12.2 Overview

• Library: The Virginia Lawyer: A Deskbook for Practitioners (Virginia CLE) (2018 Ed.)

12.2 OVERVIEW

12.201 History. Government taking of private property for the sovereign is referenced in the Old Testament. Jezebel, King Ahab's wife, orchestrated the death of Nabath to acquire Nabath's vineyard for King Ahab's use. ³ We certainly have come a long way from this.

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The rights of citizens in ancient Rome were respected to the degree that no citizen's property was ever taken for public use. With the fall of Rome, the feudal system gave rise to the concept that the sovereign owned all land. The practice of taking land for public use was not necessary in light of the theory that the sovereign already owned all land. The Magna Carta changed this thinking.

The term "eminent domain" was coined in 1625 by the Dutch jurisprudence scholar Hugo Grotius. Grotius was a pioneer in natural law in the late sixteenth and early seventeenth centuries. He wrote in De Jure Belli et Pacis [On the Law of War and Peace] as follows:

[T]he property of subjects is under the eminent domain of the state, so that the state or he who acts for it may use and even alienate and destroy such property, not only in the case of extreme necessity, in which even private persons have a right over the property of others, but for ends of public utility, to which ends those who founded civil society must be supposed to have intended that private ends should give way. But it is to be added that when this is done the state is bound to make good the loss to those who lose their property. ⁴

In England, the term "eminent domain" defines the boundaries of the jurisdictional power of a sovereign. In contrast, in the United States, the term gained currency in the first half of the nineteenth century with the meaning that is generally attached to it now, namely, the taking of private property for public use, which necessarily requires payment of just compensation to the owner whose property the government or its agencies took.

12.202 Fundamental Principles of Government Takings.

A. Police Power. Not all government taking of property is a taking within the meaning of the Fifth Amendment of the United States Constitution or Article I, Section 11 of the Virginia Constitution, both of which require payment of just compensation. Courts have approved the government's use of its "police power" to take private property rights without compensation; this generally occurs when the government regulates the use of property to promote and secure public health and safety. The most common uses of the

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police power include matters such as zoning, environmental regulation, and historic preservation. Modern regulations governing the use of private property have evolved to prevent harms not associated with traditional concepts of public health and safety. These modern policy bases for regulation of private property have given rise to the United States Supreme Court decisions that require compensation for some of the modern regulatory takings. This area...