Eminent Domain Isn’t Just a ‘Yellowstone’ Plot Point—It’s a Real-Life Nightmare for Many Americans

In the hit show “Yellowstone,” the newly elected governor recently used eminent domain to begin the process of overturning a conservation easement, which would put the Dutton family at risk of losing their mega Montana ranch.

And while this is all fiction, the threat of eminent domain is a real risk for many Americans.

“Eminent domain is a power vested in federal, state, and local governments, as well as certain utilities, to take private property for public use,” says attorney Eric Teusink, managing partner at Williams Teusink in Decatur, GA. “It is typically used to acquire land for public projects such as highways, government buildings, utilities, or other public infrastructure.”

The Fifth Amendment establishes the power of eminent domain, ensuring that private property is not seized for public use without just compensation.

But the definition of “public use” varies from state to state.

“In New York, the definition of public use has been broadly defined to encompass not only the traditional ideas of public use such as building roads, schools, and infrastructure, but also to alleviate urban blight,” says attorney Jennifer Polovetsky, a partner at Duane Morris LLP. She specializes in eminent domain cases.

This means any areas deemed “blighted”—or dilapidated or deteriorated—can be acquired via eminent domain and redeveloped for a public purpose.

And those who want to prevent their properties from being seized, there is a challenging journey ahead

Fighting back against eminent domain

Back in 2005, a property owner named Susette Kelo, together with other private property owners, sued the city of New London, CT, for an abuse of its eminent domain power because the city government had seized private property for economic redevelopment—i.e., for the alleviation of urban blight.

The plaintiffs in the case, Kelo, argued that economic development did not qualify as a “public use” under the definition provided in the Fifth Amendment.

The case went to the Supreme Court, which sided with the government and upheld the decision that combating urban blight constitutes a valid “public purpose.”

That said, most homeowners aren’t likely to lose their entire property to eminent domain, as public projects typically focus on commercial and industrial areas, according to Polovetsky.

However, “as we saw in Kelo, and in some past cases that I have adjudicated in New York, sometimes a private home is in the way of a project and will in fact be acquired via eminent domain,” Polovetsy notes.

That’s what happened to Mika Race when the Pigeon Forge, TN, investment property she co-owned with her son was taken through eminent domain in June 2024. The property was demolished to make room for a road extension, allegedly while the title was still in her name.

She and the city have yet to reach a financial settlement and are currently in a legal dispute. Race is chronicling the ongoing battle on TikTok, where she has over 57,000 followers.

The origins of eminent domain

Many people wonder how something like this can even be legal.

“It is understandable why many people would question the legality of eminent domain, but this right of the government pre-dates the founding of the United States,” explains Teusink.

It’s derived from English Common Law, which holds that the Crown has the underlying title to all land within its common law dominions.

“Without eminent domain, the government would be unable to create new roads or lay the public utilities which benefit us all,” explains Teusink. “All citizens benefit from eminent domain, but that is of little solace when it is your property the government seeks to take.”

What to do if your home is at risk

If your property is at risk of being taken through eminent domain, it’s crucial to consult with a lawyer right away, as the process can be complicated and difficult to navigate.

To ensure your rights are protected, “it is always advisable for a property owner or business tenant to consult with an eminent domain attorney if they receive an eminent domain notice,” says Polovetsky.

If you do receive a financial offer, don’t take the first one you get—because you can and should negotiate.

Teusink says in his experience, “it is possible to get better compensation than the government initially offers—occasionally, much better.”

And you always have the option to challenge the government’s use of eminent domain to take your property, if you so choose.

However, Polovetsky says that around 99% of challenges in New York are unsuccessful, due to the state’s broad interpretation of eminent domain—so be prepared for a tough fight.