Here comes another instance of judicial confusion between the topics of necessity for takings and excess condemnation (which properly gives rise to an issue of public use). See Boyd v. State, 976 N.E.2d 767 (Ind.App. 2012).
Necessity, or public necessity, is usually required by statute to prevent condemnors from wasting public funds on unnecessary land acquisitions. See e.g., Cal. Code Civ. Proc. Sec 1240.040. To establish necessity for the taking it must be shown that (a) the public project is necessary, (b) the subject property is necessary for the project, and (c) the project is so located so as to be most compatible with the greatest public good and least private injury; Sec. 1245.230. There is no such requirement in federal law, but most states have one.
Now, consider this problem: the formal documentation (e.g., plans and profiles for a new highway) specify a right-of-way width of 200 feet. But the condemnor files an action seeking to take a 400-foot wide right of way. How do we characterize the resulting problem? Does it give a rise to an issue of necessity? — i.e., is the additional 200 feet of right of way unnecessary, or is it a question of public use? — is the extra 200-foot excess to the formally adopted right of way width being taken for permissible public use or not? See Cincinnati v. Vester, 281 U.S. 439 (1930).
Although this is a pretty straightforward distinction, it has given rise to mountains of judicial confusion which stems from imprecise use of the English language. If the disputed excess land is said to be “unnecessary,” many judges (and lawyers who should know better) think this gives rise to an issue of necessity. And once you say that, you usually doom your case. Why? Because for reasons that are not clear, courts (except in Florida) take the position that the question of necessity for a taking is legislative and won’t be considered by the court unless the owner can show fraud or bad faith on the part of the condemnor. Before 1976, the California Supreme Court went so far as to hold that the issue of necessity is altogether nonjusticiable even when the condemnor is guilty of fraud, bad faith and abuse of dicretion. People v. Chevalier 52 Cal.2d 299 (1959).
Not so when the argument proceeds on the premise that the excess 200 feet will not be devoted to the public use specified in the condemnation resolution, and will thus not be devoted to a “public use.” Back in 1917, a fellow named Cushman wrote a book entitled EXCESS CONDEMNATION, that explains it all, and its analysis remains sound.
Anyway, in the Indiana Boyd case cited supra. the judge who wrote the opinion got all confused and treated a clear case of excess condemnation (a proposed taking of 400 feet for a right of way specified to be only 200 feet), as if it gave rise only to a nonjusticiable issue of public necessity, which it did not.
So be warned. When handling a case like that, do not say “the taking of the excess 200 feet is unnecessary.” No, no, no! Your opponent will respond by saying “Necessity is not for the court to decide.” Say instead “this taking includes land that will be in excess to what will be devoted to the public use, and to that extent its taking violates the ‘public use’ clause.” And presence or absence of public use is a judicial issue, because it involves the interpretation of a legal, constitutional term. Courts do that; not legislatures, and a fortiori not the many unelected government functionaries (like highway commissions, for example, who actually decide what particular parcel of land to take, how much of it to take, and for what specific purpose This is no guarantee of victory, but sorting it out will better inform the judge and improve your chances of success.
For an example of an excess condemnation being treated as such see People v. Superior Court (Rodoni) 68 Cal.2d 206 (1968). True enough, in that case a divided California Supreme Court left the door open to the condemnor to take excess land (54 acres for a required public use of 0.5 of an acre). But in so doing the court set the bar high, requiring the ocndemnor to show that by engaging in excess cojndemnation the condemnor will save money (impoossible) or spend no more that it would if it only took what it plans to actually use for the project. The legislature agreed — (Cal. Code Civ. Proc. Sec.1240.150) — so that thereafter, there have been no reported excess condemnation cases in California. Possibly, that may have something to do with the fact that shortly after the Rodoni case, California’s Little hoover Commission investigated the state’s excess land program, and found that, far from saving the state money, it produced a large acumulation of excess land that it could neither use nor sell.