Eminent Domain


Eminent domain is the power possessed by governments to take over the private property of a person without his/her consent.  The government can only acquire private lands if it is reasonably shown that the property is to be used for public purpose only.  Federal, state, and local governments can seize people’s homes under eminent domain laws as long as the property owner is compensated at fair market value.

When a property is acquired by the government, it is called taking.  Pursuant to the Fifth Amendment of the U.S. constitution, government can acquire real and personal belongings of a citizen for public purpose and the person should be provided just compensation[i].  The Fifth Amendment’s public use clause is applicable to state governments through the Fourteenth Amendment Clause[ii].  The taking of property for private purpose will therefore be unconstitutional.

Eminent domain laws are created by the federal and state legislatures[iii].  Courts have the power to judicially review the acquisition of land.  However, if there are no arbitrary and unreasonable decisions, courts cannot interfere in the decisions of the legislature[iv].  Legislatures can also delegate the power of eminent domain to agencies for public purposes.

Property is said to be acquired when government encroaches on the land of a person for public purposes.  When a government denies natural use of a person’s property, this amounts to an informal taking of the property.  However, the taking should be for a public use and the land owner should be paid a just compensation.  Property can be regulated by governments.  But if the regulations imposed are so substantial that the person looses his/her natural rights in the property, it is considered a taking and the government is bound to pay compensation[v].

Eminent domain can only be exercised following the strict rules prescribed in the statutes.  The power should be exercised in a constitutional manner.  The procedure for acquisition of land should be comply with the  rules provided in the statutes by the legislatures[vi].  Statutes conferring and circumscribing the power of eminent domain must be strictly construed.  A condemnor is a party to whom the power of eminent domain is delegated.  A condemnor is given broad discretionary power which can be applied only in good faith according to due process of law[vii].

The term public use cannot be construed in a restricted sense.  However, the flexibility of the term public use does not allow any government to stretch the meaning of the term beyond constitutional limits.  The public use must be accurate at the time of taking and not just hypothetical label[viii].  Public use is not limited to possession of or direct enjoyment of a private property by the public[ix].

The advantage of the government exercising the power of eminent domain need not be for the benefit of a large number of people[x].  The use can be for a community of people or residents of an area alone.  However, the benefit should not be for one person alone.  Legislatures are provided wide discretionary powers to decide whether an action is for public advantage[xi].

Every property that is not restricted by any constitutional rights can be acquired by government[xii].  However, the statutory provision allowing taking of property should not be unconstitutional.  Legislatures can exempt certain properties from acquisition in a reasonable manner[xiii].  A hospital that is mainly working for charitable purposes is exempted from land acquisition.  This is because a property already devoted to a public use cannot be taken for another public use which will totally destroy or materially impair or interfere with the former use[xiv].

Pursuant to 42 USCS § 4601, the federal government can provide facilities for a person who needs help to relocate.  The Model Eminent Domain Code provides that assistance for relocation must be administered uniformly and in a fair and equitable manner to displaced persons.  This law applies to displacements caused by both public and private condemnors.

[i] Dowling v. City of Barberton, 2008 U.S. Dist. LEXIS 73162 (N.D. Ohio Sept. 24, 2008).

[ii] Wood v. Pasco County, 2009 U.S. Dist. LEXIS 62050 (M.D. Fla. July 8, 2009).

[iii] Commonwealth v. King, 252 Ky. 699 (Ky. 1934).

[iv] McCabe Petroleum Corp. v. Easement & Right-Of-Way Across Twp. 12 N., 2004 MT 73 (Mont. 2004).

[v] Mich. S. Cent. Power Agency v. Constellation Energy Commodities Group, Inc., 466 F. Supp. 2d 912 (W.D. Mich. 2006).

[vi] Sanitary & Improvement Dist. No. 1 v. Nebraska Pub. Power Dist., 253 Neb. 917 (Neb. 1998).

[vii] Benton v. Ga. Marble Co., 258 Ga. 58 (Ga. 1988).

[viii] Portland Co. v. City of Portland, 2009 ME 98 (Me. 2009).

[ix] Scudder v. Trenton Delaware Falls Co., 1 N.J. Eq. 694 (Ch. 1832).

[x] Carman v. Hickman County, 185 Ky. 630 (Ky. 1919).

[xi] City of Smithville v. St. Luke’s Northland Hosp. Corp., 972 S.W.2d 416 (Mo. Ct. App. 1998).

[xii] In re Fuchs, 220 Minn. 48 (Minn. 1945).

[xiii] Mt. Vernon-Woodberry Cotton Duck Co. v. Ala. Interstate Power Co., 240 U.S. 30 (U.S. 1916).

[xiv] State ex rel. Maryland Heights Fire Protection Dist. v. Campbell, 736 S.W.2d 383 (Mo. 1987).

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