courts have made this trickery genuinely hard to challenge. The line between a true common carrier and a company pretending to be one is blurry, contested, and important—because the company’s power to take your land depends on being on the “public” side of that line.
Most condemnation lawyers never do a deep dive into whether a pipeline is a true common carrier. Most lawyers go straight for the money. That's exactly what the other side is counting on.
But skipping straight to the money is a mistake. Not every taking is legal. Not every private company claiming eminent domain power actually has it.
And here's the part that should make you genuinely angry. The company that takes your land gets to keep every dollar that your land helps generate—for decades, even lifetimes.
In contrast, you get paid once.
The for-profit company builds a pipeline worth hundreds of millions or even billions of dollars. The profits go to shareholders. The disruption, the loss of privacy, the safety risks, the drop in value of everything left behind? That stays with you.
These companies privatize the gains—and they socialize the burdens.
They also count on the fact that most people will never hire good condemnation lawyers to protect themselves and their land, and that most lawyers won’t challenge whether the pipeline is a legit common carrier.