The Expanding Concept of Just Compensation and the Role of the Appraiser

Compensation for injury to business profits in eminent domain actions has long been the focus of controversy. Historically, the federal and state courts explicitly excluded profits or goodwill from a determination of an award. Under this scheme the measure of compensation quickly settled on the market value of the condemned realty. Where injury to profits was especially evident, the courts sometimes allowed future returns to the business to be included as a factor which would influence the market value. They also developed, in some states, the “specialty” doctrine where the business was unique in any number of ways. Still, the measures of compensation adopted in these cases may have been inadequate to return the business owner to the same financial position as before a taking. In this paper, we review an expanded theory of just compensation currently emerging in the courts and indicate the measure of compensation necessary to effectively return the business owner to the same financial position after a taking as before. We also show that traditional awards have been less than adequate in cases where the cash flows accruing to a business are dependent, in some fashion, on the expropriated realty. Finally, we indicate the nature of awards under a jurisdiction which is unique in the sense that it explicitly requires consideration of all elements of loss resulting from expropriation of business properties. Those awards represent a departure from previous compensation measures and conform to those indicated by the theory developed in this paper. The role of the appraiser is outlined under this expanded system of compensation.