[author: Robert Kuhn]
A central issue going to both the valuation of damages and the extent of a taking in eminent domain cases is whether the government or utility is required to take an entire parcel, beyond just a portion that may be required for the relevant project. This often arises in the context of an attempted partial taking, where the condemning agency, at least initially, intends to take only a portion of the property owner’s land for public use. How and in what circumstances condemning agencies must take ownership of entire parcels and pay the applicable fair market value can have significant implications for property owners. A look into Michigan’s standard and its comparison to federal law adds context.
Under established eminent domain law, just compensation must not only include the “fair market value of land actually taken,” but also “damages for injuries to the owner's remaining lands, frequently called ‘severance damages.’” 26 Am. Jur. 2d Eminent Domain § 281; see also United States v Miller, 317 US 369, 376 (1943). Therefore, the condemning authority must compensate property owners for the full harm to their property interests, not just an isolated and narrow valuation of the specific property taken for the project that excludes consideration of the property’s use and value as a cohesive whole.
The “remnant” theory, as it is often called, builds from this foundation. In cases of significant damage to the remainder, the theory calls for compensation for the full extent of damage in addition to the condemning authority taking ownership of the remainder. By taking possession of the property and paying compensation, the practice ensures that the property owner is not left with an unusable, uneconomic, or impractical remnant of property that the owner did not intend to possess when the parcel was initially acquired. See 2A Nichols on Eminent Domain § 7.06(b) (discussing remnant theory). It also facilitates efficient maintenance and disposition of the property by placing ownership in the hands of the condemning authority who controls the rest of the land, potentially increasing the land’s use and value. Further, the amount of “severance damages” caused to the remainder of the parcel as a result of a partial taking can be substantially equivalent to the price of purchasing the property outright, thus limiting the detrimental effects of a total taking on the condemnor’s finances. See, e.g., Dept of Public Works v Superior Court of Merced Cnty, 68 Cal 2d 206, 213 (1968) (“It is sound economy for the state to take the entire parcel to minimize ultimate costs.”); see also Nelson Drainage v Filippis, 174 Mich App 400, 407-08 (1989) (explaining that the cost savings and economic benefits for the condemnor alone do not justify total takings under Michigan’s UCPA). If the condemning agency will pay substantially the same amount in any event for the full extent of damage to the property, it facilitates convenience, efficiency, and legal and title clarity to take possession of the remainder, especially with the owner’s consent.
Lenawee County v Wagley, 301 Mich App 134 (2013), is a helpful example of the remnant theory in practice. In that case, the Michigan Court of Appeals affirmed a jury finding in favor of a property owner that an avigation easement placed on a residential property constituted a total taking. The easement significantly limited use, construction, and growth of vegetation on the property, and it placed the existing residential structure in potential danger. The jury concluded that the easement constituted a total taking even though the existing residential structure remained in place. See also Tamulion v Michigan State Waterways Comm’n, 50 Mich App 60, 63 (1973) (noting, in the context of damages from a taking, that dumping “jagged rocks and boulders on the entire length of a beach” made access to the water impossible and “[t]he utility of the property as a lakeside residence was thereby largely destroyed”). Thus, even if there is some physical remainder or structures existing on the property not taken, the effect of a taking on the property as a whole can be so significant so as to justify compensation and full ownership by the condemnor of the entire parcel.
While it is well established that condemning authorities must pay property owners the full value of their property in the case of a total taking, statutory language that is used to define and regulate the standard for when a condemnor must take ownership of an entire property through a total taking varies by jurisdiction. In Michigan, under the Uniform Condemnation Procedures Act (“UCPA”), condemning authorities must pay for an entire parcel if a partial taking “would destroy the practical value or utility of the remainder . . . .” MCL 213.54(1). If a partial taking is found to meet this standard, the condemning agency “may elect whether to receive title and possession of the remainder of the parcel” in line with remnant theory. Id. The question of whether a taking “destroy[s] the practical value or utility of the remainder” is dependent on the unique facts of the case. Id. The existence of a total taking can be raised directly by the property owner in a condemnation proceeding, and the ultimate decision on whether a total taking has occurred is a question of fact for a jury. Id.; accord M Civ JI 90.18; Wagley, 301 Mich App at 143 ("We specifically reserved for a jury's determination whether the [property owners] suffered a total taking—that is, whether the practical value or utility of the remainder of the parcels was destroyed—is a disputed question of fact.").
The language used in the Michigan UCPA to describe the standard for remnant takings is not the same as in other jurisdictions. A helpful comparison is the federal Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (“Policy Act”). The Policy Act is one of the preeminent pieces of legislation in condemnation law, which has helped set many of the basic standards for condemnation procedures throughout the country. Federal funding for infrastructure projects is tied to the Policy Act’s provisions. See 42 U.S.C. § 4655(a) (conditioning the issuance of federal funds upon whether acquiring entities “will be guided, to the greatest extent practicable under State law, by the land acquisition policies” of the Policy Act). However, federal courts have repeatedly held that the statute does not provide a cause of action or an alternative vehicle of relief for affected property owners. See, e.g., Clear Sky Car Wash LLC v City of Chesapeake, 743 F3d 438, 444 (CA 4, 2014) (“In this case, not only did Congress not speak with a clear voice and unambiguously provide [the property owner] both a private right and remedy, it spoke with a clear voice and unambiguously to the contrary, stating that the policies in § 4651 ‘create no rights or liabilities.’” (quoting 42 U.S.C. § 4602(a)); Osher v City of St Louis, 903 F3d 698, 703 (CA 8, 2018); Ackerley Comm v Henderson, 881 F2d 990, 992-93 (CA 11, 1989); Delancy v City of Austin, 570 F3d 590, 593 (CA 5, 2009).
Despite lacking direct enforceability through a private cause of action, the federal Policy Act is a highly influential law that guides many of the condemnation procedures in the 50 states. A comparison between the federal Policy Act and Michigan’s UCPA is insightful. Michigan’s UCPA states that condemning agencies must pay for and have the election to take ownership of the entire property if the taking “destroys” the “practical value or utility” of the property. MCL 213.54(1). The issue can be raised by a party and is a question of fact for a jury. Id. By comparison, the Policy Act “guide[s]” condemning agencies, “to the greatest extent practicable,” to acquire entire properties if a partial taking leaves the owner with an “uneconomic remnant.” 42 USC § 4651(9). A property is an “uneconomic remnant” when the agency itself determines that the remainder has “little or no value or utility to the owner.” Id.
Therefore, the federal standard incorporates the concept of “uneconomic” use of the property and requires only that the taking leave “little” value or utility. Id. The Michigan standard, by contrast, relies on a flexible concept of “practical” value or use of the property but also requires that the taking “destroy” this value or use. MCL 213.54(1).
Further, the federal standard expressly references the value or use of the property “to the owner,” directing the inquiry into a more individualized use of the property. 42 USC § 4651(9). This concept, relating to the use and utility the owner has actually put to the property, is not expressly stated in the Michigan standard. However, such a concept likely is incorporated in Michigan’s language of “practical” utility, which inherently relates the property’s real world, common, and proven usages, and not tangential, theoretical, or untested uses. MCL 213.54(1); Practical, Black’s Law Dictionary (2025) (“[O]f, relating to, or involving real situations and events rather than ideas, emotions, or idealized situations.”); Practical, Oxford English Dictionary (2025) (“Available or applicable in practice; suitable for a particular purpose; functional; (of an idea, plan, or method) likely to succeed or be effective in real circumstances; feasible.”).
Finally, the federal Policy Act requires the condemning agency to offer to the property owner the acquisition of the entire parcel if an uneconomic remnant is found to exist. 42 USC § 4651(9). The Michigan UCPA, by contrast, requires the agency to pay compensation for the parcel but provides the agency the choice of whether to take ownership of the entire parcel or not. MCL 213.54(1) (“The agency may elect whether to receive title and possession of the remainder of the parcel.”). The language of the UCPA may also permit the condemnor to proceed with a total taking even it is not alleged or sought by the owner, though the legality of such an involuntary approach has not been thoroughly tested in caselaw. Id. (stating that, in the remnant context, the condemning agency “shall” pay just compensation for the full parcel and “may elect” to take title and possession of the remainder); see, e.g., City of Troy v Barnard, 183 Mich App 565, 571 (1990) (rejecting attempt of condemnor to acquire a whole parcel under the statute without the owner’s consent by reasoning that the practical value or utility was not destroyed); Piedmont Triad Reg Wat Auth v Sumner Hills, Inc, 353 NC 343, 346 (2001) (noting that involuntary total takings beyond the immediate needs of a project can raise due process concerns, specifically when the justification is based primarily on the condemnor’s finances (citations removed)).
Beyond the substantive standards of the two laws, the federal Policy Act is far more limited than Michigan’s UCPA due to procedure and the availability of remedies. The federal statute provides no independently enforceable cause of action for property owners. See, e.g., Clear Sky Car Wash LLC, 743 F3d at 444. And in line with this limitation, the condemning agency must determine whether a parcel is an “uneconomic remnant.” 42 USC § 4651(9) (defining “uneconomic remnant” as property that “the head of the Federal agency concerned has determined has little or no value or utility to the owner” (emphasis added)); see also 42 USC § 4651 (stating that agencies must be “to the greatest extent possible, guided” by the uneconomic remnant policy (emphasis added)). Thus, the federal standard places the decision-making process almost entirely in the hands of the condemning agency who is pursuing the taking. Yet governments and utilities often have little interest in paying for an entire parcel when they are pursuing an alleged partial taking. Moreover, condemnors often do not wish to hold property interests beyond what they see as the immediate needs of a project. If the condemning agency decides that a taking does not leave an uneconomic remnant, a finding that is frequently in line with the agency’s own economic and administrative interests, affected property owners are left with little to no recourse under the Policy Act. Such owners can only pursue claims for damages under standard just compensation principles.
By contrast, the Michigan standard provides more access and latitude for property owners to object to the value and taking determinations of condemning agencies and for juries to find that a total taking has occurred, even when initially classified as partial takings by condemning agencies. This is an important feature that ensures protection and support for property owner positions that conflict with condemning agencies. The federal standard would cover cases where a condemning agency itself determines that there is a total taking, which, if the owner agrees, are unlikely to cause a court dispute in the first place. Given the potential that condemning authorities will avoid seeking total takings to limit liability and possession of unwanted property, the difference between the federal and Michigan standards can be dispositive. While the federal Policy Act is a landmark piece of legislation that has had a significant influence around the country, Michigan’s UCPA is overall more accessible and useful for affected property owners.
Other jurisdictions use different standards, often distinct from either the Michigan or federal statutes. For instance, Alabama modeled its standard off of the Model Eminent Domain Code. See Uniform Law Commissioners’ Model Eminent Domain Code, § 208. Under the Alabama statute, the condemning authority is required to offer the purchase of an “uneconomic remnant” from the affected property owner, and the authority may acquire the remnant by condemnation “if the owner consents.” Al Code § 18-1A-27(a). “Uneconomic remnant” is defined under the Alabama statute as “a remainder following a partial taking of property, of such size, shape, or condition as to be of little value or that gives rise to a substantial risk that the condemnor will be required to pay in compensation for the part taken an amount substantially equivalent to the amount that would be required to be paid if it and the remainder were taken as a whole.” Al Code § 18-1A-27(b). Therefore, the statute mandates that condemning agencies offer the purchase of entire parcels in cases of uneconomic remnants, rather than merely providing guidance and leaving the issue to the agency’s determination like the federal Policy Act. The Alabama standard also ties the characteristics and physical nature of the land to the property’s remaining value, and it incorporates financial considerations for the condemnor, thereby permitting a total taking where there is a “substantial risk” that the cost of acquisition will be “substantially equivalent” to the damages paid for a partial taking. The statute includes probability elements to determine the financial consequences of a partial taking, leaving the standard open for application to unique and fact-specific cases.
By comparison, Ohio’s standard requires heads of acquiring agencies to comply with the policies set out in the federal Policy Act, including the acquisition of uneconomic remnants based on the determination of acquiring agencies. ORC § 163.59(K). However, Ohio has a separate provision that requires agencies to acquire entire parcels, subject to waiver by the owner, when a proposed partial taking would affect property with a residential structure and the taking “would remove a garage and sufficient land that a replacement garage could not be lawfully or practically attached.” ORC § 163.05. This unique provision gives tailored relief to residential property owners who as a result of a project would lose garage space, risking significant damage to the property’s current use and eliminating a basic asset of home ownership.
New York and Florida, by contrast, do not have statutes that mandate or set a standard for the acquisition of remnants. These states instead rely on standard processes to determine just compensation and compensate owners for the full extent of damage to their property.
The language of remnant statutes matter, and they can and do vary jurisdiction to jurisdiction. Depending on how the standard is phrased and structured, there can be significant differences as to property owners’ access to relief, the circumstances in which remnant takings are permitted, and the extent of deference and control over the decision-making process given to condemning agencies. It is important to read applicable statutes closely to ensure that owners exercise rights available to them and are not left with remnants of land that lack value or utility and that the owners do not wish to possess.
