“Procedural and Evidentiary Issues in Condemnation Cases: What Gets in and What Doesn’t?”


Traditional eminent domain trial work is unique. Liability, in the true sense of the word, is not at issue, and very often there is only one simple question for the jury to answer – what amount of money will adequately and fairly compensate the property owner for the rights being acquired by the condemnor? The simplicity of the question often leads practitioners to believe that eminent domain trials will be similarly simple. In reality, practitioners on both sides of the bar are regularly confronted with thorny, and in some cases unsettled, procedural and evidentiary issues that must be adequately addressed. This paper examines four issues that have been repeatedly raised in eminent domain proceedings we have been involved with over the past year. First, to what extent are landowners testifying under the Property Owner Rule now subject to expert disclosure requirements, and how much market evidence must a landowner now offer in order to support his opinions regarding the fair market value of his property? Second, to what extent can a condemnee introduce evidence regarding the extent to which the condemnor will exercise its easement rights on the condemnee’s property, and to what extent can the condemnor introduce evidence regarding the likelihood that it will use such rights? Third, how, if at all, can a condemnee introduce fear of electric transmission structure failure and/or electromagnetic fields as an element of just compensation? Finally, what strictures govern the admissibility of paired sales as a method of proving remainder damages?

II. Landowner Testimony: Evidentiary and Procedural Hurdles After Justiss -

For over forty years, Texas courts have recognized landowners’ ability to testify to the fair market value of their property, even if they could not qualify to testify about the value of similar property belonging to someone else.1 This “Property Owner Rule” is premised on the idea that property owners are generally familiar with the value of their property. While the existence of the Property Owner Rule has remained uncontroversial, the amount of evidence required to substantiate landowner valuation testimony has been the subject of much litigation. In 1984, the Texas Supreme Court held that very little was required to substantiate landowner valuation testimony – it was enough to testify to a general familiarity with a property’s fair market value without offering any specific supporting evidence...

Originally published in CLE International.

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