Eminent Domain
| Author | Jeffrey Wilson |
| Pages | 1177-1180 |
Page 1177
Grounded in the Fifth Amendment to the U.S. Constitution, the concept of eminent domain refers to the government's right to condemn and appropriate private property for public use. Other terms meaning essentially the same thing include "condemnation" (but that has additional implications, see below) and "expropriation." Through application of the Fourteenth Amendment, the power to exercise eminent domain is vested in both federal and state governments and subdivisions thereof (counties, cities, and towns, etc.). Such power also may be delegated to political subdivisions such as governmental agencies and local governments, as well as private persons or corporations that provide services or benefits to the public.
For years, the accepted scope of the term "public use" contemplated property being taken for such purposes as public roadways, bridges, parks, libraries, governmental buildings, utilities, etc. However, in the 2005 landmark case of Kelo v. City of New Landen, the U.S. Supreme Court made clear that the government could also appropriate property to private, for-profit real estate developers, if such development would result in economic growth for the betterment of the community.
The Fifth Amendment (made applicable to the states through the Fourteenth Amendment), which protects individual liberties from unwarranted governmental intrusion, states in relevant part, "… nor shall private property be taken for public use, without just compensation." Importantly, the provision does not preclude such government action, as long as there has been "just compensation."
Although most often applied to real property (real estate, including buildings), in fact, any kind of property may be taken. This includes both tangible and intangible property, such as franchises and contracts.
However, not all property can be appropriated or condemned for any purpose. Many states prohibit the exercise of eminent domain for property currently being used for such purposes as cemeteries, gardens and orchards, or factories. A landowner cannot convert the use of property to one of these uses in order to avoid condemnation, once proceedings have begun (notice of intent).
Page 1178
Often, governmental units, particularly at the local level, begin condemnation proceedings for private property that is not needed for public use, but rather, has been deemed a risk to the public health or safety. This, in fact, is the more appropriate use of the term "condemnation," although the authority or power invoked to condemn the property is that of eminent domain.
A "dedication" of land is a similar form of appropriation of private land (or an easement therein) for public use, but is effected voluntarily by the landowner, rather than through an adverse process of condemnation. A dedication may be express or implied through the landowner's conduct and the facts and circumstances related to the property. Notwithstanding, a dedication also may arise following an adverse (to the interests and/or use of the landowner) and exclusive use by members of the public under a claim of right. Such claim, by an...
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