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Eminent Domain


The power to take private property for public use by a state, municipality, or private person or corporation authorized to exercise functions of public character, following the payment of just compensation to the owner of that property.

Federal, state, and local governments may take private property through their power of eminent domain or may regulate it by exercising their police power. The fifth amendment to the U.S. Constitution requires the government to provide just compensation to the owner of the private property to be taken. A variety of property rights are subject to eminent domain, such as air, water, and land rights. The government takes private property through condemnation proceedings. Throughout these proceedings, the property owner has the right of due process.

Eminent domain is a challenging area for the courts, which have struggled with the question of whether the regulation of property, rather than its acquisition, is a taking requiring just compensation. In addition, private property owners have begun to initiate actions against the government in a kind of proceeding called inverse condemnation.


The concept of eminent domain is not new. It has existed since biblical times, when King Ahab of Samaria offered Naboth compensation for Naboth's vineyard. In 1789, France officially recognized a property owner's right to compensation for taken property, in the French Declaration of the Rights of Man and of the Citizen, which reads, "Property being an inviolable and sacred right no one can be deprived of it, unless the public necessity plainly demands it, and upon condition of a just and previous indemnity."

Shortly after the French declaration, the United States acknowledged eminent domain in the Fifth Amendment to the Constitution, which states, "… nor shall private property be taken for public use, without just compensation."

The Fifth Amendment grants the federal government the right to exercise its power of eminent domain, and the due process clause of the fourteenth amendment makes the federal guarantee of just compensation applicable to the states. State governments derive the power to initiate condemnation proceedings from their state constitutions, except North Carolina, which gains its power through statute. The constitutional and statutory provisions require federal, state, and local governments and subdivisions of government to pay an owner for property taken for public use at the time the property is taken.

The power of eminent domain was created to authorize the government or the condemning authority, called the condemnor, to conduct a compulsory sale of property for the common welfare, such as health or safety. Just compensation is required, in order to ease the financial burden incurred by the property owner for the benefit of the public.

Elements of Eminent Domain

To exercise the power of eminent domain, the government must prove that the four elements set forth in the Fifth Amendment are present: (1) private property (2) must be taken (3) for public use (4) and with just compensation. These elements have been interpreted broadly.

Private Property The first element requires that the property taken be private. Private property includes land as well as fixtures, leases, options, stocks, and other items. The rifle that was used to kill President john f. kennedy was

considered private property in an eminent domain proceeding.

Taking The second element refers to the taking of physical property, or a portion thereof, as well as the taking of property by reducing its value. Property value may be reduced because of noise, accessibility problems, or other agents. Dirt, timber, or rock appropriated from an individual's land for the construction of a highway is taken property for which the owner is entitled to compensation. In general, compensation must be paid when a restriction on the use of property is so extensive that it is tantamount to confiscation of the property.

Some property rights routinely receive constitutional protection, such as water rights. For example, if land is changed from waterfront to inland property by the construction of a highway on the shoreline, the owners of the affected property are to be compensated for their loss of use of the waterfront.

Another property right that is often litigated and routinely protected is the right to the reasonable and ordinary use of the space above privately owned land. Specifically, aircraft flights over private property that significantly interfere with the property owner's use may amount to a taking. The flights will not be deemed a taking unless they are so low and so frequent as to create a direct and immediate interference with the owner's use and enjoyment of the property.

Actions by the government that courts do not consider takings include the publication of plans or the plotting, locating, or laying out of public improvements, including streets, highways, and other public works, even though the publicity generated by such actions might hinder a sale of the land.

The courts have traditionally not recognized the regulation of property by the government as a taking. Regulating property restricts the property owner's use and may infringe on the owner's rights. To implement a regulation, the state exercises its police power and is able to control the use of the property. Although the courts recognized a regulation as a taking in 1922, they have been inconsistent in their later rulings on this issue. In Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S. Ct. 158, 67 L. Ed. 322 (1922), the U.S. Supreme Court ruled that coal mining under an owner's property was not a taking, despite a subsidence, or settling, of the property's surface. In 1987, the Court stated that regulations that are excessive require compensation under the Fifth Amendment (First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 107 S. Ct. 2378, 96 L. Ed. 2d 250 [1987]). More recently, the Court determined that regulations that strip property of value or that do not substantially advance legitimate state interests are takings for which compensation is required (Nollan v. California Coastal Commission, 483 U.S. 825, 107 S. Ct. 3141, 97 L. Ed. 2d 677 [1987]).

In a case examining a moratorium imposed on development in the Lake Tahoe area, the U.S. Supreme Court has decided that a moratorium on development is not necessarily a taking, and that regulatory takings cases must be decided on a case-by-case basis rather than on categorical rules, Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency, 535 U.S. 302, 122 S. Ct. 1465, 152 L. Ed. 2d 517 (U.S., Apr 23, 2002) (NO. 00-1167). In that case, the Tahoe Regional Planning Agency had imposed a moratorium on construction and development that lasted almost three years while the agency devised rules to protect the water quality of Lake Tahoe on the California-Nevada border. Some of the property owners sued, claiming that the moratorium constituted a categorical taking because they were deprived of all economically beneficial use of the property during the period of the moratorium. In a 6–3 decision, the Court held that because the regulation was temporary, it could not constitute a categorical taking.

Public Use The third element, public use, requires that the property taken be used to benefit the public rather than specific individuals. Whether a particular use is considered public is ordinarily a question to be determined by the courts. However, if the legislature has made a declaration about a specific public use, the courts will defer to legislative intent (Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 104 S. Ct. 2321, 81 L. Ed. 2d 186 [1984]). Further, "[t]he legislature may determine what private property is needed for public purpose … but when the taking has been ordered, then the question of compensation is judicial" (Monongahela Navigation Co. v. United States, 148 U.S. 312, 13 S. Ct. 622, 37 L. Ed. 463 [1893]).

To determine whether property has been taken for public use, the courts first determined whether the property was to be used by a broad segment of the general public. The definition of public use was later broadened to include anything that benefited the public, such as trade centers, municipal civic centers, and airport expansions. The U.S. Supreme Court continued to expand the definition of public use to include aesthetic considerations. In Berman v. Parker, 348 U.S. 26, 75 S. Ct. 98, 99 L. Ed. 27 (1954), the Court ruled that slums could be cleared in order to make a city more visually attractive. The Court in Berman stated further that it is within legislative power to determine whether a property can be condemned solely to beautify a community.

State courts have also expanded the definition of public use. The Michigan Supreme Court even allowed property to be condemned for the private use of the General Motors Company, under the theory that the public would benefit from the economic revitalization a new plant would bring to the community (Poletown Neighborhood Council v. City of Detroit, 410 Mich. 616, 304 N. W. 2d 455 [1981]).

Just Compensation The last element set forth in the Fifth Amendment mandates that the amount of compensation awarded when property is seized or damaged through condemnation must be fair to the public as well as to the property owner (Searl v. School District No. 2 of Lake County, 133 U.S. 553, 10 S. Ct. 374, 33 L. Ed. 740 [1890]). Because no precise formula for determining it exists, just compensation is the subject of frequent litigation.

The courts tend to emphasize the rights of the property owner in eminent domain proceedings. The owner usually has not initiated the action but has been brought into the litigation because his or her property is needed for public use. The owner must participate in the proceedings, which can impose an emotional and financial burden.

The measure of damages is often the fair market value of the property that is harmed or taken for public use. The market value is commonly defined as the price that reasonably could have resulted from negotiations between an owner who was willing to sell it and a purchaser who wanted to buy it. The value of real property is assessed based on the uses to which it reasonably can be put. Elements for consideration include the history and general character of the area, the adaptability of the land for future buildings, and the use intended for the property after its taking. Generally, the best use of the land is considered to be its use at the time it was condemned, even though the condemnor might not intend to use the land in the same manner as the owner. Crops, grass, trees, minerals, rental income, and all other items that fairly enter into the question of value are taken into consideration when determining just compensation. The amount of compensation should be measured by the owner's loss rather than by the condemnor's gain, and the owner should be placed in as good a financial position as he or she would have been in had the property not been taken (Monongahela). The compensation should be paid in cash, and the amount is determined as of the date title vests in the condemnor. Interest is paid on the award until the date of payment.

Condemnation Proceedings

Condemnation proceedings vary according to individual state and federal laws. In general, the proceedings should be conducted as quickly as possible. A proceeding does not require court involvement if the condemnor and landowner enter into a contract for the taking of the property for a public use. A seizure pursuant to such a contract is as effective as if it were done through formal condemnation proceedings.

Condemnation usually consists of two phases: proceedings that relate to the right of the condemnor to take the property, and proceedings to set the amount of compensation to be paid for the property taken. The commencement of the proceedings does not curtail ordinary use of the condemned property by the owner as long as the use does not substantially change the condition of the property or its value.

States require special procedures for certain cases, categorized by either the purpose for which the property is sought or the character of the party seeking to take it. For example, a special procedure is required when property is to be taken for a street, highway, park, drain, levee, sewer, canal, or waterway. In a procedure called a quick taking, the condemnor is permitted to take immediate possession and use of the property, and the owner must receive cash compensation in advance of the proceeding.

The owner has the right to due process during condemnation proceedings. He or she must be notified in a timely manner and must be given a reasonable opportunity to be heard on the issues of whether the use for which the property is expropriated is public and whether the compensation is just. Due process considerations mandate that the landowner receive an opportunity to present evidence and to confront or cross-examine witnesses. The owner has an automatic right to appeal.

Due process does not require a jury trial in condemnation proceedings, although various state constitutions and statutes provide for assessment by a jury. Absent contrary state provisions, a court has the discretionary power to grant or refuse a motion for view of the premises by a jury. A condemnation judgment or order must be recorded.

Inverse Condemnation

An increase in environmental problems has resulted in a new type of eminent domain proceeding called inverse condemnation. In this proceeding, the property owner, rather than the condemnor, initiates the action. The owner alleges that the government has acquired an interest in his or her property without giving compensation, such as when the government floods a farmer's field or pollutes a stream crossing private land. An inverse condemnation proceeding is often brought by a property owner when it appears that the taker of the property does not intend to bring eminent domain proceedings.

further readings

Berger, Michael M. 1994. "Recent Takings and Eminent Domain Cases." American Law Institute-American Bar Association C930 (August).

Harris, David. 1995. "The Battle for Black Land: Fighting Eminent Domain." NBA National Bar Association Magazine 9 (March–April).

Kimsey, Paul. 1994. "Eminent Domain." Stetson Law Review 23 (spring).

Kruse, Patrick. 1995. "Constitutional Law–Eminent Domain–Riparian Landowners." University of Detroit Mercy Law Review 72 (spring).

Mancini, Vincent B. 1993. "Land Use Regulatory 'Takings' and the Eminent Domain Code." Pennsylvania Bar Association Quarterly 64 (October).

McCurdy, Claire K., and Nina M. Thompson. 1992. "What Is Eminent Domain and How Do You Do It?" Journal of the Kansas Bar Association 61 (December).

Richardson, Mark A. 1995. "A Symposium on Regulatory Takings." Detroit College of Law Review (spring).

Salley, Sara T. 1988."Eminent Domain: Supreme Court Regulatory Takings Analysis: How Nollan v. California Coastal Commission Fit In?" Oklahoma Law Review 41 (fall).

Searles, Sidney Z. 1995."The Law of Eminent Domain in the U.S.A." American Law Institute-American Bar Association C975 (January).

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Eminent Domain


EMINENT DOMAIN is the inherent right of a sovereign power to take private property for public use without the owner's consent. The Fifth Amendment of the U.S. Constitution implicitly acknowledges this right of the national government by providing that private property shall not "be taken for public use without just compensation." By the U.S. Supreme Court's interpretation of the due process clause of the Fourteenth Amendment in Chicago, Burlington and Quincy Railroad v. Chicago (1897), the same right and limitation has been attributed to state governments.

The right of eminent domain is an ancient one, and the American colonies readily utilized the concept. Numerous early colonial statutes, along with English common law, carried the philosophy of eminent domain over into U.S. jurisprudence. The scope of eminent domain, however, is still unsettled. The historic conceptual debates generally focus upon one of two questions: What amounts to a "taking," in which compensation to the owner is mandated by the Constitution? What amounts to a "public use," in which the sovereign power may exercise its right to eminent domain?

Certain sovereign actions to protect health, morals, safety, or even to "promote the general welfare" are undertaken within the government's inherent police power and, as such, are not considered takings within the eminent domain power. Courts have the task of determining what is a taking as opposed to what is a regulation within the exercise of the police power. During the last two decades of the twentieth century, the U.S. Supreme Court limited the scope of the federal eminent domain power by reinvigorating the takings doctrine. In Pennsylvania Coal Company v. Mahon (1922), Justice Oliver Wendell Holmes established the doctrine of regulatory takings. However, this doctrine was rarely employed successfully during the period between 1950 and 1980 at the Supreme Court. But beginning in the 1980s, the Court began to take a closer look at land use regulations such as environmental controls and zoning restrictions in its effort to provide greater protections to property interests. For example, in Lucas v. South Carolina Coastal Council (1992) the Supreme Court determined that regulations depriving an owner of all economically viable uses of land constituted a taking notwithstanding any public use justification.

A sovereign may not take property except for public use. Until the 1950s, courts held the narrow view that public use meant literally "use by the public": taken property could not be turned over to private owners, even if the public would benefit thereby. The modern, broader view, expressed in Berkman v. Parker (1954), is that public use means "public advantage" or "public purpose" and permits takings even when the property is subsequently conveyed to new private owners.


Coyle, Dennis J. Property Rights and the Constitution: Shaping Society through Land Use Regulation. Albany: State University of New York, 1993.

Fischel, William A. Regulatory Takings: Law, Economics, and Politics. Cambridge, Mass.: Harvard University Press, 1995.

R. BlakeBrown
Eric L.Chase
Harold W.Chase

See alsoConfiscation of Property ; Police Power ; Property .

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eminent domain

eminent domain, the right of a government to force the owner of private property sell it if it is needed for a public use. The right is based on the doctrine that a sovereign state has dominion over all lands and buildings within its borders, which has its origins in the landholding system under feudalism. Eminent domain is implicitly enshrined in the U.S. Constitution, which in the Fifth Amendment requires that private property not be taken for public use without just compensation. The process of acquiring private property by eminent domain is known as condemnation.

Eminent domain traditionally has been used by governments to condemn land for building roads, schools, goverment buildings, and the like. The right of eminent domain may also be assigned to public and private corporations engaged in activities regarded as benefiting the public, such as the development of port facilities, the building of a canal or railroad, or the redevelopment of a blighted area. In 2005 the U.S. Supreme Court, in Kelo v. the City of New London, ruled that the Connecticut city had the right to condemn unblighted private property and transfer it to another private owner for development even if the only public benefit might be increased employment and tax revenues. Public outcry over the decision subsequently led most states to adopt legislation or constitutional amendments that limited, in varying degrees, the ability of state and local governments to use eminent domain to condemn private property for use by a private corporation. At the same time, some government officials and private developers raised concerns over how the laws and amendments would affect their ability to undertake large-scale development projects.

See also public ownership.

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eminent domain

em·i·nent do·main • n. Law the right of a government or its agent to expropriate private property for public use, with payment of compensation.

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"eminent domain." The Oxford Pocket Dictionary of Current English. . 16 Dec. 2017 <>.

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