13.3 Eminent Domain

• Library: Federal Civil Jury Instructions for the Fifth Circuit
• Edition: 2020

13.3 Eminent Domain

This action is brought by the United States under

the federal government’s power of eminent domain. This

term refers to the government’s right and power to take

private property for public purposes. A lawsuit brought

under eminent domain is sometimes called a condemna-

tion proceeding.

The power to take private property for public

purposes is essential to the government’s independence

and its operations. If the government did not have that

ability, any landowner could delay or even prevent pub-

lic improvements, or could force the government to pay

a price higher than the fair market value of the prop-

erty taken. But the government’s eminent domain

power is subject to the requirement that the property

owner be paid “just compensation.” That term means

the fair market value of the property on the date of the

taking. It is your task to decide, based on a preponder-

ance of all the evidence submitted, what the fair mar-

ket value of the property was on the date of the taking.

“Fair market value” means the amount a willing

buyer would have paid a willing seller in an arms-

length transaction, when both sides are fully informed

about all the advantages and disadvantages of the prop-

erty, and neither side is acting under any compulsion to

buy or sell. Fair market value must be determined at

the time of the taking, considering the property’s high-

est and most profitable use, if then offered for sale in

the open market, with a reasonable time allowed to find

a buyer. The burden is on the property owner to prove,

by a preponderance of the evidence, the fair market

value of the property on the date of the taking.

The highest and most profitable use of the property

is the use for which it was actually and potentially suit-

able and adaptable. It is not necessarily what the owner

was using the property for at the time of the taking.

13.3

MISCELLANEOUS FEDERAL CLAIMS

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