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Condemnation of Mining Properties—Related Aspects of Just Compensation

Robert S. Campbell, Jr., Proceedings of 15th Annual Rocky Mountain Mineral Law Institute (1969)

This is Part II of a paper delivered to this Institute, Part I of which, entitled Condemnation of Mining PropertiesReflections on the Substantive Power of Eminent Domain, was presented at the 14th Annual Rocky Mountain Mineral Meeting.1 Part I was directed to an analysis of the substantive aspects of the eminent domain power in general, and the circumstances under which a mining operator could condemn private property of another as well as those situations in which mining property, itself, was the subject of an attempted eminent domain acquisition for another or higher and more necessary public use. Specifically, the focal topics of investigation in Part I centered upon the integrity and vulnerability of our system of private property holding vis-a-vis the right or power of the government or other legislatively authorized body to involuntarily take property; the power of a mining operator to condemn;2 the conditions under which the fee simple interest can be taken;3 the acquisition of surface or underground mining easements;4 the concept of the shifting easement;5 and the rather inflammatory issue of the power to condemn a stripping easment through and [306] over coterminous property in the development and expansion of the condemnor's ore body.6

Part II of this Article assumes, arguendo, that mining property, along with other classes and types of property, is legally