In federal condemnation actions, federal rules and principles generally control, despite a significant crossover with condemnations in the state courts. United States v. Miller, 317 U.S. 369 (1943). The procedural framework for federal condemnations is set by Rule 71.1, formerly FRCP 71A, of the Federal Rules of Civil Procedure.
Before the promulgation of Fed.R.Civ.P. 71.1, individual federal statutes authorized the condemnation procedure for takings. There are still some statutes which set forth specific procedures apart from Fed.R.Civ.P. 71.1; however, a clear legislative intent must be shown before these statutes will supersede 71.1. Because of the rarity of such legislative intent, the Federal Rule generally preempts predecessor statutes. Kirby Forest Industries v. United States, 467 U.S. 1 (1984).
In Southern Natural Gas Company v. Land, Cullman County, 2.0 Acres of Land, 197 F.3d 1368 (11th Cir. 1999), the court noted that Fed.R.Civ.P. 71.1 provides a uniform process for all condemnation cases involving the exercise of eminent domain. Therefore, the court found that any statutes establishing different procedures were overridden by the Rule.
Complaint Process under Rule 71.1
Fed.R.Civ.P. 71.1(c)(2) requires that complaints include: (a) a short and plain statement of the authority for the taking, (b) the use for which the property is to be taken, (c) a description of the property sufficient for its identification, (d) the interest to be acquired, and (e) as to each separate piece of property a designation of the defendants who would have been joined as owners thereof or the same interest therein. Since condemnation actions are in rem proceedings, the complaint names the property as the “defendant” together with at least one of the owners of some interest in the property. Fed.R.Civ.P. 71.1(c)(1).
Unlike the usual service requirements outlined elsewhere in the Rules, Fed.R.Civ.P. 71.1(d)(3)(A) mandates personal service by mail on all persons who have, or claim to have, an interest in the property, provided their addresses are known and they are within the U.S. or its territories. Service on other persons can be done by publication; however, merely not knowing the interested parties’ addresses may not be enough to avoid personal service. The Fifth Circuit has held that Fed.R.Civ.P. 71.1(c)(3) also requires that all parties whose names can be identified through “a diligent search of the records, considering the character and value of the property involved and the interest to be acquired” must be personally served.
Under Fed.R.Civ.P. 71.1, failing to properly serve interested parties allows those parties and their assigns to challenge the taking. In United States v. Catlin, 324 U.S. 229, 241 (1945) the court held that the lack of notice to a party who should have been notified about a property interest being taken does not void the taking, but it does preserve the party’s right to later challenge the statutory validity of the taking and to file a compensation claim.
Answer
To preserve any objection, an answer must be filed within 21 days, Fed.R.Civ.P. 71.1(e). However, owners who do not object to the taking only need to file a notice of appearance, Fed.R.Civ.P. 71.1(e). Even if no answer is filed, the rule safeguards the condemnees’ rights to present evidence on the issue of just compensation and to share in the proceeds.
Deposit and Distribution
When a Declaration of Taking is filed with the complaint, a deposit of estimated compensation can be made with the court. Fed.R.Civ.P. 71.1(j). Title then passes to the condemning authority, and the court and counsel are required to expedite the proceedings for distributing the deposited funds and determining just compensation. Additionally, the court may choose to issue an interim distribution while the case is pending, as it has the authority to “order such distribution of a deposit as the facts warrant.” Fed.R.Civ.P. 71.1(c)(4).
Federal Court Jurisdiction Over State Actions
Historically, Federal Courts have been hesitant to address issues unless there is clear federal standing. An example is Columbia Gas Transmission Corporation v. Deana Drain, 191 F.3d 552 (4th Cir. 1999), where the Fourth Circuit declined to accept jurisdiction over a title dispute. Although the court acknowledged it had authority to handle gas utility condemnations, it refused to acknowledge the Natural Gas Act, 15 U.S.C.S., Section 717, et seq., as a jurisdictional basis for the Gas Company’s claim that it held title to a previously condemned property. Id.
However, this does not mean that federal courts never find standing in condemnation cases. In Washington Metropolitan Area Transit Authority v. One Parcel of Land in Prince George’s County, 197 F. Supp. 2d 339 (D. Md. 2002), a federal district court determined standing, noting that federal courts have the authority to decide who among competing claimants is entitled to compensation, and that this decision can be made as a preliminary matter. Federal courts will apply the law of the state where the parcel is located to make such determinations.
State condemnation actions are generally not automatically removable to federal courts. The exception to this rule is for diversity jurisdiction, as described in 28 U.S.C. 1332(C)(1). In Union Pacific Railroad Company v. 174 Acres of Land, 193 F.3d 944 (11th Cir. 1999), the court noted that the railroad company could initiate a diversity action against an owner, provided the railroad is properly authorized to condemn property within the State.
Notably, the Supreme Court of the United States in Knick v Township of Scott, 588 US 180 (2019), overturned its 1985 decision Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985). Previously, under Williamson County, inverse condemnation claimants under 42 USC § 1983 were precluded mainly from bringing claims in federal court as a result of the failure to first bring suit in state court. As a result of Knick, claimants may bring their claims directly in federal court. The decision marked a significant development in openness and access to federal remedies.
Discovery
Fed.R.Civ.P. 26 governs discovery in federal condemnation actions, as well as other federal matters. The rule requires that the discovery disclosure must include: (a) the name, address, and telephone number of all known possible witnesses or persons having discoverable material, (b) copies of or descriptions and locations of all documents, data compilations and tangible things that may be used to support the party’s claims, (c) computations of any damages claimed by the party, (d) the identity of any expert witnesses, and (e) any written reports prepared by such expert witnesses. Under this rule, the condemning authority is required to provide the landowner with a copy of its appraisal of the condemned property.
A controversial issue remains whether experts retained in anticipation of litigation but not called at trial must be provided. This is now governed by Fed.R.Civ.P. 26(b)(4)(B), which allows discovery from such experts only upon a showing of exceptional circumstances where it is impractical for the requesting party to obtain facts or opinions on the same subject matter. United States v. Block 44, 177 F.R.D. 687 (M.D. Fla. 1997), United States v. 215.7 Acres, 719 F. Supp. 273 (D. Del. 1989), and United States v. 22.80 Acres, 107 F.R.D. 20 (N.D. Cal. 1985).
Right to Jury Trial, Commissioner Appointments and Standards
Jury trials in condemnation actions are different from normal jury trials inasmuch as the jury’s decision in condemnation trials is limited to the issue of just compensation. While there is no constitutional right to a jury trial in federal condemnation proceedings, United States v. Reynolds, 397 U.S. 14 (1970), Bauman v. Ross 167 U.S 548 (1897), in those areas of Fed.R.Civ.P. 71.1 where Congress has not specially provided for a constituted tribunal, a jury trial may be available under Fed.R.Civ.P. 71.1(h).
Requests for jury trials must be filed within the 20 days allowed for an answer, and should not easily be denied. In Questar Southern Trails Pipeline Company v. 4.26 Acres of Land, 194 F. Supp. 2d 1192 (2002), the court held that a trial by jury should be allowed except in extraordinary and exceptional circumstances. In addition, the Court held that a commission should be appointed only in cases where there is a peculiar circumstance such that a trial by a jury would be inadvisable. A large number of facts to be dealt with in the case is not persuasive enough in and of itself to require a commission rather than a jury trial.
The only requirement for appointing Commissioners is that they must be disinterested parties. Absent convincing evidence otherwise, the Court assumes that the Commissioners will honestly perform their duties without personal bias. City of Stilwell v. Ozarks Rural Electric Cooperative Corporation, 166 F.3d 1064 (10th Cir. 1999).
The standard of review of a Commission’s report under Fed.R.Civ.P. 71.1(h) is the same as the power over the findings of fact under Fed.R.Civ.P. 53(e)(2). If the Judge determines that the Commission’s findings are inadequate or clearly erroneous, the Court may use its discretion to either modify the report on the basis of the record made by the Commissioners, reject the report in whole or receive such parts as it deems worthwhile, or recommit the report to the Commissioners with instructions. Southern Natural Gas Company v. Land, Cullman County, 2.0 Acres of Land, 197 F.3d 1368 (11th Cir. 1999).
The trial court has the discretion to appoint a Commission to determine just compensation under Fed.R.Civ.P. 6 71.1(h). The broad language of the statute permits the courts to appoint Commissions for any number of reasons, including the character of the property, the location of the property, the quantity of the property, or other reasons in the interest of justice.
Right to Take Issues
It is possible that a condemnation case could be defended on the basis that the proposed taking had not been authorized by Congress. However, as a practical matter this never happens because the Attorney General will generally not commence condemnation actions without an appropriation.
Whether a taking is for a public use or public purpose is potentially a legislative question. The only permissible challenge is an allegation that Congress lacked the constitutional power to enact the legislation authorizing the taking. Berman v. Parker, 348 U.S. 26 (1954); U.S. Ex Rel TVA v. Welch, 327 US 546 (1945).
In Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984), state legislation authorized a forced transfer of title to real property from lessors to lessees as part of a program to abolish the remnants of a Polynesian feudal land tenure system. The Court held that the Fifth Amendment’s “public use” requirement was coterminous with the extent of sovereign power, and that the mere fact that the property was being transferred to private owners did not mean that the taking had only a private purpose. The Supreme Court held that the basic Police Power allowed the state to destroy the “oligopoly” of land ownership under the Hawaiian trust system.
Issues of comparative desirability or necessity for the taking are usually either legislative or administrative determinations and are not subject to review by the Court in a condemnation case. United States v. Carmack, 329 U.S. 230 (1946). Further, it is no defense to a taking that more property is being taken than is strictly necessary for the project, or that other property would be more suitable for the project. Berman, 348 U.S. 26. Generally, the judiciary defers to a legislative public use determination unless the use involves what is either impossible or “palpably without reasonable foundation.” Richardson, et al v. City and County of Honolulu, 124 F.3d 1150 (9th Cir. 1997). The Richardson case is one of the best explanations of how federal courts review legislative-necessity delegations.
Despite the widespread criticism of the significant deference federal law provides to condemning authorities for their decision to seize property, the opinions state that one may be better off looking at the State court for necessity relief! See, e.g., Ilya Somin, Assessing the State Reaction to the Supreme Court’s Undermining of Property Rights, State Court Report (June 23, 2025) (discussing the widespread unpopularity of the deferential federal standard as well as the fact that upward toward 45 states have enacted state-level reforms in response).
Property Standards
There is a tension between the narrow concept of “property” used in condemnation cases and the broader definition that can be found elsewhere in the law.
The Fifth Amendment requires compensation for “property taken,” but compensation for “consequential” losses such as loss of business value, opportunity, and goodwill is usually excluded. In United States v. Petty Motor Co., 327 U.S. 372 (1946), the court held that:
Just compensation is the value of the interest taken. This is not the value to the owner for his particular purposes but a so-called “market value.” It is recognized that an owner often receives less than the value of the property to him, but experience has shown that the rule is reasonably satisfactory.
The Petty approach seems to conflict with the depiction of property set forth in Lynch v. Household Finance Corp., 405 U.S. 538, 552 (1972), stated:
Property does not have rights. People have rights. The right to enjoy property without unlawful deprivation, no less than the right to speak or the right to travel, is in truth a ‘personal’ right, whether the ‘property’ in question be a welfare check, a home, or a savings account. In fact, a fundamental inter-dependence exists between the personal right to liberty and the personal right in property. Neither could have meaning without the other.
Courts have sometimes applied a broad view of the right to ownership to takings cases. When the government in Armstrong v. United States, 364 U.S. 40 (1960), asserted sovereign immunity to prevent the enforcement of materialmen’s liens on certain boats that the government had constructed, this action was deemed a “taking” of the liens. The Court noted that the result of the government’s action was the destruction of all of the materialmen’s property rights under their lien claims and was therefore compensable.
However, there are also other more restrictive views of property in condemnation actions. For example, in Omnia Co. v. United States, 261 U.S. 502 (1923), the Supreme Court held that, when involved in a wartime taking of property which voided a profitable contract, the frustration of the contract was simply non-compensable. Similarly, in Mitchell v. United States, 267 U.S. 341 (1925), a taking of land destroyed a profitable business, and although the owner received compensation for the real estate, a separate claim for the value of the business was denied because there was no “finding as a fact that the government took the business, or that what it did was intended as a taking. If the business was destroyed, the destruction was an unintended incident of the taking of land.” Id. at 345.
Dismissal after Entry of Award, Costs, and Attorney Fees
If the government agency has not actually taken possession of the property, it can choose to dismiss a condemnation proceeding after an award has been entered. Fed.R.Civ.P. 71.1(i)(3). This was shown in United States v. 4,970 Acres of Land, 130 F.3d 712 (5th Cir. 1997), where an appellate panel reversed a trial court’s refusal to dismiss when possession had not yet been transferred. However, when the government dismisses the action, it must pay the owner’s costs and attorney fees. 42 U.S.C. 4654.
Title 42 U.S.C. § 4655 permits the payment of reasonable attorney fees and costs in a condemnation proceeding where either (a) the final judgment determines that the federal agency cannot acquire the property through condemnation, or (b) the United States abandons the proceeding. Under the Equal Access to Justice Act, attorney fees may be awarded to a “prevailing party” unless the United States’ position was “substantially justified” or there are special circumstances that make the award unjust. 28 U.S.C. § 2412. An award under this law is not available to individuals with a net worth exceeding $2 million or to entities with a net worth over $7 million or more than 500 employees, as specified in 28 U.S.C. § 2412(d)(2)(B).
IMPACT OF STATE LAW IN CONDEMNATIONS UNDER FEDERAL LAW
Generally, in cases where a condemning agency seeks to acquire property under federal statutes, the resolution of the dispute is governed by federal law and principles. See Miller v. Bruenger, 949 F.3d 986, 991 (6th Cir. 2020) (explaining that a claim “arises” under federal law for jurisdiction purposes when it is “(1) created by a federal statute or (2) presents a substantial question of federal law.”); United States v. Kimbell Foods, 440 U.S. 715, 726 (1979) (discussion application of federal law when derived from a federal statutory system); United States v. Miller, 317 U.S. 369, 380 (1943) (rejecting the argument that state law on just compensation applied in a case involving a condemnation by the federal government).
However, under the decision of United States v. Kimbell Foods, 440 U.S. 715, 726 (1979), at times federal courts look to state law for the application and understanding of federal statutory law. The Supreme Court of the United States has not addressed the application of the Kimbell Foods doctrine and its progeny to eminent domain proceedings brought under federal law. Those decisions have limited extension of state law to common civil remedies, such as corporate law and property. See, e.g., Kamen v. Kemper Financial Services, 500 U.S. 90 (1991) (involving a shareholder dispute); see also Tyler v. Hennepin County, 598 U.S. 631, 638 (2023) (explaining that federal courts look to state law, among other sources, to help determine the confines of “property” compensable under the Takings Clause of the Fifth Amendment).
However, several federal courts of appeal have expanded Kimbell Foods to condemnation cases filed by private parties under federal laws like the Natural Gas Act and the Federal Power Act. See, e.g., Georgia Power v. Sanders, 617 F.2d 1112 (5th Cir.1980) (en banc); Columbia Gas Transmission v. Exclusive Natural Gas Storage Easement, 962 F.2d 1192, 1196 (6th Cir. 1992); Tennessee Gas Pipeline Co v. Permanent Easement for 7.053 Acres, 931 F.3d 237 (3rd Cir. 2019); Sabal Trail Transmission v. 18.27 Acres of Land, 59 F.4th 1158 (11th Cir. 2023). As the Sixth Circuit explained in its decision Columbia Gas Transmission v. Exclusive Natural Gas Storage Easement, 962 F.2d 1192, 1196 (6th Cir. 1992), the Kimbell Foods “body of precedent suggests an inclination to adopt state law as the federal standard where a private party brings a federal cause of action implicating areas of traditionally state concern.” (emphasis added). In cases where a private party has attempted to condemn land under federal laws, these courts have applied state law beyond issues like property definitions and into the assessment of damages recoverable under just compensation principles. See Georgia Power v Sanders, 617 F.2d at 1115 (“If Georgia law were applied, the amount awarded the landowners would be greater than it would be under federal law.”); Columbia Gas, 962 F.2d at 1200 (applying Ohio law to the issue of just compensation and concluding that the legal standards were not restrictive enough); Tennessee Gas, 931 F.3d at 242 (“The District Court hence determined that, although King Arthur could recover consequential damages for professional fees and development costs under Pennsylvania law, it could not do so under federal law.”).
The Eleventh Circuit went so far as to extend the Kimbell Foods doctrine for a private actor’s condemnation to allow recoupment of attorney fees under a state law’s definition of just compensation. Sabal Trail Transmission, 59 F.4th 1158. Nonetheless, it remains uncertain how far this holding extends. It has not been thoroughly tested or widely applied, and dispute remains as to the full extent of Kimbell Food’s application in condemnation proceedings brought under federal statutes. Sabal Trail Transmission, 59 F.4th at 1175 (Jordan, J, concurring) (disagreeing with the extension of the doctrine to attorney fees); Sabal Trail Transmission v. 3.921 Acres of Land, 74 F.4th 1346, 1348 (11th Cir. 2023) (Grant, J, concurring) (same); National RR Passenger Corp v. Two Parcels of Land, 822 F.2d 1261 (2d Cir. 1987) (declining to extend Kimbell Foods to a condemnation by Amtrak under federal statute). The application of these principles could vary depending on the jurisdiction and further depending on the substantive issue at play.
Notably, those decisions have not applied to condemnations by the federal government itself. See Miller, 317 U.S. at 380 (rejecting state law application to a condemnation by the federal government); Georgia Power, 617 F.2d at 1119-20 (explaining that condemnations by private parties “differ[] markedly from the nature of the federal interests involved where the United States is the condemnor”). Further, the Supreme Court of the United States has routinely relied upon federal law for the resolution of takings claims brought by property owners against state and local governments under 42 U.S.C. § 1983 and the U.S. Constitution. See, e.g., Cedar Point Nursery v. Hassid, 584 U.S. 139 (2021) (physical takings); Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency, 535 U.S. 302 (2002) (regulatory takings); Brown v. Legal Foundation of Washington, 538 U.S. 216 (2003) (just compensation).
VALUATION ISSUES
Just Compensation Standard
The definition of fair market value is the most probable price that would be negotiated between a willing buyer and willing seller when neither is under compulsion and both are fully informed. Compensation is generally paid only for the actual land taken, giving no consideration to the particular circumstances of the property owner. Monongahela Navigation Co v. United States, 148 U.S. 312 (1893).
The court in United States v. Miller explains how “fair market value” as applied in condemnation cases may differ somewhat from typical negotiated considerations of value. While an owner is to be compensated for his loss, he should not be paid for any gain made by the condemning authority. Additionally, factors related to the owner’s reluctance to relinquish the property or its particular suitability for the owner’s specific purpose cannot be taken into account.
Highest and Best Use, Changed Use, and Assemblage Standards
Similar to the just compensation standard is the highest and best use standard. The definition of highest and best use is frequently described as the “highest and most profitable use for which the property is adaptable and needed or likely to be needed in the reasonably near future is to be considered . . . .” Olson v. United States, 292 U.S. 246 (1934) (citing Boom Co v. Patterson, 98 U.S. 403 (1878), and Clark’s Ferry Bridge Co v. Public Service Comm of Pennsylvania, 291 U.S. 227 (1934)).
A common issue is whether uses other than those existing at the time of the taking can be considered. In Board of County Supervisors of Prince William County, Virginia v. United States, 276 F.3d 1359 (CA Fed. Cir. 2002), the U.S. Court of Appeals for the Federal Circuit held that property owned by the County, which had been acquired to protect the Manassas Battlefield, should be valued based on its highest and best use. Citing Olson, the Court of Appeals outlined the standard as the amount commanded in the open market at the time of the taking, considering the highest and most profitable use, including what it may have been used for in the near future. Id. at 1364. The Court of Appeals panel relied on McCandless v. United States, 298 U.S. 342, 345-6 (1936), in holding “the rule is well settled that, in condemnation cases, the most profitable use to which the property can probably be put in the reasonably near future may be shown and considered as bearing upon the market value.”
Another frequent issue in the highest and best use determination is whether assemblage may be considered or whether the valuation must occur in isolation from other properties. In United States v. Powelson, 319 U.S. 266 (1943), when property was taken for the construction of the Tennessee Valley Dam, the owner claimed that he could have used the property for the construction of a four-dam system in the area for the generation of electricity. Only one of the four dams would have been built on the taken property, and it would not have been economically viable on its own. The Supreme Court held that property value can be determined in light of a special or higher use that need not be measured merely by the current use of the property, or the uses to which it could be put as a separate tract.
One of the leading cases on assemblage is Baetjer v. United States, 143 F.2d 391 (1st Cir. 1944), in which the appellate court held that tracts physically separated from one another may constitute a “single tract” for calculating severance damages if they can be used together as an integrated unit, or even if there is a potential for such use in the reasonably foreseeable future. See Ackerman, Just Compensation – Remainder Damages in Partial Taking Cases, Mich Bar J Vol 61, No 6 (June, 1982) (available by link at Ackerman-Ackerman.com) (discussion of assemblage in the context of treatment of separate parcels as a single parcel for the purpose of calculating severance damages to a parcel not taken).
The Prince William panel also discussed how the property should be considered in combination with other parcels in the determination of the highest and best use. In citing Powelson, 319 U.S. 266 at 275-6 (1943), the panel held it would allow a combination of properties to be considered as the highest and most profitable use so long as there was a reasonable probability that the parcels would have been combined in the reasonably near future. Prince William, 276 F.3d at 1364.
Date of Taking Issues
United States of America v. Eltzroth, 124 F.3d 632 (4th Cir. 1997), addresses the issue of whether the date of the physical seizure must also be considered as the date of valuation for what is being seized. In that case, an easement was taken over 30 years before the taking of the remainder of the property. The court held that the valuation of the easement should be as of the date of seizure of the land, with the remainder valued as of the date of the filing of the taking under the Takings Act.
