Do They Actually Have the Right to Take Your Land Right Now?
There’s a test most takers hope you’ll never think about.
Most landowners fight over how much.
The smarter first question, which most lawyers never ask, is whether a condemnor has the right to take your land at all.
Then there’s the question that almost no one ever thinks about at all: Does the taker actually have the legal right to take your land right now?
There are two tests. Most people only know about one.
Lots of people have heard that condemnation takings must be for a "public use." The words “public use” appear in the Fifth Amendment. In Kelo v. New London, the U.S. Supreme Court ruled that the government can take land from one private citizen and transfer it to another private citizen for economic development, so the bar for proving “public use” is low. Genuinely low. Like, world-record-limbo low.
But public use is only the first test. There's a second test that takers rarely advertise and most lawyers never raise.
It's called “public necessity.” And this test asks a different question entirely: Even if this project involves a legitimate public use, does the taker actually need to take so much of your land right now for its project?
What does public necessity look like in practice?
The courts give takers a lot of deference here. Judges generally aren't going to second-guess the government’s or a pipeline company's engineering decisions. That's the reality.
But the requirement has real limits—and they're worth knowing.
Say a pipeline crosses the corner of your property. Fine. But what if the company tries to condemn your entire ranch when the line only crosses a small fraction of it? There's no legitimate need to take your whole ranch. That kind of overreach is exactly what public necessity is designed to stop.
Timing matters, too. What if a condemnor wants to take your land today for a project it hasn’t funded, hasn’t permitted, and doesn’t expect to build for another 15 years? That's likely not going to satisfy the public-necessity test. The project is too speculative. And speculation doesn't justify taking someone's land.
The Legislature has suggested a 10-year limit.
Texas law offers a useful hint about where the line is. If a taker hasn't started substantial work on a project within 10 years of the taking, the landowner has the right to buy the land back.
That's a statutory rule, not a constitutional one. But it tells you something about what the legislature considers reasonable. If the buyback right is triggered by 10 years of no progress, a taking for a project that's 15 or 20 years away probably isn’t a “public necessity” in the first place.
Right-to-take challenges depend on having lawyers who know how to make them—and lawyers who think to make these arguments at all.
Most don't. Most lawyers go straight for the money.
That's exactly what the other side is counting on.