Wyoming's Eminent Domain Laws and Property Rights

The following responses are intended to provide general information about eminent domain laws in Wyoming. Such information does not constitute legal advice. Anyone interested in learning more about eminent domain law and the impact it may have on a given set of facts should consult with an OCA attorney or another attorney experienced in handling eminent domain cases.

• Who Can Exercise the Power of Eminent Domain?

  The State of Wyoming has the power to condemn real estate for certain public purposes. W.S. § 1-26-801. The State of Wyoming may delegate its power to cities and counties for the exercise of various governmental functions. State ex rel. State HWY Comm’n v. Meeker, 294 P. 2d 603 (Wyo. 1956); L.U. Sheep Co. v. Bd. of Cty. Comm’rs of Cty. Of Hot Springs, 790 P. 2d 663 (Wyo. 1990). The State has also delegated its power of eminent domain to private persons, associations, companies, and corporations to appropriate by condemnation a way of necessity. W.S. § 1-26-815; Bridle Bit Ranch Co. v. Basin Elec. Power Co-op., 118 P. 3d 996 (Wy. 2005). Private parties may also condemn for reservoirs, drains, flumes, or ditches or across the lands of others agricultural, mining, milling, domestic or sanitary purposes. Wyo. Const. Art. 1, § 32.

• What Are the Legal Requirements for Exercising the Power?

  Under Wyoming law, property can only be condemned when the public interest and necessity require use of eminent domain, the project is planned or located to provide the greatest public good and least private injury, and the property sought is necessary for the project. Property cannot be condemned if the condemnor intends to use the property for a private use unless it falls in the very limited exceptions under the state constitution, including for private ways of necessity or for reservoirs, drains, flumes, or ditches or across the lands of others for agricultural, minimum, milling domestic, or sanitary purposes. In all situations, just compensation must be paid for all property taken. Finally, the condemnor must make a good faith effort to negotiate and purchase the property prior to commencing the condemnation action.

• What Limitations or Defenses Exist?

  A party challenging the condemnation action can defeat it by proving the lack of necessity, bad faith or abuse of discretion by the condemning agency. Bd. of Cty. Comm'rs of Johnson Cty. v. Atter, 734 P. 2d 549 (Wyo. 1987). A party can also raise the defense that the condemnor planned or located the project in a manner that is not most compatible with the greatest public good and the least private injury. Finally, a defense can be raised that the condemnor did not negotiate in good faith prior to filing the condemnation action.

• What Constitutes a Public Purpose?

  Wyoming courts decide whether the intended use is a public use. This decision is influenced by local conditions and all the surrounding facts. However, the benefit need not be to the entire or a considerable portion of the community to be considered a public use. There need only be a benefit to some of the public. Associated Enterprises, Inc. v. Toltec Watershed Imp. Dist., 656 P. 2d 1144 (Wyo. 1983).

• How is Just Compensation Determined?

  Under Wyoming law, the measure of just compensation is the fair market value of the property taken as of the date of valuation. W.S. § 1-26-702(a). For partial takings, just compensation is the greater of the value of the property rights taken or the amount by which the fair market value of the entire property immediately before the taking exceeds the fair market value of the remainder immediately after the taking. W.S. § 1-26-702(b). Just compensation is determined as of the date when the condemnation action commences. Byrnes v. Johnson Cty. Comm’rs, 455 P.3d 693 (Wyo. 2020).

• How Is Fair Market Value Defined?

  In Wyoming, fair market value is defined as “the price which would be agreed to by an informed seller who is willing but not obligated to sell, and an informed buyer who is willing but not obligated to buy.” L.U. Sheep Co. v. Bd. of Cty. Comm'rs of Cty. of Hot Springs, 790 P.2d 663 (Wyo. 1990). Generally, the property’s fair market value is based on accepted appraisal techniques, which may include using different valuation approaches, including comparable sales. Barlow Ranch, Ltd. P'ship v. Greencore Pipeline Co. LLC, 301 P. 3d 75 (Wyo. 2013); Byrnes v. Johnson Cty. Comm’rs, 455 P. 3d 693 (Wyo. 2020).

• What About Recovering Damages to Remaining Property?

  Under Wyoming law, when a condemnor takes only a portion of the property, just compensation is the difference between the fair market value of the entire parcel before and after the taking and any damages that diminish the value of the remaining property. Miller v. Campbell Cty., 854 P. 2d 71 (Wyo. 1993). Damages other than to the property itself, such as personal loss, are not compensable unless the damages are a causative factor on the depreciation in the value of the land.

• Is the Landowner Entitled to Recover Reasonable Attorney Fees? Ex- pert Fees? Litigation Costs?

  In Wyoming, there are a few circumstances where an owner may be able to recover attorney fees and litigation expenses. One statute requires the condemnor to reimburse the property owner for all litigation expenses, including reasonable costs, disbursements and expenses, including attorney, appraisal, and engineering fees, associated with a condemnation proceeding, if the condemnor failed to negotiate in good faith. W.S. § 1-26-509(g). In addition, the property owner is entitled to recover their litigation expenses if the condemnor unlawfully entered the premises, caused damage to the property that was not reasonably necessary to the purpose of the entry, or failed to substantially comply with an order permitting entry. W.S. § 1-26-508. An action for condemnation may not be commenced until the condemning agency adopts a written resolution that complies the requirements of the Eminent Domain Act and that authorizes commencement and prosecution of the condemnation action. If this authorization is rescinded the condemning agency must pay the property owner’s litigation expenses. W.S. § 1-26-512. Attorney fees are also allowed when a court’s final judgement prevents the condemning agency from acquiring the property by condemnation, or if the condemning agency abandons its attempts to acquire the property by condemnation. Town of Wheatland v. Bellis Farms, Inc., 806 P. 2d 281 (Wyo. 1991).