Eminent Domain Law: A Historical Overview

Eminent domain, or the government's power to seize private property for public use, has been a feature of US law since the late 18th century. The term, which is derived from the Latin 'eminens dominium', was included in the Fifth Amendment to the US Constitution, which states that private property [must not] be taken for public use, without just compensation. While the federal government has long held the power of eminent domain, it was only in 1897, following the case of Chicago, Burlington & Quincy Railroad Co. v. City of Chicago, that the Takings Clause was applied to individual states.

Eminent domain and the US Constitution

The US Constitution's Fifth Amendment, also known as the "Takings Clause", limits the government's power of eminent domain by expressly requiring "just compensation" to be paid to the property owner. The Fifth Amendment states that "nor shall private property be taken for public use, without just compensation".

The US Constitution's Founding Fathers, many of whom were wealthy landowners, included eminent domain in the US Constitution to ensure that eminent domain would be used responsibly. The Fifth Amendment did not create the national government's right to use the eminent domain power, but it did limit it to public use. Eminent domain, also known as land acquisition, compulsory purchase, resumption, expropriation, or appropriation, is the compulsory acquisition of private property for public use.

The federal government, along with state and local governments, all possess the power of eminent domain. Eminent domain has been used traditionally to facilitate transportation, supply water, construct public buildings, and aid in defence readiness. The US Supreme Court first examined federal eminent domain power in 1876 in Kohl v. United States. This case involved a landowner's challenge to the US government's power to condemn land in Cincinnati, Ohio, for use as a customs house and post office building.

The US Supreme Court has consistently deferred to the right of states to make their own determinations of "public use". In Clark v. Nash (1905), the Supreme Court acknowledged that different parts of the country have unique circumstances and the definition of "public use" thus varied with the facts of the case. It ruled that a farmer could expand his irrigation ditch across another farmer's land (with compensation) because that farmer was entitled to "the flow of the waters of the said Fort Canyon Creek... and the uses of the said waters... [is] a public use".

The exercise of eminent domain is not limited to real property. Governments may also condemn personal property, even intangible property such as contract rights, patents, trade secrets, and copyrights.

The Takings Clause

The interpretation of "public use" in the Takings Clause has evolved over time. In the 1954 Berman v. Parker case, the U.S. Supreme Court upheld the constitutionality of "urban renewal", transforming the words "public use" to mean "public purpose" as defined by a legislature or administrative agency. This decision led to a significant expansion of eminent domain, with governments condemning fine properties for private development under the pretense of removing slums and blight.

The application of the Takings Clause is complex and subject to ongoing legal debate and interpretation by the courts. While it generally requires just compensation for the taking of private property, there are exceptions. For example, the government need not compensate owners when requiring them to take reasonable steps to avoid harming public or private property through pollution or other releases.

Eminent domain and compensation

The concept of eminent domain, also known as land acquisition, compulsory purchase, resumption, expropriation, or compulsory acquisition, has existed long before the founding of the United States. Historically, it was exercised by the ruling class or royalty, known as the sovereign or sovereignty. The term "eminent domain" was derived from the Latin term "Eminenes Dominium", which referred to the government's power to appropriate private property for public use, with or without the owner's consent.

In the United States, the founders included limitations on the use of eminent domain in the Fifth Amendment to the Constitution, also known as the "Takings Clause". This amendment stipulates that private property cannot be taken for public use without just compensation, addressing two main concerns: the government's power to take private property and the requirement to provide fair compensation for the property.

The federal government's power of eminent domain has been utilised in the United States for various purposes, including transportation, water supply, public buildings, and defence readiness. The most common uses of property taken by eminent domain are roads, government buildings, and public utilities. The power of eminent domain has also been delegated to municipalities, government subdivisions, and private persons or corporations authorised to exercise functions of public character.

Eminent domain cases typically involve two phases: the right to take phase and the just compensation or damages phase. The first phase determines whether the taking satisfies the public use/purpose requirement, while the second phase focuses on determining the fair market value of the property and providing just compensation to the former owner.

While eminent domain lawsuits are common, it is challenging to refuse or halt an eminent domain case. Property owners often find themselves with limited options, accepting the offered compensation or pursuing a lawsuit for higher compensation.

Eminent domain in state constitutions

The term "eminent domain" was derived from the Latin term "Eminenes Dominium", which refers to the government's power to appropriate private property for public use. While the concept of eminent domain has existed in some form for centuries, its modern interpretation can be traced back to the 17th century.

In the United States, eminent domain refers to the power of the state or federal government to take private property for public use, with just compensation provided to the original owner. This power can be delegated by the state to municipalities, government subdivisions, or even private entities in certain circumstances. The Fifth Amendment to the U.S. Constitution places restrictions on eminent domain, stating that private property can only be taken for "public use" and that owners must receive "just compensation".

State constitutions also play a crucial role in regulating eminent domain. While Indiana's constitution does not explicitly mention eminent domain, its courts have interpreted the due process guarantee to imply this power. The remaining 49 state constitutions contain explicit eminent domain restrictions, with varying lengths and details, but all requiring that its use be for a public purpose.

The history of eminent domain is filled with examples of its use, from early federal cases involving the construction of public buildings and aqueducts to more recent instances of land acquisition for conservation and border security. The Kelo v. City of New London case in 2005 sparked a wave of state-level reforms, with 31 states passing laws to curb eminent domain abuses in the year following the decision.

Eminent domain and public use

Eminent domain, derived from the Latin term 'Eminenes Dominium', refers to the government's power to seize private property and convert it for public use. The term 'eminent domain' was first used in 1625 in the legal treatise 'De Jure Belli et Pacis' by Dutch jurist Hugo Grotius, who described the power as "the property of subjects [being] under the eminent domain of the state".

The Founding Fathers of the United States recognised the need to give the government the power to control land in the best interests of all citizens. They understood that the government needed to provide property owners with fair compensation when taking their property, and so included eminent domain in the US Constitution. The Fifth Amendment to the US Constitution, also known as the 'Takings Clause', states that "private property [nor] be taken for public use, without just compensation". This clause limits the government's power of eminent domain by expressly requiring "just compensation" to be paid to the property owner.

The US Supreme Court first examined federal eminent domain power in 1876 in Kohl v. United States, which presented a landowner's challenge to the government's power to condemn land in Cincinnati, Ohio, for use as a custom house and post office building. The Supreme Court acknowledged the existence of condemnation authority twenty years later in United States v. Gettysburg Electric Railroad Company, in which the federal government acquired land to preserve the site of the Gettysburg Battlefield in Pennsylvania.

The most common uses of property taken by eminent domain include roads, government buildings, and public utilities. Eminent domain has also been used to establish parks and set aside open spaces for future generations, as well as to protect environmentally sensitive areas. Eminent domain can be delegated by the state to municipalities, government subdivisions, or even private persons or corporations, when they are authorised to exercise functions of public character.

There are two main types of eminent domain: complete taking, where the government takes an entire parcel of land, and partial taking, where the government only takes a portion of a property. There are also permanent and temporary takings, where the property is either never returned to its previous owner or returned after a set period, respectively.

While eminent domain gives the government significant power over private property, it is an essential tool for launching projects that will benefit an entire community. Homeowners and property owners are entitled to just compensation when the government wants to take their land.

Frequently asked questions