Every person has a right to private property.  The Fifth Amendment of the U.S. Constitution protects persons against abuse of government authority in legal procedure.  However, the federal government and each state government have the inherent power of eminent domain.  The power of eminent domain is the power of government to take private property for public purposes.  The process of government taking private property for public use is called a ‘taking’.

People are protected from illegal interference by government through ‘the takings clause’ in the Fifth Amendment of the U.S. Constitution[i].  An owner of a private property that is taken by the government should be compensated in a just manner according to the fair market value of the property.  However, land can only be taken by the government for a public purpose or use[ii].  The Fifth Amendment’s public use clause is applicable to state governments through the Fourteenth Amendment Clause[iii].  The U.S. constitution helps to maintain a balance between needs of the public and property rights of a person.

A taking of a private property is illegal when it is only for personal gains.  Public use does not have a restricted use.  However, the flexibility of the term public use does not allow the government to stretch the meaning of the term beyond constitutional limits.  The public use must be an accurate reflection at the time of taking and not just hypothetical[iv].  Public use is not limited to possession of or direct enjoyment of a private property by the public[v].  Generally, public use is the appropriation of private property taken by a government under its right of eminent domain in manner advantageous to a general community.  Public use means public advantage and permits takings even when the property is subsequently conveyed to new private owners [vi].

The advantage of the government exercising power of eminent domain need not be for the benefit of a large number of people[vii].  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.  However, incidental public benefits when the main purpose is personal advantage cannot be considered as a constitutionally valid public purpose[viii].  A public use cannot be considered incidental if the public and private uses are inseparable[ix].  When an industry is an eminent part of development of a community and that industry cannot survive without invasion into private property rights, the industry can be considered to be created for public use[x].  This is because eradication of unemployment and economic development are considered as public purposes.

The legislatures decide whether an action is for public advantage[xi].  However, courts are provided the power to determine the constitutionality of a legislative decision.  Courts can exercise judicial review only if the reasoning of the legislative authorities is arbitrary and unreasonable[xii].

The construction and maintenance of a bridge connected to a public highway is for the public good.  Governments can use the power of eminent domain to construct bridges.  The power of eminent domain can be exercised in the case of private toll bridges even after completion of the bridge[xiii].  The power of eminent domain can be exercised in condemnation of public burial grounds and drainages.  Governments can exercise eminent domain for public schools purposes, college buildings, and other areas necessary for educational purposes[xiv].  Private property can be acquired for public purposes such as construction of government buildings and hospitals; military purposes; and to facilitate light, heat and power distribution[xv].  Eminent domain can be exercised for public purposes such as telecommunications and water supply.

Private property can be acquired for airports, railways, public highway, street, or roadways that are for generally the public’s use[xvi].  This includes property acquired for bus stops, parking areas, and bicycle paths.  Land can also be acquired for recreational purposes such as hunting, fishing, parks, playgrounds, forest preserves.  Housing programs, slum clearance programs, and urban development will also form public purposes.  Governments can use the power of eminent domain for city beautification and protection of ancient monuments[xvii].  Land can also be acquired for industrial and irrigational projects, pipelines, gas storage, and mining purposes.

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

[ii] Merrill v. Manchester, 127 N.H. 234 (N.H. 1985).

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

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

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

[vi] County of Essex v. Hindenlang, 35 N.J. Super. 479 (App.Div. 1955).

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

[viii] Tolksdorf v. Griffith, 464 Mich. 1 (Mich. 2001).

[ix] State ex rel. Puget Sound Power & Light Co. v. Superior Court for Snohomish County, 133 Wash. 308 (Wash. 1925).

[x] Goldfield Consol. Milling & Transp. Co. v. Old Sandstrom Annex Gold Mining Co., 38 Nev. 426 (Nev. 1915).

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

[xii] City of Alexandria v. Hoffman Family, LLC, 70 Va. Cir. 22 (Va. Cir. Ct. 2005).

[xiii] Sears v. Tuolumne County, 132 Cal. 167 (Cal. 1901).

[xiv] State ex rel. Benson v. Union Electric Co., 359 Mo. 35 (Mo. 1949).

[xv] Cheyenne v. Edwards, 22 Wyo. 401 (Wyo. 1914).

[xvi] Kansas C., S. J. & C. B. R. Co. v. St. Joseph T. R. Co., 97 Mo. 457 (Mo. 1889).

[xvii] N. Light & Power Co. v. Stacher, 13 Cal. App. 404 (Cal. App. 1910).