Eminent Domain Process, Powers and History, Part 1

Eminent-Domain_houseWhen I think about eminent domain, the haunting image of a large hand sweeping down from the sky and scooping up my house comes to mind.  Resonating inside my head are cases such as Kelo vs. the City of New London, Goldstein et al. v. N.Y.  State Urban Development Corporation; my Fifth Amendment rights, ‘land grab’, and even the poignant face of Big Brother looming from giant telescreens in Michael Radford’s 1984 film adaptation of George Orwell’s Nineteen-Eighty-four.

Despite eminent domain’s negative connotations, laws and statutes exist to protect property owners like us if we choose to assert them.  Over the next several articles, we’ll discuss the power of eminent domain and its history; discuss the eminent domain process and dissect the property owner’s rights in the condemnation process.

To fully understand eminent domain and its powers, we should first look at the definition of eminent domain and understand the power of eminent domain.  One definition is the power of the sovereign to take property for “public use” without the owner’s consent. (Julius Sackmna, et al., Nichols on Eminent Domain § 1.11 (3d ed. 2005).  Our definition of eminent domain is simply the legal process that has been established to allow governments to gain ownership of private property.  Although just compensation is an essential element of the valid exercise of eminent domain power, it is not an essential element of the meaning of eminent domain.

Contrary to public opinion, eminent domain powers did not come from the federal and state constitutions but rather rests in the sovereign state.  This principle that the power of eminent domain is an attribute of sovereignty has developed from two schools of thought:  (1) Natural law theory, and; (2) the concept of sovereignty.  Most states have adopted the latter.  For example, Illinois case law states that “the right of eminent domain is an essential attribute of sovereignty, inherent in every independent government, and to be exercised in the discretion of the sovereign power, to promote the general welfare of the people” (Penn Mut. Life Ins. Co. v Heiss, 141 Ill. 35, 31, N.E. 138 (1892).  Missouri case law supports this claim, “The right of eminent domain is inherent in every government.  In this state it is not conferred, but is limited by the constitution. (Kansas City v. Marsh oil Co., 140 Mo. 458, 41 S.W. 943 (1897).

The federal and state constitutions merely limit the power of eminent domain.  Part of these limitations is the payment of just compensation for the appropriated property.  The fifth amendment of the US Constitution states “[N]or shall private property be taken for a public use, without just compensation”.  The Wisconsin Constitution article I § 13 states “The property of no person shall be taken for public use without just compensation therefore”.

Although the government is required to pay you just compensation for your property, determining this amount is often a source of dispute because it involves a wide range of issues which the government may neglect to consider, such as the highest and best use for a property or damages to a remainder parcel.  Frequently, a property owner will only receive just compensation by allowing condemnation to occur.  We’ll investigate this process in more detail in a future article.

While exploring the history of eminent domain, we found that the power to take private property for public use has been exercised since the days of the Romans (See 1 Sackman, supra, § 1.12)   Although not so called, the power of eminent domain, along with the requirement of just compensation, was well established in England by the time of the American Revolution.  When the American colonies became a sovereign state “[t]hey retained for the purposes of government all the powers of the British Parliament…” (Munn v. Illinois, 94  U.S. 113 (1876).

The manifestation of eminent domain power limited by just compensation was enshrined in the U.S. Constitution in 1789.  While the states were fee to appropriate property using their own court systems, the power of the federal government to use its own courts to take property located in the states was not recognized until 1875 (Kohl v. United States, 91 U.S. 367 (1875).

The history and power of eminent domain is well established and consequently generates minimal controversy when compared to other more volatile elements of the eminent domain process, such as just compensation and public use.  In subsequent articles, we’ll evaluate the types of eminent domain “takings”, participating in the eminent domain process and appealing a condemnation decision.

Read Eminent Domain Process, Powers and History Part 2

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