WPI 150.00 Introduction

Eminent domain has been defined as “the inherent power of a governmental entity to take privately owned property … and convert it to public use.” Condemnation is the judicial process by which this power is exercised. Black's Law Dictionary (10th ed. 2014). A restriction on the exercise of this power is that private property cannot be taken or damaged for public or private use “without just compensation having been first made, or paid into court for the user, … which compensation shall be ascertained by a jury, unless a jury be waived, as in other civil cases in courts of record in the manner prescribed by law.” Const. art. I, § 16, amendment 9.

Although an attribute of sovereignty, the power of eminent domain is dependent upon legislative action establishing the situations in which, and the procedures by which, the power is to be exercised. City of Tacoma v. State, 4 Wash. 64, 29 P. 847 (1892). Statutes giving agencies the power to condemn and defining the purposes for which they may condemn, as well as the procedures to be followed, are numerous. These statutes can be found in RCW Title 8, including cross-references to additional statutes contained elsewhere in the code. Resort must be made to particular sections in deciding what instructions the jury should be given.

A taking or damaging of private property for public or private use without the payment of just compensation contrary to article I, section 16, amendment 9, of the Washington Constitution, creates a cause of action in the owner for the recovery of such compensation. Lewis v. City of Seattle, 5 Wash. 741, 32 P. 794 (1893); Brown v. City of Seattle, 5 Wash. 35, 31 P. 313 (1892). Such actions are often referred to as “reverse” or “inverse” condemnations. Substantive and procedural law applicable to such actions has no direct basis in statute, but is found in case law.

The bulk of the instructions contained in this chapter will be applicable to inverse as well as direct condemnation. An introductory instruction defining the issues can be patterned after WPI 20.01 (Issues). As there usually will be an issue of liability (i.e., whether there has been a taking or damaging of private property by the defendant) as well as compensation, instructions defining the elements of liability and burden of proof as well as those establishing the measure of compensation will be required.

For more detailed discussions of eminent domain law, see: Sackman, Nichols on The Law of Eminent Domain (rev. 3d ed.) (providing a national perspective); Washington Real Property Deskbook, Chapter 13, Eminent Domain (Wash. St. Bar Assoc. (4th ed.); Stoebuck, 17 Washington Practice, Real Estate Property Law, Ch. 9 (2d ed.); Smith, Hansen, and Hiatt, Volume VII of Washington Lawyers Practice Manual, Chapter 23 Part 18 (2015 update).