Eminent Domain and How Owners Can Fight It

How Eminent Domain Works

Eminent domain lets the government, or a company the law authorizes, take private property for a public use if it pays the owner just compensation. The rule comes from the last clause of the Fifth Amendment: "nor shall private property be taken for public use, without just compensation" (Cornell LII). The legal proceeding that carries out a taking is called condemnation.

Three conditions make a taking lawful:

• A taking of private property. That can be the whole parcel, a strip of it, or an easement for a pipeline or power line.
• A public use. Roads, schools, water lines and pipelines qualify. Courts have read the term broadly, which is where most fights begin.
• Just compensation. Courts measure it as fair market value (Justice Department), meaning “what a willing buyer would pay in cash to a willing seller” (Kirby Forest Industries v. United States).

Can You Refuse Eminent Domain?

You can refuse to sell, but refusing does not stop a lawful taking. If you and the buyer cannot agree on a price, it can file a condemnation case, and a court or a panel decides what you are owed.

What you can contest:

1. The purpose. Is the project a real public use under your state’s law? After Kelo, many states narrowed what counts.
2. The process. Did the agency or company follow each required step, such as a written offer, an appraisal and notice of your rights? In Texas, a missed step can pause the case and shift your legal fees to the condemning entity (Tex. Prop. Code 21.047).
3. The price. Is the offer fair market value, and does it account for damage to the land you keep?

What to Do in Your Situation

Eminent domain, by situation

Open the one closest to yours. This is general information, not legal advice.

I got a letter asking to survey or buy my land

1. Do not sign anything yet. A first letter often asks for a right of entry or proposes a price, and neither is required on the first ask.
2. Ask in writing for every appraisal the entity has of your property. In Texas it must disclose appraisals from the past 10 years when it makes an offer.
3. Write down who contacted you, when, and what they said.
4. Talk to an eminent domain lawyer before you respond.

The offer seems too low

1. Get your own appraisal from a certified appraiser who knows your area.
2. List what the offer leaves out: damage to the land you keep, lost access, trees, fences, wells, crops.
3. Respond in writing with your counteroffer and the evidence behind it.
4. If the case goes to a hearing, the difference between the offer and the award can decide who pays the costs.

They only want part of my land or an easement

1. Ask how the taking changes the value of what you keep. Compensation for a partial taking should include that loss.
2. For a pipeline or power line, read the easement terms closely: how many lines, how wide, what they carry, and who restores the land.
3. In Texas, easements from private pipeline and power companies must spell out those terms.

I rent, or I run a business on the property

1. Ask the agency about relocation help. Federally funded projects must offer moving costs and other benefits under the Uniform Relocation Act.
2. Keep receipts for every moving and setup cost.
3. Read your lease for a condemnation clause, which decides how any payment is split with the owner.

The project was canceled or never built

1. Check whether you can buy the land back. In Texas, a former owner may repurchase if no actual progress is made within 10 years or the use is canceled.
2. The repurchase price in Texas is what the entity paid you.
3. Watch for a notice by certified mail, and respond within 180 days.

The Condemnation Process, Step by Step

Every state sets its own steps, and Texas shows what a detailed process looks like. The Legislature added a required good-faith offer in 2011 and required easement terms in 2021, on top of a landowner’s bill of rights that dates from 2007.

How a Texas condemnation works

1. 1 First contact Initial written offer The entity sends a written offer with the landowner's bill of rights and discloses its appraisals from the past 10 years.
2. 2 30+ days later Final offer It gets a certified appraisal and makes a final offer at least equal to that appraisal, with a copy of the appraisal.
3. 3 14+ days Time to respond You have at least 14 days to accept or refuse the final offer.
4. 4 If no deal Condemnation petition The entity files a petition in court describing the property and the specific public use.
5. 5 Within 30 days Special commissioners named The judge appoints 3 local property owners to decide the damages.
6. 6 20+ days after Commissioners hearing Both sides present evidence of value, and the commissioners issue an award.
7. 7 About 3 weeks Objection and trial Either side can object by the first Monday after the 20th day, which sends the case to a regular trial.

Source: Texas Property Code ch. 21, Secs. 21.0111-21.018, read October 14, 2026. The entity can take possession after the award if it pays or deposits the award and posts the required bonds (Sec. 21.021).

Costs follow the result. If the commissioners award more than the entity offered before the case began, or a court on appeal awards more than the commissioners did, the entity pays all costs. If the award is equal to or less than that offer, the owner pays them (Tex. Prop. Code 21.047). That rule is why a documented counteroffer matters.

What Just Compensation Covers

Just compensation is fair market value at the time of the taking, not what the property is worth to you. That gap is the most common complaint owners have. Courts pay for the property, not for sentimental value, and usually not for your legal bills.

The extra replacement-housing payment for homeowners under the federal law requires that the owner lived in the home at least 90 days before negotiations began (42 U.S.C. 4623). State and local projects without federal money follow their own state’s relocation rules.

Kelo v. New London

In 2005, the Supreme Court ruled that a city could take homes for a private economic development plan. New London, Connecticut, planned to redevelop 90 acres in its Fort Trumbull neighborhood next to a new $300 million Pfizer research facility. Nine owners of 15 properties, including Susette Kelo, refused to sell (Cornell LII).

"Promoting economic development is a traditional and long accepted function of government." Justice John Paul Stevens wrote for the majority, and the Court said it would "decline to second-guess the City's considered judgments" about the plan. Justice Sandra Day O’Connor dissented, joined by Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas: "Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory."

Pfizer’s campus closed in 2010. Kelo’s house still stands because it was moved to another spot in town (APA Planning).

How States Responded After Kelo

45 states changed their eminent domain laws in response to Kelo, but about half of those laws gave owners little real protection. Law professor Ilya Somin found that the weak laws banned takings labeled “economic development” while still allowing takings of “blighted” property under definitions broad enough to cover nearly any lot (State Court Report). New York enacted no reform at all. The Institute for Justice, which represented Susette Kelo, uses a different measure and counts 47 states that have strengthened their laws since the ruling.

The Kelo opinion itself invited this: the Court said states were free to set stricter limits than the federal minimum. Several state supreme courts have since rejected Kelo’s reasoning under their own constitutions, so the protection you have depends heavily on your state.

Eminent Domain in Texas

Texas voters amended the state constitution on November 3, 2009 to ban taking property for private economic development. Article I, Section 17 now says public use does not include a transfer to a private entity “for the primary purpose of economic development or enhancement of tax revenues,” and new grants of eminent domain power need a two-thirds vote of each chamber (Texas Constitution).

Private pipeline and electric companies can hold the power in Texas, and since 2022 their easement offers must state terms such as the number and size of pipelines and what they carry (Tex. Prop. Code 21.0114). If you own land in Texas, our Texas property tax guide explains how your appraisal district values it, which is a useful check on any offer.

The border wall is the fight to watch in Texas now. Landowners in the Big Bend region began receiving eminent domain letters from the Department of Homeland Security in February 2026. In September 2026, 6 landowners and Conserve Big Bend, representing 230 more across 5 counties, sued in federal court. They argue the department issued waivers for the project although the region does not meet the law’s requirements, and that the plans violate their Fifth Amendment due process rights (KUT/NPR).

Where eminent domain fights stand

As of October 14, 2026

• Texas landowner protections (HB 2730) Law

  Took effect January 1, 2022: easement offers from private pipeline and power companies must state required terms (Sec. 21.0114). (source)

• Texas bona fide offer rules (SB 18) Law

  Took effect September 1, 2011: written initial and final offers, a certified appraisal and the landowner's bill of rights. (source)

• Tax-sale surplus (Pung v. Isabella County) Final ruling

  Decided June 23, 2026, 9-0: after a fairly conducted tax sale, the baseline for just compensation is the auction sale price, not fair market value. (source)

• Big Bend border wall lawsuit In litigation

  Filed September 14, 2026 in federal court in Washington, D.C., by 6 landowners and Conserve Big Bend, which represents 230 more, against DHS and CBP over the 517-mile Big Bend Sector. No ruling as of the docket's latest entry, September 24, 2026. (source)

Source: KUT/NPR; CourtListener; Texas Property Code ch. 21; U.S. Supreme Court

Court Rulings That Shaped Eminent Domain

For most of the 20th century, the Supreme Court widened what counts as public use. In 1954 a unanimous Court approved urban redevelopment in Washington, D.C., in Berman v. Parker, holding that “it is within the power of the legislature to determine that the community should be beautiful as well as healthy” (Cornell LII). In 1984 it upheld Hawaii’s land reform 8-0 in Hawaii Housing Authority v. Midkiff, calling public use “coterminous with the scope of a sovereign’s police powers” (Cornell LII). Those rulings set up Kelo.

More recent rulings have focused on what owners must be paid. The Supreme Court confirmed the federal government’s power in Kohl v. United States in 1875, and during World War II the Justice Department’s Lands Division oversaw the acquisition of more than 20 million acres (Justice Department).

1. 1875 Federal power confirmed Kohl v. United States (source)
2. 1897 Takings clause binds states Chicago, Burlington & Quincy Railroad v. Chicago, through the 14th Amendment (source)
3. 1954 Redevelopment counts as public use Berman v. Parker, unanimous (source)
4. 1984 Land reform is public use Hawaii Housing Authority v. Midkiff, 8-0 (source)
5. 2005 Economic development allowed Kelo v. City of New London, 5-4 (source)
6. 2009 Texas bans development takings Constitution Art. I, Sec. 17 amended (source)
7. 2023 Tax-sale surplus is protected Tyler v. Hennepin County, 9-0 (source)
8. 2026 Surplus measured by sale price Pung v. Isabella County, 9-0 (source)

Eminent domain rulings and laws, 1875 to 2026: 1875: Federal power confirmed (Kohl v. United States). 1897: Takings clause binds states (Chicago, Burlington & Quincy Railroad v. Chicago, through the 14th Amendment). 1954: Redevelopment counts as public use (Berman v. Parker, unanimous). 1984: Land reform is public use (Hawaii Housing Authority v. Midkiff, 8-0). 2005: Economic development allowed (Kelo v. City of New London, 5-4). 2009: Texas bans development takings (Constitution Art. I, Sec. 17 amended). 2023: Tax-sale surplus is protected (Tyler v. Hennepin County, 9-0). 2026: Surplus measured by sale price (Pung v. Isabella County, 9-0).

Our Fifth Amendment explainer covers the 2023 and 2026 tax-sale cases in more detail, and civil asset forfeiture explains a different way government takes property, one that runs through criminal law instead of the Takings Clause.

Common Questions

What You Can Do

1. Slow down and get it in writing. Ask for every appraisal and offer in writing, and do not sign a right-of-entry or sale agreement until you understand it.
2. Get your own appraisal. An independent appraisal is the strongest evidence you can bring to a hearing.
3. Talk to a lawyer early. Ask how the lawyer is paid before you sign, since fee arrangements in these cases vary.
4. Organize with neighbors. A landowner coalition can share appraisals, lawyers and information, as Big Bend owners have done.
5. Weigh in before projects are approved. Many highway and transmission projects hold public hearings or comment periods before routes are final. Our letter-writing guide shows how to make a comment count.