Delaware Easement and Eminent Domain Laws (2026)

In Delaware, a prescriptive easement takes 20 years of open, notorious, exclusive and adverse use proved by clear and convincing evidence, a standard the Court of Chancery set out in Dewey Beach Lions Club v. Longanecker (2006); Title 10 of the Delaware Code sets a matching 20-year limit on claims to land (10 Del. C. 7901, 7902). On eminent domain, 29 Del. C. 9501A says public use does not include taking land to raise tax base, employment or economic health through private owners or economic development, and when condemned land will be used, owned, occupied or developed by a private party, the condemnor must prove public use by clear and convincing evidence. Qualifying DelDOT transportation acquisitions and qualifying DNREC, tax-ditch and tax-lagoon natural-resource acquisitions are exempt from section 9501A (29 Del. C. 9501B, 9501C).

Delaware's highway chapters contain no private-road procedure for landlocked owners, so access disputes turn on the easement by necessity the courts recognize. This page covers private easements first and condemnation second; for other states, see our guide to easement laws by state.

Information last verified on 2026-10-19. This article has not been reviewed by a licensed lawyer.

Jurisdiction scope: This article covers Delaware law on private easements (Delaware court decisions, 10 Del. C. 7901 and 7902, 6 Del. C. 2714, 25 Del. C. 153 and 7 Del. C. chapter 69) and on condemnation of private property (Del. Const. art. I, sec. 8; 10 Del. C. chapter 61; 29 Del. C. chapters 93 and 95; parts of Titles 17 and 26). It does not cover adverse possession of title (see Delaware squatters' rights and adverse possession), homeowner association covenants, zoning or regulatory takings, federal condemnation, or county and municipal ordinances.

How Long Does a Prescriptive Easement Take in Delaware?

Twenty years. The elements come from Court of Chancery decisions. In Dewey Beach Lions Club, Inc. v. Longanecker, 905 A.2d 128 (Del. Ch. 2006), the court wrote:

"Prescriptive easements are generally disfavored in Delaware. Therefore, a claimant seeking to establish a prescriptive easement must prove by clear and convincing evidence that 'she, or a person in privity with her, used the disputed property: (i) openly, (ii) notoriously (iii) exclusively and (iv) adversely to the rights of others for an uninterrupted period of twenty (20) years.'"

The same opinion adds that the use "must be so open, visible, and apparent that it gives the owner of the servient tenement knowledge and full opportunity to assert his or her rights." The phrase "a person in privity with her" means a claimant may count use by a predecessor in privity toward the 20 years.

Dewey Beach also held that the adversity prong "includes a duty to prove by clear and convincing evidence that the use was not permissive," and that "neighborly or friendly use of land, whether a roadway, open land, or otherwise, does not establish an adverse use." In a March 6, 2026 final report in Murray v. Preradovic, C.A. No. 2023-0601-LM, a Magistrate in Chancery restated the same four elements and said that all of them must be proved by clear and convincing evidence.

The 20-year period lines up with Title 10's limits on real actions. Under 10 Del. C. 7901, no person may make an entry into land "but within 20 years next after the person's right or title to the same first descended or accrued," and 10 Del. C. 7902 bars any "prescription, or claim, to, or in, any lands" except on "an actual seisin" of the claimant or a predecessor "within 20 years next before such writ, or action."

Adverse possession of the land itself, which transfers title rather than a right of use, also runs on a 20-year period under 10 Del. C. 7901; our page on Delaware squatters' rights and adverse possession covers it.

How to Stop a Prescriptive Easement in Delaware

Title 10's limitations chapter (10 Del. C. 7901 to 7903) contains no procedure for blocking prescription by posting a sign or recording a notice. The protection in Delaware comes from the elements themselves. Because the claimant must prove by clear and convincing evidence that the use was not permissive, and because neighborly or friendly use does not establish an adverse use (Dewey Beach Lions Club), use with the owner's permission does not meet the adversity element.

For public roads, 17 Del. C. 509 provides that "[t]he usage by the public for 20 years or more of any road shall not cause the road to become a common highway or public road unless the same has been maintained at the public charge for 20 years or more." That section addresses public highways; it does not decide a private neighbor's prescriptive claim.

Scope of a Prescriptive Easement

A prescriptive easement is limited to the kind of use that created it. In Biggs v. Wolfe, 178 A.2d 482 (Del. Ch. 1962), the Court of Chancery observed that "it has been quite uniformly held that where the attempted use is not reasonably related to the user under which the right was acquired such attempted enlargement of use will not be permitted."

Landlocked Property and Easements by Necessity in Delaware

Delaware's highway chapters (Title 17, chapters 5, 9 and 13) contain no procedure for a landlocked owner to petition for a private road across a neighbor's land. A landlocked owner's route is the common-law easement by necessity. A 2026 Magistrate in Chancery report in Murray v. Preradovic summarized the doctrine this way:

"An easement by necessity is an easement created by the presumption that where a landowner subdivides his property to create a landlocked parcel, without creating some access to that parcel, the landowner is presumed to have intended an easement to provide access across the non-landlocked (servient) parcel to the landlocked (dominant) parcel."

The controlling rule comes from the Delaware Supreme Court. In Pencader Associates, Inc. v. Glasgow Trust, 446 A.2d 1097 (Del. 1982), it held that the burden "rests on the party seeking to establish it," that "[t]he proof must be sufficient to show an absolute necessity," and that "[c]onvenience will not suffice." The necessity "is determined as of the time the parcels were originally separated even though application for establishment of the easement is made by subsequent owners of the landlocked parcel." The Murray report adds that "the scope of an easement of necessity would normally be that required to provide reasonable access to the benefitted parcel."

Express Easements, Recording and Conservation Easements

An easement granted on purpose is normally created in a written instrument. Delaware's statute of frauds, 6 Del. C. 2714(a), bars an action on "any contract or sale of lands, tenements, or hereditaments, or any interest in or concerning them" unless "the contract is reduced to writing, or some memorandum, or notes thereof, are signed by the party to be charged therewith." Recording protects priority: under 25 Del. C. 153, "a deed concerning lands or tenements shall have priority from the time that it is recorded in the proper office without respect to the time that it was signed, sealed and delivered." Our guide to Delaware property records explains how to find recorded deeds and easements.

Conservation easements have their own chapter. Under 7 Del. C. 6902, a conservation easement "may be created, conveyed, recorded, assigned, released, modified, terminated or otherwise altered or affected in the same manner as other easements," and, subject to a court's power "to modify or terminate a conservation easement in accordance with the principles of law and equity" (7 Del. C. 6903(b)), it "is unlimited in duration unless the instrument creating it otherwise provides" (6902(c)).

How an Easement Ends in Delaware

The conservation easement statute treats release, modification and termination as things done "in the same manner as other easements" (7 Del. C. 6902(a)). When an easement is released by deed, 25 Del. C. 153 gives a deed concerning land priority from the time it is recorded; our Delaware quitclaim deed guide covers recording requirements. Delaware courts have stated several other ways an easement ends. The Superior Court has said that "[e]xtinguishment by release requires an express writing," and it called extinguishment of an appurtenant easement by merger, when the owner of the benefited land acquires the burdened land, "the general rule" (Guy v. State, 438 A.2d 1250 (Del. Super. 1981)). For an easement by necessity, the Delaware Supreme Court has held that the right "exists so long as the necessity from which it arose exists"; "[w]hen the necessity ceases, the easement ceases," as when the two parcels are rejoined under common ownership or a way is dedicated giving direct access to public roads; and such an easement "cannot be terminated by mere non-use" (Pencader Associates, 1982). The same decision adds that a way of necessity "can be extinguished by other equitable defenses": abandonment, which "will be found where there is manifested a clear intent, expressed or through acts of relinquishment, to abandon," adverse possession by the owner of the burdened land, and estoppel.

One statute runs the other way for public rights-of-way. Under 17 Del. C. 533 (84 Del. Laws c. 305), land encumbered by a permanent right-of-way easement "may be deemed to be owned in fee simple, by the Department, in the name of the State, when such land has been abandoned by the grantor(s) of such permanent easements, or by the grantor's successors in interest, provided that the following conditions are satisfied"; the section then lists those conditions. It applies only to the Delaware Department of Transportation (DelDOT).

Eminent Domain in Delaware

Delaware's takings clause is in article I, section 8 of the state constitution: "nor shall any person's property be taken or applied to public use without the consent of the person's representatives, and without compensation being made." For the federal rules and a comparison of every state, see our guide to eminent domain laws by state.

Chapter 61 of Title 10 "shall govern the procedure for all condemnations of real and personal property within this State under the power of eminent domain exercised by any authority whatsoever, governmental or otherwise," and "the Superior Court shall have exclusive jurisdiction of all condemnation proceedings" (10 Del. C. 6101, 6102).

Can Delaware Take Property for Private Development or a Pipeline?

Not for economic development. In Kelo v. City of New London, 545 U.S. 469 (2005), the U.S. Supreme Court held that takings under a city's economic development plan satisfied the Fifth Amendment's public use requirement, while emphasizing that "nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power." Delaware added such restrictions in 2009, when Senate Bill 7 (77 Del. Laws c. 12, approved April 9, 2009) created 29 Del. C. 9501A, 9501B and 9501C and the public-use hearing in 10 Del. C. 6105(e). A 2005 act (75 Del. Laws c. 216, approved July 21, 2005) had already required the advance public-use announcement now in 29 Del. C. 9505(15). Section 9501A provides:

"Public use does not include the generation of public revenues, increase in tax base, tax revenues, employment or economic health, through private land owners or economic development."

The statute then provides that public use "shall only mean":

1. "The possession, occupation, or utilization of land by the general public or by public agencies";
2. "The use of land for the creation or functioning of public utilities, electric cooperatives, or common carriers"; or
3. Where the taking both (a) removes a "blighted area" or "slum area" as defined in 31 Del. C. 4501, removes "a structure that is beyond repair or unfit for human habitation or use," or acquires abandoned real property, and (b) "eliminates a direct threat to public health and safety caused by or related to the real property in its current condition."

Private-party projects carry a higher burden. "Whenever real property is condemned and will be used, including owned, occupied or developed by a private party, the State or agency thereof or a political subdivision must establish by clear and convincing evidence that the use of eminent domain complies with the definition of 'public use'" (29 Del. C. 9501A(d)). When that subsection applies, 10 Del. C. 6105(e) requires the Superior Court to schedule a hearing for the agency to meet that burden.

The DelDOT exception. Under 29 Del. C. 9501B, section 9501A "shall not apply" to DelDOT acquisitions for any transportation facility, project or program "if the primary purpose of each parcel being required is to maintain or improve the State's transportation network, as sworn to by the Secretary of the Department or the Secretary's authorized designee."

The natural-resources exception. Under 29 Del. C. 9501C, section 9501A also does not apply to acquisitions by the Department of Natural Resources and Environmental Control (DNREC), any tax ditch and any tax lagoon "for any acquisition authorized in Title 7, if the primary purpose of such acquisition is to maintain, protect or improve the State's natural resources, as sworn to by the Secretary of the Department or the Secretary's authorized designee."

Utilities and pipelines. Under 9501A, the use of land for the creation or functioning of public utilities, electric cooperatives or common carriers counts as a public use. Whether a particular company may condemn depends on the statute that grants it the power. Under 26 Del. C. 901(b), telegraph, telephone and electric-line corporations that cannot agree with an owner may condemn, under Chapter 61, easements and "burdens imposed upon landowners abutting upon any highways" for the lines that section lets them run across waters and along highways. Another example: under 26 Del. C. 908, a public utility may acquire a utility easement across property previously owned by a railroad company under Chapter 61 "whenever all the following conditions are met," including that the utility and the owner cannot agree on terms, that the property is not owned by the State, and that the utility acts in accordance with Chapter 95 of Title 29.

Public notice in advance. Under 29 Del. C. 9505(15), an agency's condemnation must be for a recognized public use announced "at least 6 months in advance of the institution of condemnation proceedings" in a certified planning document, at a public hearing held specifically to address the acquisition, or in a published report of the agency. That paragraph "shall not apply to the obtaining of right-of-ways or easements by an agency for public utilities, such as sewer, water, or electric." Under 29 Del. C. 9501A(e), no written notice or correspondence telling an owner that the property "is subject to eminent domain" may be sent without the condemnor "first notifying the property owner in writing of the public use" as defined in 9501A(c) and as required by 9505(15).

Neighborhood pathways. Under 17 Del. C. 137(a)(4), DelDOT "is not authorized to exercise its eminent domain power to acquire land for such pathway," meaning a pathway through dedicated open space in a recorded residential subdivision, "unless a majority of the residents of the recorded residential subdivision vote to approve within 90 days of notice of its intent to exercise its eminent domain power."

What the Agency Must Do Before Condemning

Chapter 95 of Title 29 sets acquisition policies for agencies. Under 29 Del. C. 9505:

• Real property "shall be appraised before the initiation of negotiations," and the owner or a designated representative must be given an opportunity to accompany the appraiser during an inspection.
• The agency must give the owner a copy of its approved appraisal before negotiations begin, and the amount offered may in no event "be less than the approved appraisal of the fair market value of real property."
• The owner must receive "a written statement of, and summary of the basis for, the amount established as just compensation" (9505(3)).
• No "coercive action" may be taken to compel an agreement on price, and the deposit of funds in court may not be deferred for that purpose (9505(7)).
• If taking only part of a property would leave the owner with an uneconomic remnant, the agency "shall offer to acquire that uneconomic remnant" (9505(9)).
• For a highway project, DelDOT may skip the appraisal when the valuation is uncomplicated and the market value is estimated at $50,000 or less, but whenever the estimated market value is over $10,000 the owner "must be given the option of having an appraisal prepared" (9505(14)).
• "No owner shall be required to surrender possession of real property before the agreed purchase price is paid or deposited with the court," in an amount not less than the approved appraisal or the condemnation award.
• "To the greatest extent practicable," no lawful occupant should have to move from a dwelling, business or farm operation "without at least 90 days' written notice."

How Condemnation Works in Delaware: Procedure and Deadlines

Answer within 20 days or lose objections. An owner served personally must answer within 20 days after service (Superior Court Civil Rule 12(a), which governs condemnation cases under 10 Del. C. 6103 except where Chapter 61 provides otherwise). For defendants served by publication, the notice "shall also state that any defendant shall serve and file, in accordance with the rules of court, an answer within 20 days after the date of the first publication of the notice, in default of which no objection or defense to the taking of the property will be heard" (10 Del. C. 6106(c)). Under 10 Del. C. 6107, "all objections and defenses not so presented shall be deemed waived," after which the case proceeds to the trial of just compensation.

Quick-take possession. At any time after filing, a condemnor that files a notice of intention to take possession and deposits in court "the sum of money estimated by plaintiff to be just compensation" may take possession "upon entry of an appropriate order by the Court, which order may be made ex parte and without notice." Title vests in the condemnor "on the date of payment of the final award" (10 Del. C. 6110).

In cases brought by a public agency, Superior Court Civil Rule 71.1 provides for an order of possession on 10 days' written notice to the owner, supported by an affidavit of necessity, unless the owner shows good cause by affidavits, depositions or a verified answer; the court may still enter an order ex parte "upon proper cause being shown by the public agency." The rule provides that "the burden shall be upon the property owner to overcome the presumption of regularity and the prima facie case of necessity for a public use presented by the institution of such proceeding"; where 29 Del. C. 9501A(d) applies, the statute instead requires the condemnor to prove public use by clear and convincing evidence.

Withdrawing the deposit. On application, the court may pay out the deposit, and the payment "shall not jeopardize any party's right to prove just compensation in a greater or less amount"; if the final award is less than what the owner received, the court enters judgment against the owner for the overpayment (10 Del. C. 6110(b)).

Commissioners set compensation. The court gives the parties a list of 11 proposed commissioners; after 8 names are struck, the remaining 3 serve. The court confirms their award "unless the commissioners have been guilty of misconduct" or "have made an improper award," and a motion to set aside an erroneous award must be "filed and served within 5 days of the award" (10 Del. C. 6108).

Review in the Supreme Court within 1 month. Every condemnation case carries a right of review in the Delaware Supreme Court "as in the manner provided for review of any other final civil judgment of the Superior Court," and the review must be instituted within 1 month from the entry of the Superior Court's final award after confirmation (10 Del. C. 6112).

Dismissal. A condemnor may dismiss as to a property without a court order if no compensation hearing has begun and it has not taken title, a lesser interest or possession (10 Del. C. 6109(a)); an agency that abandons a proceeding must pay the owner such sum as will, in the court's opinion, reimburse reasonable attorney, appraisal and engineering fees actually incurred because of the proceeding (29 Del. C. 9503). Before compensation is determined and paid, the court may, after motion and hearing, dismiss the action as to a party, but it may not dismiss as to any part of the property the condemnor has taken possession of or title to; instead it "shall award just compensation for the possession, title or lesser interest so taken" (10 Del. C. 6109).

Just Compensation, Fees and Relocation in Delaware

How compensation is measured. When only part of a property is taken, the Delaware Supreme Court applies the "before and after" rule: the owner receives "the difference in market value of the property as a whole, before and unaffected by the taking, and the market value of the remaining property after and as affected by the taking" (Acierno v. State, 643 A.2d 1328 (Del. 1994)). Special benefits to the remaining land may be set off, but "[g]eneral benefits ... may not be set off" (same). Loss of a business is generally not compensable as a separate element of damages, though "the existence of a going business on the land may be considered as indicative of the highest economic use to which the land may be put" (State ex rel. Secretary of Dept. of Highways & Transp. v. Davis Concrete of Delaware, Inc., 355 A.2d 883 (Del. 1976)). By statute, value changes caused by the project are disregarded, and "[w]here appropriate," the compensation for the land taken and for damages to the remaining land "shall be separately stated" (29 Del. C. 9505(3)).

Closing costs. The agency reimburses, "to the extent the agency deems fair and reasonable," recording fees, transfer taxes and similar conveyance expenses, penalty costs for prepaying a preexisting recorded mortgage, and the prorated share of real property taxes for the period after title vests or possession is taken (29 Del. C. 9502).

Interest and payment. "Interest shall accrue on the award from the date of taking possession or from the date of the award, whichever first occurs" (10 Del. C. 6113). If no review is taken, the condemnor may pay or tender the award within 2 months after the entry of the confirmed award (6113).

Attorney and expert fees after trial. The starting rule in 10 Del. C. 6111 is that "fees of counsel or of experts retained by any party may not be taxed as costs under any circumstances," except as the section provides. At any time before the day before the compensation trial begins, the condemnor must serve an offer to allow judgment. Then:

"If the award of just compensation, exclusive of interest, is closer to the highest valuation evidence provided at trial on the defendant's behalf than the plaintiff's offer made under paragraph (1) of this section, the defendant may apply for an order for the plaintiff to pay the defendant's reasonable litigation expenses, including reasonable attorney, appraisal, engineering or other expert witness fees actually incurred because of the compensation trial, by serving on the plaintiff and filing with the prothonotary a verified application therefor"

That application is due within 15 days after the court's final confirmation of the condemnation award (10 Del. C. 6111(2)). An offer not accepted before the commissioners are sworn "shall be deemed withdrawn" (6111(1)).

"In no event shall the amount of the expenses awarded pursuant to this paragraph exceed the amount awarded as just compensation." The court "may reduce the amount to be awarded pursuant to this paragraph, or deny such award," to the extent the owner "engaged in conduct which unduly and unreasonably protracted the final resolution of the action," the condemnor's position "was substantially justified," or "special circumstances make an award of expenses unjust."

The rule also runs the other way. If the award, exclusive of interest, is lower than the condemnor's offer, the condemnor may apply within the same 15 days for its reasonable litigation expenses incurred after the offer, "excluding attorney fees but including reasonable appraisal, engineering or other expert witness fees," and those expenses "may be deducted from the award of just compensation" unless paid within 30 days of the court's final order (10 Del. C. 6111(3)). The test compares the award with two numbers, the owner's highest valuation evidence at trial and the condemnor's pretrial offer, rather than with a fixed percentage, and the 15-day application window is short.

Fees when a condemnation fails. Under 29 Del. C. 9503, when an agency's condemnation ends in a final judgment that the property cannot be acquired by condemnation, or the proceeding is abandoned, the owner "shall be paid such sum as will, in the opinion of the court, reimburse such owner for reasonable attorney, appraisal and engineering fees, actually incurred because of the condemnation proceedings."

Inverse condemnation. When an owner sues because the owner's property was used in a program or project and the court awards compensation, or the Department of Justice settles, the owner is reimbursed "for reasonable costs, disbursements and expenses, including reasonable attorney, appraisal and engineering fees, actually incurred because of such proceedings" (29 Del. C. 9504). An agency "shall not intentionally make it necessary for an owner to institute legal proceedings to prove the fact of the taking of the owner's real property" (9505(8)).

Relocation payments. Chapter 93 of Title 29 provides relocation assistance. A displaced person may receive actual reasonable moving expenses, actual direct losses of tangible personal property from moving or discontinuing a business or farm operation (capped at what relocating the property would have cost) and reasonable expenses in searching for a replacement business or farm; reestablishment expenses for a farm, nonprofit organization or small business are capped at $10,000, though state agency payments may exceed that, and "total payments under this paragraph shall not exceed $22,500" (29 Del. C. 9302(a)). A displaced business or farm may instead elect a fixed payment of "not less than $1,000 nor more than $20,000" (9302(c)). A displacing agency must make "an additional payment, not in excess of $22,500, to any displaced person who is displaced from a dwelling actually owned and occupied by such displaced person for not less than 180 days prior to the initiation of negotiations" (29 Del. C. 9303). That payment goes only to an owner who buys and occupies a decent, safe and sanitary replacement dwelling within 1 year, a period the agency may extend for good cause (9303(b)). Tenants and certain other occupants may receive replacement-housing payments "not to exceed $5,250" under 29 Del. C. 9304. These payments are "in addition to the just compensation established in such proceedings, but only to the extent they are not otherwise included in the condemnation award" (29 Del. C. 9314). Projects using federal funds are also subject to the federal Uniform Relocation Act; under 42 U.S.C. 4655(a), a state agency receiving federal financial assistance must give assurances that it will be guided, "to the greatest extent practicable under State law," by the federal land acquisition policies.

Repurchase of DelDOT surplus land. When DelDOT no longer needs property for transportation, 17 Del. C. 137(b)(2) requires it to notify in writing the owner from whom it was acquired, "if the property had been acquired within the immediately preceding 5 years." A prior owner who elects to buy "shall execute and return the purchase agreement to the Department within 30 days of such notice." The prior owner's offer comes after any right of a tenant under a revenue-producing lease in force for at least 5 years (137(b)(1)); the sale price "shall not be less than the approved appraised value"; "[f]ailure of the prior owner to respond to the notice within 30 days shall constitute a waiver"; and if the prior owner has died, DelDOT may proceed to the sale provisions of 137(b)(3).

Delaware Easement and Eminent Domain Rules at a Glance

Related Delaware Property Guides

• Easement laws by state
• Eminent domain laws by state
• Delaware squatters' rights and adverse possession
• Delaware property records: how to find out who owns a property
• Delaware quitclaim deed requirements and recording

This article is general legal information about Delaware easement and eminent domain law, not legal advice. Statutes and court decisions change, and how they apply depends on the facts. For a specific situation, contact a lawyer licensed in Delaware.

Last updated: 2026-10-19.

Frequently Asked Questions

How long does it take to get a prescriptive easement in Delaware?

Twenty years. The Court of Chancery requires open, notorious, exclusive and adverse use for an uninterrupted period of 20 years, proved by clear and convincing evidence, and it treats prescriptive easements as generally disfavored (Dewey Beach Lions Club v. Longanecker, 2006).

What if my land is landlocked in Delaware?

Delaware relies on the common-law easement by necessity. It arises when a landowner divides property and leaves a parcel without access. The Delaware Supreme Court requires the person claiming it to show absolute necessity as of the time the parcels were originally separated, and convenience will not suffice (Pencader Associates v. Glasgow Trust, Del. 1982). A 2026 Magistrate in Chancery report adds that its scope is normally what is required for reasonable access (Murray v. Preradovic).

Does neighborly use of a driveway create a prescriptive easement in Delaware?

The Court of Chancery has stated that neighborly or friendly use of land, whether a roadway, open land or otherwise, does not establish an adverse use, and that the claimant must prove by clear and convincing evidence that the use was not permissive (Dewey Beach Lions Club v. Longanecker, 2006).

Can Delaware take my property for a private developer?

29 Del. C. 9501A says public use does not include increasing tax base, tax revenues, employment or economic health through private land owners or economic development. A taking where the land will be used, owned, occupied or developed by a private party must be justified by clear and convincing evidence that it fits the statute's definition of public use, which includes blight and abandoned-property removal that eliminates a direct threat to public health and safety. Qualifying DelDOT transportation acquisitions (9501B) and qualifying DNREC, tax-ditch and tax-lagoon natural-resource acquisitions (9501C) are exempt from section 9501A.

Can a utility or pipeline company use eminent domain in Delaware?

29 Del. C. 9501A counts the use of land for the creation or functioning of public utilities, electric cooperatives or common carriers as a public use. Whether a particular company holds the power to condemn depends on its own statutory authority. For example, 26 Del. C. 901(b) lets telegraph, telephone and electric-line corporations condemn easements for their lines across waters and along highways when they cannot agree with the owner, and 26 Del. C. 908 lets a public utility condemn a utility easement across former railroad property only when all of that section's conditions are met.

How long do I have to answer a condemnation case in Delaware?

An owner served personally must answer within 20 days after service (Superior Court Civil Rule 12(a), applied by 10 Del. C. 6103). For a defendant served by publication, the notice must state that the defendant has 20 days after the date of first publication to serve and file an answer, failing which no objection or defense to the taking will be heard (10 Del. C. 6106(c)). Objections and defenses not presented in the answer are waived (6107).

Does Delaware pay attorney fees in eminent domain cases?

Fees are generally not taxed as costs, but 10 Del. C. 6111 lets an owner apply, within 15 days after the court's final confirmation of the award, for reasonable attorney, appraisal and expert fees when the award is closer to the owner's highest valuation evidence at trial than to the condemnor's pretrial offer, capped at the amount of the award; the court may reduce or deny that award. If the award is lower than the condemnor's offer, the condemnor may recover its post-offer expert, appraisal and engineering fees (not attorney fees) from the owner, deducted from the award unless paid. 29 Del. C. 9503 also reimburses fees when an agency's condemnation fails or is abandoned, and 9504 does so when an owner wins or settles an inverse condemnation case.

Who decides just compensation in a Delaware condemnation case?

Three commissioners, the names left after 8 are struck from a court list of 11 (10 Del. C. 6108). The Superior Court confirms their award unless they were guilty of misconduct or made an improper award, and a party's motion to set aside an award must be filed and served within 5 days of it.