Eminent Domain

Eminent domain refers to the government taking private property without the owner's permission for specified, legitimate purposes and just compensation. This entry explores various conceptualizations of eminent domain and its background and then discusses controversies surrounding its key components.

Related concepts to eminent domain exist in other countries with common law systems. In the United Kingdom, New Zealand, and the Republic of Ireland, a similar procedure is called compulsory purchase, and in Australia it is called resumption. In Canada and Louisiana, a concept similar to eminent domain is expropriation.

In the United States, eminent domain receives legal support from the Fifth Amendment to the U.S. Constitution, which reads, in part, “nor shall private property be taken for public use, without just compensation.” Eminent domain is often considered an inherent governmental power, even without legislation saying so. Governments, however, must use due process to appropriate the property, often taking private property through a condemnation proceeding. Government can take property only for public uses, and it must compensate the property owner. The courts usually defer to the legislative branch in deciding what a public use is.

In the United States, it is without controversy that governments possess an inherent power to exercise eminent domain but that due process must be followed beforehand. Experts conceptualize four kinds of property takings: complete, partial, temporary, and easements. A complete taking is a total and permanent taking of property, whereas a partial taking is a permanent taking of a portion of the owner's property, such as land on one edge of the property. A temporary taking means the owner is compensated for temporary loss of the property, but the property eventually returns to the owner. An easement gives another entity access to the property, but the owner can continue to use the property if it does not interfere with the other entity's use. An example of an easement is that a utility company can install power lines over a property; the property owner can continue to use the property under the power lines as long as he or she does not interfere with the utility's service.

Contemporary controversies surrounding eminent domain revolve around what are legitimate public uses and what is fair compensation. The notion of a legitimate public use has changed dramatically over time, from a notion of universal availability, to a definite, direct public benefit, and more recently, to a potential, indirect public benefit. State governments have exercised eminent domain since the nation's founding, but one of the first U.S. Supreme Court cases, Kohl et al. v. United States, 91 U.S. 367, was concerned with what is a legitimate public use. Decided in 1876, the Supreme Court concluded that the federal government could appropriate private property in Cincinnati, Ohio, to develop a building that would house a federal post office, courthouse, pension office, customhouse, and other federal government facilities. In this instance, the Court was concerned with the potential access of all Americans to these public properties.

Eventually, the focus of legitimate public use was less on universal access and more on the interest of the public. It became no longer necessary that everyone have access to the property but rather that everyone would benefit from the property. This change was sometimes characterized as arising from government's police power, that government can legitimately secure the safety, health, and welfare of its citizens by maintaining public order. In Berman v. Parker, 348 U.S. 26, the U.S. Supreme Court considered whether the District of Columbia Redevelopment Land Agency could use its powers of eminent domain to [Page 297]take blighted property in Washington, D.C. The specific area subject to eminent domain proceedings was characterized as one in which “64.3 percent of the dwellings were beyond repair, 18.4 percent needed major repairs, only 17.3 percent were satisfactory,” and the Supreme Court noted that most had outdoor toilets, over 60 percent did not have baths, and over 80 percent did not have laundry facilities or central heating. In ruling that eminent domain proceedings were appropriate, the Supreme Court noted in this 1954 case, “Miserable and disreputable housing conditions may do more than spread disease and crime and immorality. … They may indeed make living an almost insufferable burden.”

...