Origins of Power

Eminent domain is the inherent power of the 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.  A state’s power of eminent domain is subject to several important constitutional limits such as[i]:

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

The mode and manner of the exercise of the power of eminent domain is exclusively vested in the judgment and discretion of the legislature[iii].  The power of eminent domain is an attribute of sovereignty and inheres in every independent state[iv].  Eminent domain is regarded as an inherent power of both the federal and state governments.  However, the power of eminent domain does not originate in state constitutions.  Instead, it is an inherent power in every sovereign state and the state constitutions merely place certain limits on the exercise of the power of eminent domain[v].

The right is an inherent power of the sovereign and exists in a sovereign state without any specific recognition.  It comes into existence with the establishment of government and continues as long as the government endures.  However, its exercise may be constitutionally limited[vi].  The Fifth Amendment merely prohibits the government from taking property without paying just compensation.  It prevents the legislature from depriving private persons of vested property rights except for a public use and upon payment of just compensation[vii].

It is to be noted that under the power of eminent domain, the sovereign can take or damage private property for a public purpose upon payment of just compensation.  On the other hand, the police power is the power which the state inherently has to restrict the use of property without paying compensation by valid regulations intending to promote public health, safety, morals, and general welfare.

Generally, eminent domain powers can only be exercised by the government or lawfully designated authority.  However, a person having an interest in the property can compel a government to invoke those powers by bringing an action for inverse condemnation.  Inverse condemnation is an action or eminent domain proceeding initiated by a person having an interest in the realty rather than by the government condemnor. Inverse condemnation is available when a private property is taken for public use without formal condemnation proceedings and no intention on the part of the taker to bring an action to acquire the property[viii].

[i] Twp. of W. Orange v. 769 Assocs., 172 N.J. 564 (N.J. 2002).

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

[iii] Utilities, Inc. v. Washington Suburban Sanitary Comm’n, 362 Md. 37 (Md. 2000).

[iv] Georgia v. Chattanooga, 264 U.S. 472 (U.S. 1924).

[v] Gober v. Stubbs, 682 So. 2d 430 (Ala. 1996).

[vi] Deisher v. Kansas DOT, 264 Kan. 762 (Kan. 1998).

[vii] Landgraf v. Usi Film Prods., 511 U.S. 244 (U.S. 1994).

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


Inside Origins of Power