April 24, 2025
Utah Court of Appeals
2025 UT App 54 (click for full text of opinion)
The Utah Court of Appeals held that a private landowner has no authority to exercise eminent domain to condemn easement rights for private development.
WE Five LLC owns a parcel of landlocked property that originated from a larger parcel that was divided into several separate parcels located along a private driveway, Oberland Road. At the time of division, WE Five’s parcel was granted an express easement for access via Oberland Road, but the easement did not include any right to construct utilities across the other properties, nor did the WE Five property have direct access to water or sewer lines at the time of severance. After attempting unsuccessfully to negotiate easements for water and sewer lines over neighboring properties, WE Five informed the other owners that it would seek the easements through eminent domain, and filed suit. The district court ruled, however, that the eminent domain statute did not apply in this case.
On appeal, the Utah Court of Appeals expounded that the mere installation of pipes is not a public use under the eminent domain statute, whereas here the pipes would be for the sole benefit of the developer, and the mere possibility of any potential future use by a local municipality or sewer district does not qualify a private condemnation as a public use. The Court also clarified that even though the word “person” in the eminent domain statute can apply to private entities, such a person must also be “in charge of the public use” to have eminent domain power. Though WE Five would be the condemnor, it would not be the provider of the public use – water and sewer services to the WE Five property. The Court concluded, then, that the case should be dismissed because Utah’s eminent domain statutes do not confer upon WE Five the right to exercise eminent domain authority.
