Public Use Doctrine

Public Use Doctrine The public use doctrine suggests that there may be a limitation on the purposes for which the government can exercise the power of eminent domain. The Fifth Amendment to the Constitution reads, “nor shall private property be taken for public use without just compensation.” Most state constitutions contain similar language.

In one form, as seen in some early state court decisions, and still in the interpretation of several state constitutions, the public use doctrine means that eminent domain may be used only when the public will make physical use of the land. However, modern Supreme Court decisions make it clear that under the Fifth Amendment, property may be taken if such action will aid government to attain some appropriate governmental objective. Thus, the phrase “public use” does not impose any special limitations on eminent domain. This view was established in Berman v. Parker (1954) and reinforced by Hawaii Housing Authority v. Midkiff (1984). State courts are free to interpret their state taking clauses more restrictively, and, as suggested, several do so. Most states, however, interpret their own taking clauses much as the Supreme Court interprets the public use language of the Fifth Amendment.

William B. Stoebuck