"Public use" has been interpreted in two ways by courts. One is to require the condemnor to show an actual right for the public to use the "improvement." The other is to require only a showing that the public will benefit in some way. The latter is usually satisfied by nothing more substantial than "it will help grow the economy."

In another life, I was engaged to condemn right-of-way for Shell who was building a carbon dioxide pipeline across New Mexico. New Mexico was a narrow "public use" state so we had to show that Shell was ready and able to ship carbon dioxide for shippers other than itself and Mobil (Mobil had most of the CO2 in SW Colorado; Shell had the oil fields ready for tertiary recovery in W TX and SE NM). That was a problem because Shell had been very clever. They went to the ICC and said that CO2 is a gas and therefore doesn't come under the Interstate Commerce Act. Then they went to FERC and said that CO2 isn't a hydrocarbon and therefore didn't come under their regulatory authority. There was therefore no federal regulatory authority. While NM had amended their condemnation statute to add carbon dioxide pipelines, there was no state regulatory agency with authority either.

The defendant in one case was a big rancher who could afford top legal counsel. They were wise to all this and argued that the lack of regulation meant that Shell's offer to ship was nothing more than a sham. If the defendant prevailed, it would threaten the right to condemn up and down the line and probably end the project.

I had to dig back into the old shipping cases that predated the Interstate Commerce Act. State courts had established common law rights to ship to prevent the railroads from locking out small shippers on their lines. On that basis, I had to argue that a dissatisfied potential shipper could have recourse to state court to enforce a common law right to ship. It worked at the trial level, and the rancher decided not to appeal.