We have been negotiating a pipeline easement with Enterprise that crosses our ranch in McCulloch county.. They have filed an Eminent Domain suit against us last week. I have a lawyer that is dealing with the easement agreement. Any advice as we go into the commissioners hearing would be appreciated. They have apparently filed same action on all of the ranchers that have not come to their terms which sounds like it could be up to 15 ranches in our area.
Eminent Domain
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Last: 4 yr ago by Ribeye-Rare
Be patient. They will likely make a reasonable offer closer to the hearing. IMO, getting a solid form written by a good attorney is worth leaving some money on the table.
Eminent domain rights given to private companies by our government is BS. ED was suppose to be for state and fed agencies for the good of the public. Now it's basically a method for private companies to get land cheap and make huge profits after greasing the palms of elected officials.
That company will be coming thru my property as well. Their route shows to be going thru the middle of a big area of 150 yr old oaks. I will be hiring an arborist and Atty once the trees are valued. I will be trying to get monitarily compensated for their value, which has been initially determined by a separate arborist to be between 20k-30k each. They plan on taking out approx 8-10 oaks that are over 24" diameter and 30-40 feet tall.
All the owners in our area already have a gas/oil Atty on retainer, waiting on notification from the PL company.
That company will be coming thru my property as well. Their route shows to be going thru the middle of a big area of 150 yr old oaks. I will be hiring an arborist and Atty once the trees are valued. I will be trying to get monitarily compensated for their value, which has been initially determined by a separate arborist to be between 20k-30k each. They plan on taking out approx 8-10 oaks that are over 24" diameter and 30-40 feet tall.
All the owners in our area already have a gas/oil Atty on retainer, waiting on notification from the PL company.
Request them to go under or around the trees. That's pretty common.
ThisDoc Hayworth said:
Eminent domain rights given to private companies by our government is BS. ED was suppose to be for state and fed agencies for the good of the public. Now it's basically a method for private companies to get land cheap and make huge profits after greasing the palms of elected officials.
That company will be coming thru my property as well. Their route shows to be going thru the middle of a big area of 150 yr old oaks. I will be hiring an arborist and Atty once the trees are valued. I will be trying to get monitarily compensated for their value, which has been initially determined by a separate arborist to be between 20k-30k each. They plan on taking out approx 8-10 oaks that are over 24" diameter and 30-40 feet tall.
All the owners in our area already have a gas/oil Atty on retainer, waiting on notification from the PL company.
We have sent them our revisions on agreement and just got back their reply. We got the notice of eminent domain on same day. I totally agree that ED process is used as a sledge hammer against ranchers. This is the fourth pipe going through our property and there will be more as this is now a corridor. It's amazing that they have so much power in this process and we have to negotiate blindly on the fair value of the easement.
Most ranchers will cave in to avoid the ED process.
Most ranchers will cave in to avoid the ED process.
It's definitely a process that has expanded beyond it's original scope and the rules have been watered down to benefit businesses. Government as usual.
If you have pipeline going through your property and aren't using David Or Warren Wallace out of Sonora to deal with the midstream company you are shorting yourself. They are sips but good guys and damn good at what they do. Best in West Texas by far.
Pm sent. Have one going thru now. They have destroyed our fragile county roads with the heavy haul trucks and equipment, costing the county and tax payers God knows how much in the long term. It is clear that most of our elected county officials are working for the pipeline industry and not the tax payers.
While it takes three years for a criminal felon to go to trail, our county judges rush these e.d. Cases Thur the court system and give the companies use and possession to complete the pipe line in just a couple months. And In Texas the law is completely on their side.
While it takes three years for a criminal felon to go to trail, our county judges rush these e.d. Cases Thur the court system and give the companies use and possession to complete the pipe line in just a couple months. And In Texas the law is completely on their side.
My experience with Eminent Domain through my company is that some of these companies will start the proceedings at the first sign that negotiations are going to go perfectly their way because it's a long slow process that they want to already have in the works should negotiations fail. Also, their term negotiations are likely being done by a lawyer who has no clue what is operationally reasonable. My advice for settling on terms would be to try and get someone other than their lawyer involved in the conversation as they are more likely than the lawyer to make reasonable operational concessions.
As for the law, it's infuriating that our state legislature can't seem to get an ED reform bill to the governors desk. It's almost like a lot of our state Rs don't actually believe in private property rights...
As for the law, it's infuriating that our state legislature can't seem to get an ED reform bill to the governors desk. It's almost like a lot of our state Rs don't actually believe in private property rights...
Hold out as long as you can before you go to court. That final offer will be more than you receive in court.
Doc Hayworth said:
Eminent domain rights given to private companies by our government is BS. ED was suppose to be for state and fed agencies for the good of the public. Now it's basically a method for private companies to get land cheap and make huge profits after greasing the palms of elected officials.
That company will be coming thru my property as well. Their route shows to be going thru the middle of a big area of 150 yr old oaks. I will be hiring an arborist and Atty once the trees are valued. I will be trying to get monitarily compensated for their value, which has been initially determined by a separate arborist to be between 20k-30k each. They plan on taking out approx 8-10 oaks that are over 24" diameter and 30-40 feet tall.
All the owners in our area already have a gas/oil Atty on retainer, waiting on notification from the PL company.
Trees are not compensable as separate items in eminent domain proceedings. See White v. Natural Gas. "In eminent domain proceedings our courts have consistently held that the landowner cannot recover for damage to crops, loss of trees, ornamental shrubs, etc. as separate items. These features can be taken into consideration in determining compensation only insofar as they affect the market value of land, as land." https://law.justia.com/cases/texas/supreme-court/1969/b-1347-0.html
In other words, you can't take the value of the land, and then add the trees to it. Their value is tied to the value of the land, as land.
Actually we got a great e.d. Bill to the governors desk in 2007. H.B. 2006. After being overwhelmingly passed by both the Texas house and senate, then governor Rick Perry refused to sign it and it was dead 30 days after the session ended. Subsequently, all of the farm and ranch groups supported Kay Bailey Hutchinson in her bid to run against the great white coyote killer but the oil and gas lobby bankrolled Perry's re election.BlackGoldAg2011 said:
My experience with Eminent Domain through my company is that some of these companies will start the proceedings at the first sign that negotiations are going to go perfectly their way because it's a long slow process that they want to already have in the works should negotiations fail. Also, their term negotiations are likely being done by a lawyer who has no clue what is operationally reasonable. My advice for settling on terms would be to try and get someone other than their lawyer involved in the conversation as they are more likely than the lawyer to make reasonable operational concessions.
As for the law, it's infuriating that our state legislature can't seem to get an ED reform bill to the governors desk. It's almost like a lot of our state Rs don't actually believe in private property rights...
It was obvious that many of the reps and senators who voted for the e.d. Bill in 2007 were trolling the supporters of the bill and knew all along Perry was in the pocket and would not sign it after the session ended.
Can I ask where in Mccolluch county?
He is correct about the tree value being tied to the over all value of the land. I have been involved in several situations where a tree inventory had to be performed on a ROW prior to purchase, a value per species of tree and a linear value was then asigned to DBH of tree species. This helped to assign an actual land value for the ROW ( land value +value of trees=actual value of land).
Mas89 said:
Pm sent. Have one going thru now. They have destroyed our fragile county roads with the heavy haul trucks and equipment, costing the county and tax payers God knows how much in the long term. It is clear that most of our elected county officials are working for the pipeline industry and not the tax payers.
While it takes three years for a criminal felon to go to trail, our county judges rush these e.d. Cases Thur the court system and give the companies use and possession to complete the pipe line in just a couple months. And In Texas the law is completely on their side.
Chapter 21 of the Texas Property Code lays out the timeline for the sequence of events that must happen. If the condemnor violates any item of that timeline, the condemnation can be abated, and fees assessed. Yes, the timeline is fast, but that's only up to the point of possession. After that, people can take their time, and that doesn't mean you can't continue to negotiate.
Very few condemnation cases make it to trial; only about 20% even make it to a special commissioners hearing, and even fewer make it to trial.
But those kinds of oak trees in that county make the land MUCH more valuable from a non-grazing standpoint.
cledus6150 said:
He is correct about the tree value being tied to the over all value of the land. I have been involved in several situations where a tree inventory had to be performed on a ROW prior to purchase, a value per species of tree and a linear value was then asigned to DBH of tree species. This helped to assign an actual land value for the ROW ( land value +value of trees=actual value of land).
That works in very specific cases like timber or orchards. If you are taking ranch land sales that already have mature trees on them, and then add value for the individual trees, that's double counting for the tree value. The value of those trees is already baked into the value of the land.
Tiffany Lashmet @ agrilife is an expert. You might not like teh answers, but they are accurate as it pertains to the law.
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About the Texas Agriculture Law Blog: Welcome to the Texas Ag Law Blog! This blog is an outreach project of the Texas Agrilife Extension Service. The goal of this blog is to keep you up to date on various legal issues impacting Texas agriculture. We are specifically focused on water law, oil and gas law, leasing, property rights, right to farm statutes, and dealing with animal rights activists. We hope to provide a variety of information from current news stories, to recent legal opinions, to the basics of various legal topics. This blog has been named one of the American Bar Association Top 100 "Blawgs" three years (2014, 2015, 2016). We're glad you are here!
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https://agrilife.org/texasaglaw/about/
About the Texas Agriculture Law Blog: Welcome to the Texas Ag Law Blog! This blog is an outreach project of the Texas Agrilife Extension Service. The goal of this blog is to keep you up to date on various legal issues impacting Texas agriculture. We are specifically focused on water law, oil and gas law, leasing, property rights, right to farm statutes, and dealing with animal rights activists. We hope to provide a variety of information from current news stories, to recent legal opinions, to the basics of various legal topics. This blog has been named one of the American Bar Association Top 100 "Blawgs" three years (2014, 2015, 2016). We're glad you are here!
Tiffany may be contacted via email at tdowell@tamu.edu"]tdowell@tamu.edu or by phone at 806-677-5681.
OnlyForNow said:
But those kinds of oak trees in that county make the land MUCH more valuable from a non-grazing standpoint.
Then you use land sales from the market that have similar trees. The only way you can recover compensation in this case is that if the pipeline takes out enough trees that's it materially impacts the value of the remaining land. I've actually done that in the past, where a property had some trees, and the acquisition took out all of them. So I used sales that had trees to value the whole before the acquisition, and sales without trees to value the remainder after the acquisition. In that case, it was about a 10% damage to the remainder land value. But you can't say this live oak is worth $5,000, and you're taking 10 of them, so you owe me $50,000. That's not how it works.
Yes the Texas Property Code follows the golden rule in Texas. Who ever pays the politicians the most gold makes the rules.
The property code was amended in 2011 to give more protections to landowners than they've had since I can remember. Groups like the Texas Farm Bureau and the Texas Cattle Raisers Association we the driving force that got these laws changed.
Regarding the trees, they can HDD under them deep enough to not affect them, but you may have to give up something else in the agreement.
I was a pipeline contractor for 12 years and now work on the other side of the fence.
I was a pipeline contractor for 12 years and now work on the other side of the fence.
Cody
Fightin Texas Aggie c/o 04
Fightin Texas Aggie c/o 04
Yes there have been several improvements over the years but generally speaking the major needed changes have been defeated every session.
This years session was a real chit show with Midland Rep Tom Craddick killing the e. d. Bill after the oil and gas lobby negotiators had supposedly reached an agreement for a meaningful bill with the bills sponsors.
Old Tom has been a Texas state legislator serving Midland well for 51 years now. He was first elected to the Tx house in 1968, the same year Nixon was elected president. His daughter Christi Craddick is one of our three elected railroad commissioners.
This years session was a real chit show with Midland Rep Tom Craddick killing the e. d. Bill after the oil and gas lobby negotiators had supposedly reached an agreement for a meaningful bill with the bills sponsors.
Old Tom has been a Texas state legislator serving Midland well for 51 years now. He was first elected to the Tx house in 1968, the same year Nixon was elected president. His daughter Christi Craddick is one of our three elected railroad commissioners.
Actually when that is exactly how it works, especially when a certified arborist has assigned a value to said trees. You can ask Marathon Oil and several other companies in the Eagleford as they have had to pay for tree damages during pad and pipeline development. Trees have there own intrinsic value that adds to the value of the land and each tree can be assessed for a value and the overall land value is then increased.
Before it gets to ED, you can put a price per tree.
OnlyForNow said:
Before it gets to ED, you can put a price per tree.
That doesn't mean the other side has to accept it. When it gets to a hearing, any good eminent domain attorney will get that thrown out with relative ease.
Unless an evaluation of the property in question has been performed with an arborists input provided, that professional just provided a legal assessment of an added value to the land. Can it be beat, well yes anything can be beat, is it likely that a land owner will pay an arborist to come evaluate his land/trees not very likely.This is a very tough situation that does take professionals to make work but it does work and does happen.
*this does not work on mesquite (under 20"DBH ) or any invasive species
*this does not work on mesquite (under 20"DBH ) or any invasive species
cledus6150 said:
Actually when that is exactly how it works, especially when a certified arborist has assigned a value to said trees. You can ask Marathon Oil and several other companies in the Eagleford as they have had to pay for tree damages during pad and pipeline development. Trees have there own intrinsic value that adds to the value of the land and each tree can be assessed for a value and the overall land value is then increased.
That may work in individual damage cases, but it does not fly in eminent domain. The case law is very clear: in eminent domain, you do not get paid for individual trees. The tree value is tied to the land. They can choose to pay whatever they want to, and they may even hire an arborist to tell them what the trees are worth. But if you go to eminent domain, testimony by an arborist will be thrown out except for in very specific cases, and it's easy to see why. An arborist has valued a real estate item, and they aren't a real estate appraiser. This, they aren't qualified to do that.
I feel for you. I'm afraid we're in the golden age for the pipeline boys right now.
You're dealing with the Enterprise guys. The Red Oak pipeline that Phillips 66 announced a few months ago has also got the ROW men out in full force right now. I've heard from them, in fact.
Red Oak goes from Cushing to Wichita Falls to Sealy to Corpus. That's a big project that will affect quite a few landowners.
ED reform fizzled again in the '19 legislative session. I submitted some concrete suggestions to improve the Special Commissioners hearing process, but they didn't make it into the bill, I'm afraid.
I've always contended that if the guys planning the routes were going across their own property, things would be a bit different than they are now. Monetary compensation is in many cases a secondary issue to most landowners. Routing, depth and taking care not to screw up ongoing ranching operations are primary, I'd say.
Good luck. We're outgunned, and have to try to make the best of a bad situation. Yes, these pipelines are needed, but given the tremendous ongoing economic benefits of pipelines (and make no mistake, pipelines are forever) , I'd say landowners, in many cases, are inadequately compensated for their property.
You're dealing with the Enterprise guys. The Red Oak pipeline that Phillips 66 announced a few months ago has also got the ROW men out in full force right now. I've heard from them, in fact.
Red Oak goes from Cushing to Wichita Falls to Sealy to Corpus. That's a big project that will affect quite a few landowners.
ED reform fizzled again in the '19 legislative session. I submitted some concrete suggestions to improve the Special Commissioners hearing process, but they didn't make it into the bill, I'm afraid.
I've always contended that if the guys planning the routes were going across their own property, things would be a bit different than they are now. Monetary compensation is in many cases a secondary issue to most landowners. Routing, depth and taking care not to screw up ongoing ranching operations are primary, I'd say.
Good luck. We're outgunned, and have to try to make the best of a bad situation. Yes, these pipelines are needed, but given the tremendous ongoing economic benefits of pipelines (and make no mistake, pipelines are forever) , I'd say landowners, in many cases, are inadequately compensated for their property.
I will say this in my experience as an Environmental Permitting Specialist who has literally delineated/permitted/managed hundreds of projects throughout Texas and many other gulf coast states. Having continual and on-going experience in west and southwest Texas, with linear and other types of projects that are granted ED. Trees can and do have a impact on the value of the land and will increase the value of the land. No you will not get two payments one for land and one for trees. Say land is worth $5,000/acre and each Quercus stellata that is 12+" DBH is valued at $1,000 (often a range of DBH and will increase substantially for larger DBH trees) if the project ED's 1 acre with 10 qualifying trees on it then the value of said land to be ED is $15,000.
I've been doing eminent domain work for over 20 years now, and I can tell you for certain that your methodology was the exact methodology that was struck down in White v. Natural Gas, City of Austin v. Long, Taylor v. City of Austin, and Texas and St. Louis Railway Company v. Matthews, and this case law goes all the way back to the late 1800s.
The inherent problem with your methodology is that almost every single time I see someone try and pull this off, they end up double-compensating for the trees, because the land value they start with has tree value in it already. The other way they screw it up is if you apply their method to other similar properties, you end up with a number that is well beyond what the property actually sold for in the market.
You can make adjustments for tree cover, and it is perfectly fine to do when you have data in the market that tells you the trees add value. What you cannot do is take the land value, add the incremental value for the trees, and expect it to pass muster at a trial. For negotiations and even special commissioners hearings, you might get away with it. But the case law is pretty clear and settled when it comes to paying for native trees.
The inherent problem with your methodology is that almost every single time I see someone try and pull this off, they end up double-compensating for the trees, because the land value they start with has tree value in it already. The other way they screw it up is if you apply their method to other similar properties, you end up with a number that is well beyond what the property actually sold for in the market.
You can make adjustments for tree cover, and it is perfectly fine to do when you have data in the market that tells you the trees add value. What you cannot do is take the land value, add the incremental value for the trees, and expect it to pass muster at a trial. For negotiations and even special commissioners hearings, you might get away with it. But the case law is pretty clear and settled when it comes to paying for native trees.
Ok, as i said before it can and still does work I can tell you for a fact that Marathon has been in the past forced to pay for taking Native tree species due to pipeline and pad development despite the use of ED. It can and does work if the landowner has the right legal and professional backing. As you work in ED I work with Oil and Gas routing and permitting, environmental issues are what i handle for these companies. They do pay out for trees and pay out big for them, so long as the land owner has all of his ducks in a row. Then some one like me has to come along and verify that the tree counts and evaluations are accurate and determine if there is a viable re-route or alternative.
They can negotiate on whatever the heck they want to. And quite honestly, giving someone an extra $10,000 for their trees to settle a parcel or a case isn't the worst strategy out there. But if you go to trial in an eminent domain case, that testimony will be struck.
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