Constitutional Requirements


Eminent domain is the right of a government entity to seize private property for the purpose of constructing a public facility.  In other words, it is the inherent power of a state to seize a citizen’s private property or seize a citizen’s rights in property and convert it for public use without the owner’s consent but with due monetary compensation.  However, the eminent domain power is subjected to certain constitutional limits such as:

  • The property acquired must be taken for a “public use;”
  • The state must pay “just compensation” in exchange for the property[i];
  • No person must be deprived of his/her property without due process of law.

The taking clause of the Fifth Amendment to the U.S. constitution will not prohibit the governmental taking of private property.  However, it places a condition on the exercise of that power.  The purpose of the taking clause is to prevent the government from forcing some people alone to bear public burdens which must be borne by the public as a whole[ii].

Similarly, the takings clause expressly requires compensation where government takes private property for public use.  It does not bar government from interfering with property rights but has to provide a just compensation.  However, if a government action is found to be impermissible, then there is no scope of inquiry and no amount of compensation can authorize such an action[iii].

However, the public use requirement is generally viewed as a restriction on the government’s eminent domain power.  The government cannot use that power unless its use is for the benefit of the public.  However, public use is defined as reaching to the full extent of the state’s police power[iv].

In order to bring a claim under the takings clause, a claimant must identify a property interest recognizable under the Fifth Amendment[v].  It is to be noted that the Fifth Amendment forbids the federal government from taking property for public use without just compensation and this limitation is extended to the states through the Fourteenth Amendment[vi].

However, every destruction or injury to property by government action is not considered as a taking in the constitutional sense.  Similarly, diminution of property value alone will not establish a taking[vii].

It is to be noted that the federal constitution and state constitutions provide the same protection regarding takings[viii].  Therefore, the takings clause of the Fifth and Fourteenth Amendments and the takings clause of a state constitution will possess the same meaning and effect.  However, property owners can enjoy broader protection under a state constitution than under the Federal Constitution[ix].

A constitutional provision against taking private property for public use without just compensation is considered to be self executing[x].  If a political subdivision with the power of eminent domain damages property for a public use, the property owner can seek damages in an action for tort, in a statutory action for inverse condemnation, or in a constitutional action for inverse condemnation.  Inverse condemnation is an action or eminent domain proceeding initiated by a person having an interest in realty rather than by the government condemnor[xi].

In addition to the constitutional requirements of public use and just compensation, the due process clause protects a person from the adoption of any form of procedure in eminent domain cases which deprives him/ her of a reasonable opportunity to be heard and to present any objections and claims.

In order to succeed in establishing a constitutional violation of the takings clause, claimants must demonstrate that[xii]:

  • They have a property interest protected by the Fifth Amendment,
  • They were deprived of that interest by the government for public use,
  • They were not afforded just compensation.

[i] Richardson v. City & County of Honolulu, 124 F.3d 1150 (9th Cir. Haw. 1997).

[ii] Wash. Legal Found. v. Legal Found. of Wash., 271 F.3d 835 (9th Cir. Wash. 2001).

[iii] Id.

[iv] Pascoag Reservoir & Dam, LLC v. Rhode Island, 217 F. Supp. 2d 206 (D.R.I. 2002).

[v] Hawkeye Commodity Promotions, Inc. v. Miller, 432 F. Supp. 2d 822 (N.D. Iowa 2006).

[vi] Id.

[vii] Hawkeye Commodity Promotions, Inc. v. Miller, 432 F. Supp. 2d 822 (N.D. Iowa 2006).

[viii] Agins v. Tiburon, 447 U.S. 255 (U.S. 1980).

[ix] State v. Wojtyna, 70 Wn. App. 689 (Wash. Ct. App. 1993).

[x] Chick Springs Water Co. v. State Highway Dep’t, 159 S.C. 481 (S.C. 1931).

[xi] Lone Star Industries, Inc. v. Secretary of Kansas Dep’t of Transp., 234 Kan. 121 (Kan. 1983).

[xii] Ganci v. New York City Transit Auth., 420 F. Supp. 2d 190 (S.D.N.Y. 2005).