{"id":4429,"date":"2017-08-10T03:27:55","date_gmt":"2017-08-10T03:27:55","guid":{"rendered":"https:\/\/reunitethestates.org\/?page_id=4429"},"modified":"2017-08-14T01:38:34","modified_gmt":"2017-08-14T01:38:34","slug":"rule-71-1-condemning-real-or-personal-property","status":"publish","type":"page","link":"https:\/\/reunitethestates.org\/?page_id=4429","title":{"rendered":"Rule 71.1 \u2013 Condemning Real or Personal Property"},"content":{"rendered":"

(a)\u00a0Applicability of Other Rules<\/strong>.\u00a0These rules govern proceedings to condemn real and personal property by eminent domain, except as this rule provides otherwise.<\/span><\/p>\n

(b)\u00a0Joinder of Properties<\/strong>.\u00a0The plaintiff may join separate pieces of property in a single action, no matter whether they are owned by the same persons or sought for the same use.<\/span><\/p>\n

(c)\u00a0Complaint<\/strong>.<\/span><\/p>\n

(1)\u00a0Caption.<\/em>\u00a0The complaint must contain a caption as provided in\u00a0Rule 10(a)<\/a>. The plaintiff must, however, name as defendants both the property\u2014designated generally by kind, quantity, and location\u2014and at least one owner of some part of or interest in the property.<\/span><\/p>\n

(2)\u00a0Contents.<\/em>\u00a0The complaint must contain a short and plain statement of the following:<\/span><\/p>\n

(A) the authority for the taking;<\/span><\/p>\n

(B) the uses for which the property is to be taken;<\/span><\/p>\n

(C) a description sufficient to identify the property;<\/span><\/p>\n

(D) the interests to be acquired; and<\/span><\/p>\n

(E) for each piece of property, a designation of each defendant who has been joined as an owner or owner of an interest in it.<\/span><\/p>\n

(3)\u00a0Parties.<\/em>\u00a0When the action commences, the plaintiff need join as defendants only those persons who have or claim an interest in the property and whose names are then known. But before any hearing on compensation, the plaintiff must add as defendants all those persons who have or claim an interest and whose names have become known or can be found by a reasonably diligent search of the records, considering both the property\u2019s character and value and the interests to be acquired. All others may be made defendants under the designation \u201cUnknown Owners.\u201d<\/span><\/p>\n

(4)\u00a0Procedure.<\/em>\u00a0Notice must be served on all defendants as provided in Rule\u00a071.1(d), whether they were named as defendants when the action commenced or were added later. A defendant may answer as provided in Rule\u00a071.1(e). The court, meanwhile, may order any distribution of a deposit that the facts warrant.<\/span><\/p>\n

(5)\u00a0Filing; Additional Copies.<\/em>\u00a0In addition to filing the complaint, the plaintiff must give the clerk at least one copy for the defendants\u2019 use and additional copies at the request of the clerk or a defendant.<\/span><\/p>\n

(d)\u00a0Process<\/strong>.<\/span><\/p>\n

(1)\u00a0Delivering Notice to the Clerk.<\/em>\u00a0On filing a complaint, the plaintiff must promptly deliver to the clerk joint or several notices directed to the named defendants. When adding defendants, the plaintiff must deliver to the clerk additional notices directed to the new defendants.<\/span><\/p>\n

(2)\u00a0Contents of the Notice.<\/em><\/span><\/p>\n

(A)\u00a0Main Contents.<\/em>\u00a0Each notice must name the court, the title of the action, and the defendant to whom it is directed. It must describe the property sufficiently to identify it, but need not describe any property other than that to be taken from the named defendant. The notice must also state:<\/span><\/p>\n

(i) that the action is to condemn property;<\/span><\/p>\n

(ii) the interest to be taken;<\/span><\/p>\n

(iii) the authority for the taking;<\/span><\/p>\n

(iv) the uses for which the property is to be taken;<\/span><\/p>\n

(v) that the defendant may serve an answer on the plaintiff\u2019s attorney within 21 days after being served with the notice;<\/span><\/p>\n

(vi) that the failure to so serve an answer constitutes consent to the taking and to the court\u2019s authority to proceed with the action and fix the compensation; and<\/span><\/p>\n

(vii) that a defendant who does not serve an answer may file a notice of appearance.<\/span><\/p>\n

(B)\u00a0Conclusion.<\/em>\u00a0The notice must conclude with the name, telephone number, and e-mail address of the plaintiff\u2019s attorney and an address within the district in which the action is brought where the attorney may be served.<\/span><\/p>\n

(3)\u00a0Serving the Notice.<\/em><\/span><\/p>\n

(A)\u00a0Personal Service.<\/em>\u00a0When a defendant whose address is known resides within the United States or a territory subject to the administrative or judicial jurisdiction of the United States, personal service of the notice (without a copy of the complaint) must be made in accordance with\u00a0Rule 4<\/a>.<\/span><\/p>\n

(B)\u00a0Service by Publication.<\/em><\/span><\/p>\n

(i) A defendant may be served by publication only when the plaintiff\u2019s attorney files a certificate stating that the attorney believes the defendant cannot be personally served, because after diligent inquiry within the state where the complaint is filed, the defendant\u2019s place of residence is still unknown or, if known, that it is beyond the territorial limits of personal service. Service is then made by publishing the notice\u2014once a week for at least 3 successive weeks\u2014in a newspaper published in the county where the property is located or, if there is no such newspaper, in a newspaper with general circulation where the property is located. Before the last publication, a copy of the notice must also be mailed to every defendant who cannot be personally served but whose place of residence is then known. Unknown owners may be served by publication in the same manner by a notice addressed to \u201cUnknown Owners.\u201d<\/span><\/p>\n

(ii) Service by publication is complete on the date of the last publication. The plaintiff\u2019s attorney must prove publication and mailing by a certificate, attach a printed copy of the published notice, and mark on the copy the newspaper\u2019s name and the dates of publication.<\/span><\/p>\n

(4)\u00a0Effect of Delivery and Service.<\/em>\u00a0Delivering the notice to the clerk and serving it have the same effect as serving a summons under\u00a0Rule 4<\/a>.<\/span><\/p>\n

(5)\u00a0Amending the Notice; Proof of Service and Amending the Proof.<\/em>\u00a0Rule 4(a)(2) <\/a>governs amending the notice.\u00a0Rule 4(l<\/em>)<\/a>\u00a0governs proof of service and amending it.<\/span><\/p>\n

(e)\u00a0Appearance or Answer<\/strong>.<\/span><\/p>\n

(1)\u00a0Notice of Appearance.<\/em>\u00a0A defendant that has no objection or defense to the taking of its property may serve a notice of appearance designating the property in which it claims an interest. The defendant must then be given notice of all later proceedings affecting the defendant.<\/span><\/p>\n

(2)\u00a0Answer.<\/em>\u00a0A defendant that has an objection or defense to the taking must serve an answer within 21 days after being served with the notice. The answer must:<\/span><\/p>\n

(A) identify the property in which the defendant claims an interest;<\/span><\/p>\n

(B) state the nature and extent of the interest; and<\/span><\/p>\n

(C) state all the defendant\u2019s objections and defenses to the taking.<\/span><\/p>\n

(3)\u00a0Waiver of Other Objections and Defenses; Evidence on Compensation.<\/em>\u00a0A defendant waives all objections and defenses not stated in its answer. No other pleading or motion asserting an additional objection or defense is allowed. But at the trial on compensation, a defendant\u2014whether or not it has previously appeared or answered\u2014may present evidence on the amount of compensation to be paid and may share in the award.<\/span><\/p>\n

(f)\u00a0Amending Pleadings<\/strong>.\u00a0Without leave of court, the plaintiff may\u2014as often as it wants\u2014amend the complaint at any time before the trial on compensation. But no amendment may be made if it would result in a dismissal inconsistent with Rule 71.1(i)(1) or (2). The plaintiff need not serve a copy of an amendment, but must serve notice of the filing, as provided in Rule 5(b)<\/a>, on every affected party who has appeared and, as provided in Rule\u00a071.1(d), on every affected party who has not appeared. In addition, the plaintiff must give the clerk at least one copy of each amendment for the defendants\u2019 use, and additional copies at the request of the clerk or a defendant. A defendant may appear or answer in the time and manner and with the same effect as provided in Rule\u00a071.1(e).<\/span><\/p>\n

(g)\u00a0Substituting Parties<\/strong>.\u00a0If a defendant dies, becomes incompetent, or transfers an interest after being joined, the court may, on motion and notice of hearing, order that the proper party be substituted. Service of the motion and notice on a nonparty must be made as provided in Rule 71.1(d)(3).<\/span><\/p>\n

(h)\u00a0Trial of the Issues<\/strong>.<\/span><\/p>\n

(1)\u00a0Issues Other Than Compensation; Compensation.<\/em>\u00a0In an action involving eminent domain under federal law, the court tries all issues, including compensation, except when compensation must be determined:<\/span><\/p>\n

(A) by any tribunal specially constituted by a federal statute to determine compensation; or<\/span><\/p>\n

(B) if there is no such tribunal, by a jury when a party demands one within the time to answer or within any additional time the court sets, unless the court appoints a commission.<\/span><\/p>\n

(2)\u00a0Appointing a Commission; Commission\u2019s Powers and Report.<\/em><\/span><\/p>\n

(A)\u00a0Reasons for Appointing.<\/em>\u00a0If a party has demanded a jury, the court may instead appoint a three-person commission to determine compensation because of the character, location, or quantity of the property to be condemned or for other just reasons.<\/span><\/p>\n

(B)\u00a0Alternate Commissioners.<\/em>\u00a0The court may appoint up to two additional persons to serve as alternate commissioners to hear the case and replace commissioners who, before a decision is filed, the court finds unable or disqualified to perform their duties. Once the commission renders its final decision, the court must discharge any alternate who has not replaced a commissioner.<\/span><\/p>\n

(C)\u00a0Examining the Prospective Commissioners.<\/em>\u00a0Before making its appointments, the court must advise the parties of the identity and qualifications of each prospective commissioner and alternate, and may permit the parties to examine them. The parties may not suggest appointees, but for good cause may object to a prospective commissioner or alternate.<\/span><\/p>\n

(D)\u00a0Commission\u2019s Powers and Report.<\/em>\u00a0A commission has the powers of a master under\u00a0Rule 53(c)<\/a>. Its action and report are determined by a majority.\u00a0Rule 53(d), (e), and (f)<\/a> apply to its action and report.<\/span><\/p>\n

(i)\u00a0Dismissal of the Action or a Defendant<\/strong>.<\/span><\/p>\n

(1)\u00a0Dismissing the Action.<\/em><\/span><\/p>\n

(A)\u00a0By the Plaintiff.<\/em>\u00a0If no compensation hearing on a piece of property has begun, and if the plaintiff has not acquired title or a lesser interest or taken possession, the plaintiff may, without a court order, dismiss the action as to that property by filing a notice of dismissal briefly describing the property.<\/span><\/p>\n

(B)\u00a0By Stipulation.<\/em>\u00a0Before a judgment is entered vesting the plaintiff with title or a lesser interest in or possession of property, the plaintiff and affected defendants may, without a court order, dismiss the action in whole or in part by filing a stipulation of dismissal. And if the parties so stipulate, the court may vacate a judgment already entered.<\/span><\/p>\n

(C)\u00a0By Court Order.<\/em>\u00a0At any time before compensation has been determined and paid, the court may, after a motion and hearing, dismiss the action as to a piece of property. But if the plaintiff has already taken title, a lesser interest, or possession as to any part of it, the court must award compensation for the title, lesser interest, or possession taken.<\/span><\/p>\n

(2)\u00a0Dismissing a Defendant.<\/em>\u00a0The court may at any time dismiss a defendant who was unnecessarily or improperly joined.<\/span><\/p>\n

(3)\u00a0Effect.<\/em>\u00a0A dismissal is without prejudice unless otherwise stated in the notice, stipulation, or court order.<\/span><\/p>\n

(j)\u00a0Deposit and Its Distribution<\/strong>.<\/span><\/p>\n

(1)\u00a0Deposit.<\/em>\u00a0The plaintiff must deposit with the court any money required by law as a condition to the exercise of eminent domain and may make a deposit when allowed by statute.<\/span><\/p>\n

(2)\u00a0Distribution; Adjusting Distribution.<\/em>\u00a0After a deposit, the court and attorneys must expedite the proceedings so as to distribute the deposit and to determine and pay compensation. If the compensation finally awarded to a defendant exceeds the amount distributed to that defendant, the court must enter judgment against the plaintiff for the deficiency. If the compensation awarded to a defendant is less than the amount distributed to that defendant, the court must enter judgment against that defendant for the overpayment.<\/span><\/p>\n

(k)\u00a0Condemnation Under a State\u2019s Power of Eminent Domain<\/strong>.\u00a0This rule governs an action involving eminent domain under state law. But if state law provides for trying an issue by jury\u2014or for trying the issue of compensation by jury or commission or both\u2014that law governs.<\/span><\/p>\n

(l<\/em>) Costs<\/strong>. Costs are not subject to\u00a0Rule 54(d)<\/a>.<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"

(a)\u00a0Applicability of Other Rules.\u00a0These rules govern proceedings to condemn real and personal property by eminent domain, except as this rule provides otherwise. (b)\u00a0Joinder of Properties.\u00a0The plaintiff may join separate pieces of property in a single action, no matter whether they are owned by the same persons or sought for the same use. (c)\u00a0Complaint. (1)\u00a0Caption.\u00a0The complaint … Continue reading Rule 71.1 \u2013 Condemning Real or Personal Property<\/span> →<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"parent":4103,"menu_order":0,"comment_status":"closed","ping_status":"closed","template":"","meta":{"footnotes":""},"class_list":["post-4429","page","type-page","status-publish","hentry"],"_links":{"self":[{"href":"https:\/\/reunitethestates.org\/index.php?rest_route=\/wp\/v2\/pages\/4429","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/reunitethestates.org\/index.php?rest_route=\/wp\/v2\/pages"}],"about":[{"href":"https:\/\/reunitethestates.org\/index.php?rest_route=\/wp\/v2\/types\/page"}],"author":[{"embeddable":true,"href":"https:\/\/reunitethestates.org\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/reunitethestates.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=4429"}],"version-history":[{"count":2,"href":"https:\/\/reunitethestates.org\/index.php?rest_route=\/wp\/v2\/pages\/4429\/revisions"}],"predecessor-version":[{"id":5061,"href":"https:\/\/reunitethestates.org\/index.php?rest_route=\/wp\/v2\/pages\/4429\/revisions\/5061"}],"up":[{"embeddable":true,"href":"https:\/\/reunitethestates.org\/index.php?rest_route=\/wp\/v2\/pages\/4103"}],"wp:attachment":[{"href":"https:\/\/reunitethestates.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=4429"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}