An owner must be compensated for all damage the condemnor will have a right to inflict on the property and not just for what the condemnor plans to do with the land acquired. In other words, courts must presume that condemnor will use the rights acquired to their maximum extent. This is called the Fullest Extent Rule. Under this rule, damages in a condemnation proceeding are controlled not by the extent of present use by a condemnor, but by the fullest extent of the right acquired. In Coos Bay Logging Co. v. Barclay, 159 Or. 272, 283, 79 P.2d 672, 676-77 (1938), the Oregon Supreme Court stated the longstanding rule:
The probability that the appropriator will not exercise, or the fact that there is no present intention of exercising, to the full extent the rights acquired should not be considered in reduction of the damages, where there is nothing to prevent a full exercise of such right, since the presumption is that the appropriator will exercise such rights and use and enjoy the property taken to the full extent.
Coos Bay, 159 Or. at 284, 79 P.2d at 677.
The foregoing rule is nearly universal across the nation and can be applied to many different situations. Mostly, it applies to easement takings, but it can apply to other takings too. Many easements use broad language to describe their taking. For example, the easement could be for some underground sewer or other utility but the language of the easement could include the condemnor has the right to repair and maintain the utility. One might believe that a new utility will not need repair or maintenance for years, so it’s no big deal. But under the fullest extent rule it means that the condemnor has the ability to come on the property anytime for maintenance, not just years from now. This means that a property owner cannot build on such an easement because whatever structure was built over the easement could be torn up at any time for maintenance.
Another example is where a condemnor takes land for a new two-lane highway. However, although the present use is only for a two-lane highway, the condemnor took enough land to expand to four lanes. Given this, one court allowed the possible expansion to four lanes to be considered in the damage analysis.
Property owners have been penalized for failing to raise the fullest extent rule. In California, a condemnor acquired an easement to install an aqueduct. Years later, the owner sued to prevent the condemnor from enlarging the aqueduct. The Court ruled against the property owner holding that there was “no limit upon the character of improvement to be constructed” for the condemned easement. Given this, the California Court said that the property owner should have pursued more damages when the easement was taken.
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