Real Estate & Property Law

Arkansas Supreme Court: Pipeline Taking Not A Private Use

By Robert Thomas (inversecondemnation.com)

In Smith v. Ark. Midstream Gas Servs, No 09-1186 (May 27, 2010), the Arkansas Supreme Court concluded that a taking for a natural gas pipeline by a private, for-profit utility company was not a violation of the state constitution's public use clause.

Arkansas law delegates the power of eminent domain to certain pipeline companies and deems them to be "common carriers" -- 

All pipeline companies operating in this state are given the right of eminent domain and are declared to be common carriers, except pipelines operated for conveying natural gas for public utility service.

Ark. Code Ann. § 23-15-101. The public use clause in the Arkansas Constitution isn't that much different than similar provisions in other constitutions:

The right of property is before and higher than any constitutional sanction; and private property shall not be taken, appropriated or damaged for public use, without just compensation thereof.

Ark. Const. art. 2, § 22. The Smiths argued that the taking of a 60 foot right of way over their land for the natural gas pipeline was a private, not public, use because the pipeline is for use by less than the public, and the public at large is not able to ship materials through the pipeline. Slip op. at 6. The court rejected the argument because as a common carrier, the pipeline company is required by law to allow public access to the pipeline, even if the public does not actually use the pipeline. It is the right of the public to use the pipeline that makes the taking public, not the present actual use. Slip op. at 7 ("Again, the character of a taking, whether public or private, is determined by the extent of the right to use it, and not the extent to which that right is exercised.") (citing Ozark Coal Co. v. Pennsylvania Anthracite Co., 134 S.W. 534 (1911)).

The court also rejected the property owner's argument that the statutory delegation is unconstitutionally vague. Because the statute does not guide the property owner's conduct, the owner has no standing to challenge the statute. A statute is void for vagueness if it does not provide a discernible standard to which a person may conform their conduct. Since the delegation statute does not require the property owner to do (or not do) anything, he could not challenge the law.

Full post as published by inversecondemnation on May 28, 2010 (boomark / email).