History Of The Federal Use Of Eminent Domain (2022)

Early Evolution of Eminent Domain Cases

The federal government’s power of eminent domain has long been used in the United States to acquire property for public use. Eminent domain ''appertains to every independent government. It requires no constitutional recognition; it is an attribute of sovereignty.” Boom Co. v. Patterson, 98 U.S. 403, 406 (1879). However, the Fifth Amendment to the U.S. Constitution stipulates: “nor shall private property be taken for public use, without just compensation.” Thus, whenever the United States acquires a property through eminent domain, it has a constitutional responsibility to justly compensate the property owner for the fair market value of the property. See Bauman v. Ross, 167 U.S. 548 (1897); Kirby Forest Industries, Inc. v. United States, 467 U.S. 1, 9-10 (1984).

History Of The Federal Use Of Eminent Domain (1)The U.S. Supreme Court first examined federal eminent domain power in 1876 in Kohl v. United States. This case presented a landowner’s challenge to the power of the United States to condemn land in Cincinnati, Ohio for use as a custom house and post office building. Justice William Strong called the authority of the federal government to appropriate property for public uses “essential to its independent existence and perpetuity.” Kohl v. United States, 91 U.S. 367, 371 (1875).

The Supreme Court again acknowledged the existence of condemnation authority twenty years later in United States v. Gettysburg Electric Railroad Company. Congress wanted to acquire land to preserve the site of the Gettysburg Battlefield in Pennsylvania. The railroad company that owned some of the property in question contested this action. Ultimately, the Court opined that the federal government has the power to condemn property “whenever it is necessary or appropriate to use the land in the execution of any of the powers granted to it by the constitution.” United States v. Gettysburg Electric Ry., 160 U.S. 668, 679 (1896).

Condemnation: From Transportation to Parks

Eminent domain has been utilized traditionally to facilitate transportation, supply water, construct public buildings, and aid in defense readiness. Early federal cases condemned property for construction of public buildings (e.g., Kohl v. United States) and aqueducts to provide cities with drinking water (e.g., United States v. Great Falls Manufacturing Company, 112 U.S. 645 (1884), supplying water to Washington, D.C.), for maintenance of navigable waters (e.g., United States v. Chandler-Dunbar Co., 229 U.S. 53 (1913), acquiring land north of St. Mary’s Falls canal in Michigan), and for the production of war materials (e.g. Sharp v. United States, 191 U.S. 341 (1903)). The Land Acquisition Section and its earlier iterations represented the United States in these cases, thereby playing a central role in early United States infrastructure projects.

History Of The Federal Use Of Eminent Domain (2)Condemnation cases like that against the Gettysburg Railroad Company exemplify another use for eminent domain: establishing parks and setting aside open space for future generations, preserving places of historic interest and remarkable natural beauty, and protecting environmentally sensitive areas. Some of the earliest federal government acquisitions for parkland were made at the end of the nineteenth century and remain among the most beloved and well-used of American parks. In Washington, D.C., Congress authorized the creation of a park along Rock Creek in 1890 for the enjoyment of the capitol city’s residents and visitors. The Department of Justice became involved when a number of landowners from whom property was to be acquired disputed the constitutionality of the condemnation. In Shoemaker v. United States, 147 U.S. 282 (1893), the Supreme Court affirmed the actions of Congress.

Today, Rock Creek National Park, over a century old and more than twice the size of New York City’s Central Park, remains a unique wilderness in the midst of an urban environment. This is merely one small example of the many federal parks, preserves, historic sites, and monuments to which the work of the Land Acquisition Section has contributed.

Land Acquisition in the Twentieth Century and Beyond

The work of federal eminent domain attorneys correlates with the major events and undertakings of the United States throughout the twentieth century. The needs of a growing population for more and updated modes of transportation triggered many additional acquisitions in the early decades of the century, for constructing railroads or maintaining navigable waters. Albert Hanson Lumber Company v. United States, 261 U.S. 581 (1923), for instance, allowed the United States to take and improve a canal in Louisiana.

History Of The Federal Use Of Eminent Domain (3)

The 1930s brought a flurry of land acquisition cases in support of New Deal policies that aimed to resettle impoverished farmers, build large-scale irrigation projects, and establish new national parks. Condemnation was used to acquire lands for the Shenandoah, Mammoth Cave, and Great Smoky Mountains National Parks. See Morton Butler Timber Co. v. United States, 91 F.2d 884 (6th Cir. 1937)). Thousands of smaller land and natural resources projects were undertaken by Congress and facilitated by the Division’s land acquisition lawyers during the New Deal era. For example, condemnation in United States v. Eighty Acres of Land in Williamson County, 26 F. Supp. 315 (E.D. Ill. 1939), acquired forestland around a stream in Illinois to prevent erosion and silting, while Barnidge v. United States, 101 F.2d 295 (8th Cir. 1939), allowed property acquisition for and designation of a historic site in St. Louis associated with the Louisiana Purchase and the Oregon Trail.

During World War II, the Assistant Attorney General called the Lands Division “the biggest real estate office of any time or any place.” It oversaw the acquisition of more than 20 million acres of land. Property was transformed into airports and naval stations (e.g., Cameron Development Company v. United States 145 F.2d 209 (5th Cir. 1944)), war materials manufacturing and storage (e.g., General Motors Corporation v. United States, 140 F.2d 873 (7th Cir. 1944)), proving grounds, and a number of other national defense installations.

Land Acquisition Section attorneys aided in the establishment of Big Cypress National Preserve in Florida and the enlargement of the Redwood National Forest in California in the 1970s and 1980s. They facilitated infrastructure projects including new federal courthouses throughout the United States and the Washington, D.C. subway system, as well as the expansion of facilities including NASA’s Cape Canaveral launch facility (e.g., Gwathmey v. United States, 215 F.2d 148 (5th Cir. 1954)).

History Of The Federal Use Of Eminent Domain (4)

The numbers of land acquisition cases active today on behalf of the federal government are below the World War II volume, but the projects undertaken remain integral to national interests. In the past decade, Section attorneys have been actively involved in conservation work, assisting in the expansion of Everglades National Park in Florida (e.g., U.S. v. 480.00 Acres of Land, 557 F.3d 1297 (11th Cir. 2009)) and the creation of Valles Caldera National Preserve in New Mexico. In the aftermath of the September 11, 2001 terrorist attacks, Land Acquisition Section attorneys secured space in New York for federal agencies whose offices were lost with the World Trade Towers. Today, Section projects include acquiring land along hundreds of miles of the United States-Mexico border to stem illegal drug trafficking and smuggling, allow for better inspection and customs facilities, and forestall terrorists.

Properties acquired over the hundred years since the creation of the Environment and Natural Resources Section are found all across the United States and touch the daily lives of Americans by housing government services, facilitating transportation infrastructure and national defense and national security installations, and providing recreational opportunities and environmental management areas.

For information on the history of the Land Acquisition Section, see the History of the Section. To learn more about the range of projects undertaken by the Land Acquisition Section, click here to view the interactive map titled Where Our Cases Have Taken Us. And for moreon the procedural aspects of eminent domain, seethe Anatomy of a Condemnation Case.

FAQs

What is the meaning of power of eminent domain? ›

Eminent domain refers to the power of the government to take private property and convert it into public use. The Fifth Amendment provides that the government may only exercise this power if they provide just compensation to the property owners.

What is example of power of eminent domain? ›

Eminent domain refers to the power of the government to take private land for public use under certain circumstances. For example, the government may sometimes take someone's house to make room for a new highway or a bridge.

What are two examples of the need for eminent domain? ›

For example, eminent domain has been used to acquire land for building a shopping center, housing development, stadium, or arena. A person must receive a fair price for their property when the government uses eminent domain. This fair price is described in the Fifth Amendment as 'just compensation.

What are the three requirements for eminent domain? ›

The eminent domain power allows the government to take private property for the benefit of the public after paying just compensation.
...
They are:
  • Acquisition is of private property;
  • Property must be acquired;
  • Acquisition must be for public use; and.
  • Just compensation must be awarded.

Why is eminent domain important? ›

Eminent domain has been utilized traditionally to facilitate transportation, supply water, construct public buildings, and aid in defense readiness. Early federal cases condemned property for construction of public buildings (e.g., Kohl v.

What's another word for eminent domain? ›

In this page you can discover 8 synonyms, antonyms, idiomatic expressions, and related words for eminent domain, like: right of angary, lawful authority, divine-right, angary, legal authority, legitimacy, right of eminent domain and rightful authority.

Why was eminent domain created? ›

The government wanted the land in order to open up both a post office building and a custom house. The U.S. Supreme Court ruled in favor of the government and states that the power of eminent domain was necessary in order for the government to be independent and to exist with perpetuity.

How does eminent domain affect people? ›

When the government uses eminent domain to acquire a home or business, they actually destroy value. It reallocates property from a higher-value use to a lower-value use, as exemplified by the unwillingness of the government to pay the price required to obtain the property voluntarily.

Has anyone won an eminent domain case? ›

PennEast Pipeline Co.

In this case, the U.S. Supreme Court affirmed the right of a pipeline company to use eminent domain powers granted it under the Natural Gas Act to seize state-owned lands for private development.

How do I beat eminent domain? ›

If you're dead set against selling your property to the government, you have the right to fight eminent domain in court. However, the only way to pull off this feat is to prove the government does not plan to use your land for justified public use — an unlikely outcome.

Can eminent domain be challenged? ›

Contesting The Condemning Agency's Acquisition Of The Property. Provided there has been no withdrawal of the amount deposited, anyone with an interest in the property can challenge in court the agency's right to acquire or condemn the property.

Who can exercise the power of eminent domain? ›

“Eminent Domain” – also called “condemnation” – is the power of local, state or federal government agencies to take private property for “public use” so long as the government pays “just compensation.” The government can exercise its power of eminent domain even if the owner does not wish to sell his or her property.

Do all states have eminent domain? ›

As government entities, both the state of California and the local government of San Diego and other municipalities hold eminent domain powers.

Can the government take your property without compensation? ›

"The state, under the police power, cannot in any manner actually take and appropriate property for public use without compensation, for such action is repugnant to the constitutional guaranty that where private property is appropriated for public use, the owner shall receive reasonable compensation.

What two conditions must be met for the government to exercise eminent domain? ›

There are two ways or two conditions for condemning authority to acquire property, one to just compensation, the other, the public use and necessity, just compensation will not stop taking.

What is the difference between police power and eminent domain? ›

Whereas eminent domain involves the taking of property for public use, the police power involves regulating the use of property to prevent harm to the public interest.

What's the opposite of eminent domain? ›

Eminent domain is initiated by the government. By contrast, inverse condemnation is initiated by the property owner when the government exacts a taking without following the eminent domain procedures. These are often land-use disputes in which a property owner challenges development restrictions.

Is expropriation eminent domain? ›

Eminent domain is the legal power granted to the State to take private property to advance the public interest, and expropriation is a legal procedure by which government implements eminent domain.

What does eminent domain mean in Latin? ›

Translation of the Latin term dominium ēminēns “supreme ownership”.

When was eminent domain added to the Constitution? ›

It requires no constitutional recognition; it is an attribute of sovereignty.” 598 In the early years of the nation the federal power of eminent domain lay dormant as to property outside the District of Columbia, 599 and it was not until 1876 that its existence was recognized by the Supreme Court.

How many people are affected by eminent domain? ›

Some 3 to 4 million Americans, most of them ethnic minorities, have been forcibly displaced from their homes as a result of urban renewal takings since World War II. The fact is that eminent‐​domain abuse is a crucial constitutional rights issue.

Does Congress have the power of eminent domain? ›

Although the power of eminent domain is not one of the enumerated powers listed in Article I of the Constitution, most modern scholars assume that its use is authorized by the Necessary and Proper Clause, which gives Congress the authority to enact laws that are “necessary and proper” for “carrying into execution” the ...

What is the power of eminent domain in the Philippines? ›

Power of Eminent Domain. —The President shall determine when it is necessary or advantageous to exercise the power of eminent domain in behalf of the National Government, and direct the Solicitor General, whenever he deems the action advisable, to institute expropriation proceedings in the proper court.

What's another word for eminent domain? ›

In this page you can discover 8 synonyms, antonyms, idiomatic expressions, and related words for eminent domain, like: right of angary, lawful authority, divine-right, angary, legal authority, legitimacy, right of eminent domain and rightful authority.

Why is eminent domain important? ›

Eminent domain has been utilized traditionally to facilitate transportation, supply water, construct public buildings, and aid in defense readiness. Early federal cases condemned property for construction of public buildings (e.g., Kohl v.

What is the difference between police power and eminent domain? ›

Whereas eminent domain involves the taking of property for public use, the police power involves regulating the use of property to prevent harm to the public interest.

Is eminent domain still legal? ›

The power of eminent domain is a legal right of the government. As long as the government is acquiring the property for public use and has fairly compensated you, there is unfortunately not much you can do once your property has been identified as a government need.

What is eminent domain what are its limitations? ›

Section 9, Article III of the 1987 Constitution (which reads "No private property shall be taken for public use without just compensation.") provides two essential limitations to the power of eminent domain, namely, that (1) the purpose of taking must be for public use and (2) just compensation must be given to the ...

Who can exercise the power of eminent domain? ›

“Eminent Domain” – also called “condemnation” – is the power of local, state or federal government agencies to take private property for “public use” so long as the government pays “just compensation.” The government can exercise its power of eminent domain even if the owner does not wish to sell his or her property.

What's the opposite of eminent domain? ›

Eminent domain is initiated by the government. By contrast, inverse condemnation is initiated by the property owner when the government exacts a taking without following the eminent domain procedures. These are often land-use disputes in which a property owner challenges development restrictions.

Is expropriation eminent domain? ›

Eminent domain is the legal power granted to the State to take private property to advance the public interest, and expropriation is a legal procedure by which government implements eminent domain.

What does eminent domain mean in Latin? ›

Translation of the Latin term dominium ēminēns “supreme ownership”.

How does eminent domain affect people? ›

When the government uses eminent domain to acquire a home or business, they actually destroy value. It reallocates property from a higher-value use to a lower-value use, as exemplified by the unwillingness of the government to pay the price required to obtain the property voluntarily.

Why was eminent domain created? ›

The government wanted the land in order to open up both a post office building and a custom house. The U.S. Supreme Court ruled in favor of the government and states that the power of eminent domain was necessary in order for the government to be independent and to exist with perpetuity.

Has anyone won an eminent domain case? ›

PennEast Pipeline Co.

In this case, the U.S. Supreme Court affirmed the right of a pipeline company to use eminent domain powers granted it under the Natural Gas Act to seize state-owned lands for private development.

What are the 3 inherent powers of the state? ›

An inherent power is a power given to a state or organized political body that is not expressly written in a formal political document. States have three inherent powers: the power of taxation, police power, and the power of eminent domain.

What are the 3 state powers? ›

Under his model, the political authority of the state is divided into legislative, executive and judicial powers. He asserted that, to most effectively promote liberty, these three powers must be separate and acting independently.

What is the most important inherent power of the state? ›

TAXATION has been defined as the power of the sovereign to impose burdens or charges upon persons, property or property rights for the use and support of the government to be able to discharge its functions. It is one of the inherent powers of the state.

Early Evolution of Eminent Domain CasesThe federal government’s power of eminent domain has long been used in the United States to acquire property for public use. Eminent domain ''appertains to every independent government. It requires no constitutional recognition; it is an attribute of sovereignt...

The federal government’s power of eminent domain has long been used in the United States to acquire property for public use.. However, the Fifth Amendment to the U.S. Constitution stipulates: “nor shall private property be taken for public use, without just compensation.” Thus, whenever the United States acquires a property through eminent domain, it has a constitutional responsibility to justly compensate the property owner for the fair market value of the property.. This case presented a landowner’s challenge to the power of the United States to condemn land in Cincinnati, Ohio for use as a custom house and post office building.. Ultimately, the Court opined that the federal government has the power to condemn property “whenever it is necessary or appropriate to use the land in the execution of any of the powers granted to it by the constitution.” United States v. Gettysburg Electric Ry ., 160 U.S. 668, 679 (1896).. Early federal cases condemned property for construction of public buildings (e.g., Kohl v. United States ) and aqueducts to provide cities with drinking water (e.g., United States v. Great Falls Manufacturing Company , 112 U.S. 645 (1884), supplying water to Washington, D.C.), for maintenance of navigable waters (e.g., United States v. Chandler-Dunbar Co ., 229 U.S. 53 (1913), acquiring land north of St. Mary’s Falls canal in Michigan), and for the production of war materials (e.g. Sharp v. United States , 191 U.S. 341 (1903)).. The Land Acquisition Section and its earlier iterations represented the United States in these cases, thereby playing a central role in early United States infrastructure projects.. Albert Hanson Lumber Company v. United States , 261 U.S. 581 (1923), for instance, allowed the United States to take and improve a canal in Louisiana.. They facilitated infrastructure projects including new federal courthouses throughout the United States and the Washington, D.C. subway system, as well as the expansion of facilities including NASA’s Cape Canaveral launch facility (e.g., Gwathmey v. United States , 215 F.2d 148 (5th Cir.. The numbers of land acquisition cases active today on behalf of the federal government are below the World War II volume, but the projects undertaken remain integral to national interests.. Properties acquired over the hundred years since the creation of the Environment and Natural Resources Section are found all across the United States and touch the daily lives of Americans by housing government services, facilitating transportation infrastructure and national defense and national security installations, and providing recreational opportunities and environmental management areas.

Eminent Domain is the power of the government to take private property for public use. Learn more about the history of Eminent Domain and how it's used.

The taking of property is known in some states as an acquisition, while eminent domain is frequently called condemnation.. The first requires that the taking must be for a public use.. While the federal constitution only applies to the “taking of property”, many state constitutions expanded owner rights by requiring the payment of just compensation for “damage” to property, as well.. Local governments decided to use their power of eminent domain to acquire all of the independently owned parcels of land and then transfer them to a developer who would redevelop the slum area and eliminate the blight.. Since the ultimate ownership of the parcels was for a private use (the developer) and not a public use, the takings were challenged because they did not meet the “public use” requirement of the Constitution.. It was satisfied that a public purpose would meet the Constitutional requirement of “public use”.. Land outside of that physical boundary is not needed for the public use of the road, and public use does not allow a condemning authority to take that extra land.. Not every such project, though, receives eminent domain power.. Up to this point we have been discussing situations where the condemning authority is affirmatively exercising its power of eminent domain.. In cases where the condemning authority initiates (declares) the taking, the first phase involves determining whether the condemning authority’s project satisfies the public use/purpose requirement.. Declared taking cases represent nearly the entire universe of eminent domain cases.. Since the public use for most declared takings (roads, public buildings, etc.). That is what the second (just compensation) phase of an eminent domain case is all about.. To encourage readers with potential cases to understand their cases better, we will talk about your case with you, and even analyze it, at no charge.

These Supreme Court cases helped define eminent domain (also known as the takings clause) in the Fifth Amendment of the U.S. Constitution.

Enumerated in the Fifth Amendment of the U.S. Constitution, it gives states and the federal government the right to seize property for public use in exchange for just compensation (based on fair market value for a piece of land).. The concept of eminent domain is connected to the functionality of the government, because the government needs to acquire property for infrastructure and services like public schools, public utilities, parks, and transit operations.. “If the right of eminent domain exists in the federal government, it is a right which may be exercised within the states, so far as is necessary to the enjoyment of the powers conferred upon it by the Constitution.” In United States v. Gettysburg Electric Railroad Company (1896), Congress used eminent domain to condemn the Gettysburg Battlefield in Pennsylvania.. In a 7-1 decision delivered by Justice Harlan, the court ruled that the state could take land under eminent domain if the original owners were awarded just compensation.. “Once the question of the public purpose has been decided, the amount and character of land to be taken for the project and the need for a particular tract to complete the integrated plan rests in the discretion of the legislative branch.” Penn Central Transportation v. New York City (1978) asked the court to decide whether a Landmark Preservation Law, which restricted Penn Station from building a 50-story building above it, was constitutional.. Hawaii Housing Authority v. Midkiff (1984) asked the court to determine whether the state of Hawaii could enact a law that would use eminent domain to take lands from lessors (property owners) and redistribute them to lessees (property renters).. In Kelo v. City of New London (2005), the plaintiff, Kelo, sued the city of New London, Connecticut for seizing her property under eminent domain and transferring it to New London Development Corporation.. Kelo alleged that the seizure of her property was a violation of the “public use” element of the Fifth Amendment takings clause because the land would be used for economic development, which is not solely public.

A detailed look at how federal, state, and local governments can use the law of eminent domain to seize private property that is deemed to be necessary for the public good.

Property owners are rarely successful in stopping governments from taking their property under eminent domain.. Eminent domain has a lengthy history in the U.S. as a means of allowing the government to claim private property for public use.. In terms of how the eminent domain process works, it begins with the government identifying private property which may be necessary to seize.. State governments can also use eminent domain to seize private property for public use.. The Fifth Amendment to the Constitution states that “nor shall private property be taken for public use, without just compensation .” Just compensation means that a property cannot be seized unless the party whose property is taken (i.e. the individual or entity that holds property rights) is given full and adequate compensation for it in return.. If a property owner contests the grounds for the seizure, the government must be able to prove that the proposed use is public, that the public interest requires it and the property is necessary for that purpose.. Tribal governments also hold the power of eminent domain to seize private property.. The appraisal process is important for determining that a property owner is provided with just compensation following an eminent domain seizure.. When seeking an independent appraisal as a property owner, it's important to choose an an appraiser that specializes in eminent domain versus general appraisals.. Eminent domain is the government's right to seize private property for public use.. The Fifth Amendment to the Constitution specifies that eminent domain can only be carried out if property owners are provided with fair and just compensation to make up for the property they're losing.. Eminent domain is a right that can be exercised by the federal government, as well as state and tribal governments.

Eminent domain is the power the U.S. government, states, and municipalities to take private property for public use, after paying just compensation.

It may not seem fair to the owners of the property, and eminent domain cases, especially when the owner feels they are not justly compensated, are fairly common.. Eminent domain is the right of governments like the United States to usurp private property for public use, following fair compensation.. The legal debate surrounding unfair invoking of eminent domain, such as when property owners are not fairly compensated, is called inverse condemnation.. Private property is taken through condemnation proceedings, in which owners can challenge the legality of the seizure and settle the matter of fair market value used for compensation.. It may include airspace, water, dirt, timber, and rock appropriated from private land for the construction of roads.. Complete taking, also known as total taking, is when the entire piece of land is seized.. A common example is when a construction project requires easement of the property.. Depending on which type of taking you are facing, the government will calculate the value of the property and offer you what they consider just compensation, which is the fair market value of your property.. Just compensation is dependent on a few factors including the value of any land improvements, any residue damage to the property due to the seizure, and something called benefits.. Private property owners have sued the government in proceedings called inverse condemnation, in which the government or private business has taken or damaged property but failed to pay compensation.. Unfortunately, there is not much you can do to protect your property from eminent domain.. It may seem unfair, but property owners do not have many options to protect their property from seizure by the government.

Free Online Library: Rethinking the federal eminent domain power. (Introduction through II. The History of Federal Takings E. The 1860s, p. 1738-1785) by "Yale Law Journal"; Eminent domain (Law) Analysis Laws, regulations and rules Political aspects Federal jurisdiction Implied powers (Constitutional law) Property rights Right of property Supreme court justices Political activity

These powers must either be implicit in the grant of. some other power, or (and this will turn out to be much the same thing). encompassed by the sweeping Clause empowering Congress to "make all. Laws which shall be necessary and proper for carrying into Execution the. foregoing Powers, and all other Powers vested by this Constitution in. the Government of the United States or in any Department or Officer. thereof.". (28). The same could be said for many other federal powers, such as the. power to create a corporation, the power to imprison people for. violating the law, or the power to force states into court against their. will.. Perhaps Hamilton meant that the power to regulate the press, or. the power to authorize general immunity from state trespass law, was a. great power, like the power to raise armies or lay taxes.. (81). C. Eminent Domain as a Great Power. To understand the complexity of the federal eminent domain power. will require us to look at history, especially the seventy-five years in. which Congress was widely thought to lack a general power of eminent. domain.. It noted that the Constitution--in the District Clause--did. grant the federal government "the national and municipal powers of. government, of every description," but that this Clause and that of. the "temporary territorial governments" were "the only. cases, within the United States, in which all the powers of government. are united in a single government.". (259) And there was confusion about the power to take:. Senator Johnson argued that even without the Fifth Amendment, the. eminent domain power was "an incident of sovereignty," and. that the power had been exercised before, referring to the Lime Point. taking, (260) though another senator correctly pointed out that those. "proceedings were in a State court under a State law."

Eminent Domain Defined and Explained with Examples. Eminent Domain: the power of the government to take private property for public use, by compensating the owner.

The Fifth Amendment to the U.S. Constitution forbids the taking of private property for public use without “just compensation.” The authority of Federal, state, and local governments to take private property for public use, providing just compensation to the owner, is called “eminent domain.” Real estate, or land, is not the only property subject to eminent domain law, but water and air rights as well.. Early European nobility commonly took what land they wanted, until 1789, when France publicly recognized the rights of property owners to be compensated for such property seizures.. To further the effectiveness of the eminent domain power, the Supreme Court decided, in the 2005 case of Kelo v. City of New London , that the transferring of land from one private owner to another private owner for the purpose of economic development is a permissible definition of “public use.”. While it is usually clear that the use of eminent domain to build roads, improve utilities, and revitalize cities, many property owners fear they will not be compensated fully for the seizure of their land.. When appropriating property through eminent domain, the government must pay the owner “fair market value” for the property.. Competent real estate appraisers experienced in eminent domain valuation are often hired by the parties’ eminent domain attorneys.. Property owners often have questions about eminent domain compensation in cases where only part of a property is seized, as well as whether payment is made for improvements to, or businesses on, the property or businesses, as well as who is entitled to eminent domain compensation in cases where the property has a tenant.. The law entitles property owners to compensation for improvements made to the property in addition to its land value.. In most states, property owners are not entitled to compensation for business losses as a result of the property being seized in eminent domain actions.. In many eminent domain cases, only a portion of the property is taken, such as the strip of land needed to widen a street.. In the event a property seized under eminent domain is rented or leased, it may be required that both the property owner and the tenant be compensated.. In some eminent domain cases, such a tenant may be entitled to receive a significant portion of eminent domain compensation made for the property.

The 5th Amendment's Eminent Domain Clause says that the government cannot take away anyone's private property for public use without giving them just compensation in return.

The 5th Amendment's Eminent Domain Clause says that. the government cannot take away anyone's private property for public use. without giving them just compensation in return.. This Magna Carta Article states that the government has the power of eminent domain ,. but it does not say that the government has to compensate the owner of. any property it takes.. In order to preserve property rights, but still allow the government. to take property at times if it was appropriate, James Madison proposed. the Eminent Domain amendment to the Constitution on June 8, 1789, along with a list of about twenty other amendments to the Constitution.. Normally, if a government decides to take a property. through use of Eminent Domain , the major decision is. how much is to be paid to the owner, but sometimes owners will challenge. the right of the government to take their property by claiming that the. use intended by the government is not a public use.. So, for example, if a government waterway project caused. someone's land to flood, the government would not be violating the Eminent Domain Clause and would not have to compensate the owner of the flooded land because the improved waterway provides a public benefit.. When private property is taken through use of Eminent Domain ,. the government is normally required to pay the fair market value of the. property to its owner.. Modern courts have interpreted the Eminent Domain Clause not only to apply to the physical taking of property, but also to the. reduction in value of someone's property due to government activities or. regulations.. For example, if a public airport lowers the property value. of lands next to it because of loud noise, the property owners should. be compensated for their properties' lost value.

This presentation looks at the historical government power of eminent domain; that is, the right of the sovereign to condemn private property for public use. We look at the constitutional background of this power and its constitutional limitations. We also look at the cases in which eminent domain can be used for quasi-public uses, as in the Kelo v. New London case, wherein a Connecticut city condemned private property for the building of a private factory.

United States Supreme. Court Justice William Strong even wrote that the federal government’s authority. to appropriate public use is “essential to its independent existence and. perpetuity.”. For example, something as essential as the interstate highway system almost. certainly could not have been completed were it not for the government’s power. to appropriate lands necessary to complete highway sections.. While recognizing the historical power. of eminent domain as being legitimate and within the province of the United. States government, the Fifth Amendment to the United States Constitution places. certain limitations on it.. A taking under. the power of eminent domain is only valid and constitutional if the taking is. for a “public use.”. 3.If there is a legitimate taking for. public use, the provision requires that the government provide “just. compensation” to the owner in exchange for the taking.. Moreover, when exercising its power of. eminent domain to forcibly take property against the will of the owner, a. government must:. The first issue is what constitutes a. “taking.” Clearly, government condemnation of a piece of property (which means. appropriating it for government use and forcing the owner completely off the. property) constitutes a taking.. To be considered a taking, a government. regulation must deprive its owner of “all economically beneficial use” of the. property.. If a taking does occur, some states. require the government to provide the property owner a condemnation notice. prior to initiating the eminent domain proceeding.. In other states, the. government must file a lawsuit to commence a taking process and provide notice. to the property owner that the government seeks to acquire his land.. In one of the first. eminent domain cases before the Supreme Court of the United States, the Court. held that the federal government could seize private property to build a post. office on the seized land.. The Court held that the city’s act of. acquiring the property through eminent domain for “economic development” was,. in fact, a legitimate public use.. Note, however, that. cities like New London are not necessarily bound by this federal definition. because cities are functions of state governments and states, as sovereigns in. their own rights, also possess the power of eminent domain.. Federal and state governments have passed. legislation to assist property owners affected by eminent domain actions.. Eminent. domain actions can generate a great deal of controversy as seizure of private. property seems to go against the American ideas of homeownership and private. property.. Thus, while the Constitution of the United States recognizes this. necessary power of government, it also establishes safeguards to protect. citizens from unjust takings and to assure that property owners are justly. compensated for any losses to their property.

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