In Texas, many energy companies have the power of eminent domain, or “condemnation.” This means that they can take your property as long as it is put to a public use and you receive just compensation for it. In West Texas, companies often propose to take individual farms and ranches in order to build oil or gas pipelines, solar energy arrays or wind farms.
If you have been contacted by an energy company that wants your land, you are not powerless. You have the right to fight the condemnation of your land. One way you can do this is by limiting the area to be taken.
It’s quite possible the energy company doesn’t need your entire parcel. It may only need a guaranteed way to cross your land to reach other projects. Or, it may need a portion of your land and guaranteed access to that portion. If this is the case, you may be able to negotiate an easement or a right of way.
An easement is a legal interest in the property. It is a non-possessory interest, meaning that it does not give its owner the right to fully possess the land. It gives its owner a right to use part of another person’s property.
A right of way is a type of easement. It gives its owner the right to travel over part of another person’s property.
How can I find out if an easement or right of way is an option?
The first thing to do is have a lawyer who is experienced in energy law to review the energy company’s letter or proposal. It may make clear that the company wants the entire parcel, or it may already say that the company is only seeking an easement or right of way.
Once you know what the company wants, you can ask if a lesser portion of the land would still meet its goals. You can also ask what the time period will be. If the company only wants the land for a prescribed period of time, it may be more willing to negotiate for an easement or right of way rather than condemning your entire parcel of land.
You should never sign an agreement with an energy company without first speaking to a lawyer who handles energy law and condemnation cases. The agreement the company first proposes will be written to serve the company’s interests – not yours.
I don’t want to give up any of my land. Can I fight the condemnation altogether?
Maybe. Your attorney will find out whether the energy company has the power of eminent domain and whether the land would be put to a public use. If the answer to either of those questions is no, you should be able to fight the condemnation of your land.
If the energy company does have the power of eminent domain and is planning to put your land to a public purpose, you may not be able to fight the condemnation. Instead, you could fight to limit the amount of land taken and to ensure that you receive fair compensation for the land that is taken.
An experienced energy law attorney can help you decide the best course of action in your particular case.