Condemnation Hierarchy—Competing Public Uses (2019) / Chapter Skim
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Pages 23-28
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From page 23... ...
NCHRP LRD 78 23 A Rhode Island statute on the jurisdiction of the state's Public Utilities Commission defines the term public utility to mean "every company that is an electric distribution company and every company operating or doing business in intrastate commerce and in this state as a railroad, street railway, common carrier, gas, liquefied natural gas, water, telephone, telegraph, [or] pipeline company…."244 Although some statutes define the term "utility" to include common carriers, such as railroads and pipelines, this section of the digest discusses railroads and pipelines separately.
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From page 24... ...
24 NCHRP LRD 78 In City of Chandler v. Arizona Department of Transportation,253 the question was whether the city of Chandler was required, as the trial court held, to pay the costs of relocating its utility lines under a roadway that had been dedicated to the public.
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From page 25... ...
NCHRP LRD 78 25 Except as otherwise provided, the Act's provisions applicable to the regulation of rail transportation preempt any other provisions of federal or state law.269 Nevertheless, it appears that not all state regulation or takings of railroad property are preempted. Preemption applies in those situations when "a regulation prevents or unreasonably interferes with railroad transportation."270 As held by the Seventh Circuit in Union Pacific Railroad v.
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26 NCHRP LRD 78 tions" and "eminent-domain actions that seek to take property containing active rail lines…."286 Regarding "‘state or local actions that are not facially preempted, … preemption analysis [under 49 U.S.C.
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From page 27... ...
NCHRP LRD 78 27 based on federal preemption.302 The Kentucky DOT stated that the department "does not condemn railroads."303 The Texas Department of Transportation (Texas DOT) reported that it has had "substantial difficulty" acquiring real property for highway rights-of-way from railroads because of the STB's "exclusive juris diction over rail operations and the expense, delay and difficulty involved in obtaining a no impact determination from [the]
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From page 28... ...
28 NCHRP LRD 78 Colorado Constitution.320 On several grounds, the court of appeals reversed the trial court's decision that the condemnation was constitutional because of the property's relationship to the highway construction project. The court of appeals found that the facts did not warrant the taking of property for a private way of necessity, that the Department did not have the requisite statutory authority to condemn railroad property for a private way of necessity, and that the public purpose requirement for a condemnation did not exist in the case.321 The Supreme Court of Colorado, although affirming the judgment of the court of appeals, held that the common law on a private way of necessity, as interpreted by the appeals court, did not apply, because the condemnation had to be based on article II, section 14 of the state constitution.322 The Department argued that, because the state's statutes authorized the "condemnation of private property in connection with the construction of a highway,"323 the Department had statutory authority under sections 43-1-208 and 43-1-210 of the Colorado Revised Statutes to condemn the property.
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