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Condemnation For Mining Purposes

Roger W. Jeppson, Mark G. Simons, Proceedings of 43d Annual Rocky Mountain Mineral Law Institute (1997)

Many western states have constitutions and/or statutes which authorize the private use of the power of condemnation in one way or another for mining or mining related purposes.1 This paper will review the general applicability of such constitutional and statutory enactments and the general prerequisites for the exercise of eminent domain powers. Further, this paper will review the desirability, or lack thereof, of implementing [13-3] condemnation to secure land for mining purposes.2

§ 13.02 The Ability of a Private Individual or Corporation to Condemn Land for Mining Purposes is Founded upon the Sovereign's Right of Eminent Domain

Eminent domain is defined as the right of a sovereign power to take an individual's private property for reasons and/or uses enumerated by the sovereign.3 The right of eminent domain is a power that is inherent in the sovereign or governing body. The power does not derive from any extraneous grant or endowment of authority.4 This principle was recognized by the Supreme Court in Boom Co. v. Patterson,5 as follows: The right of eminent domain, that is, the right to take private property for public uses, appertains to every independent government. It requires no constitutional recognition; it is an attribute of sovereignty.6

The sovereign power may exercise the right of eminent domain unless such right has otherwise been limit