Introduction

• Library: Eminent Domain: A Handbook on Condemnation Law (ABA) (2011 Ed.)

Daniel P. Dalton

HISTORY OF EMINENT DOMAIN

Eminent domain has a long and distinguished legal history, dating from the first limits on sovereign power in the Magna Carta. Just compensation is a newer concept, and court decisions such as Kelo v. New London make the exercise of eminent domain controversial. Can government condemn property to increase its tax base? Can the state transfer property from one private owner to another for incidental public benefit, and does this constitute "public use"?

Eminent domain traditionally was used to acquire property for roads, waterways, defense installations, government and public buildings, and the interstate highway system; more recently, it has been a favored tool in developing urban areas, creating shopping malls, and building big-box retail stores. We hope with this book to introduce general practitioners working for condemnors and property owners alike to the many intricacies of condemnation practice.

The term "eminent domain" was coined by Hugo Grotius (15831645), a Dutch jurist and philosopher of natural law, to describe the power of the state over natural property.¹ "Eminent domain or condemnation is the power of the sovereign to take private property for public use without the owner's consent."² This inherent power allows the sovereign to shape the property's use as it deems fit.³ Eminent domain law in the United States is steeped in colonial understandings of land use. In fact, the government's power of eminent domain was long established by the time the United States was founded.

Today, condemnees are compensated through the Fifth Amendment's takings clause, but this was not always true. Just compensation is a limit on the inherent power of the sovereign, not a grant of power.⁴ "The principle that the state necessarily owes compensation when it takes private property was not generally accepted in either colonial or revolutionary America."⁵ Uncompensated takings were frequent, justified both by appeals to the Crown, whose officials "justified uncompensated takings by appealing to royal prerogative and limitations contained in original land grants," and by republicanism, the ideology of the American Revolution.⁶

The first colonial settlers to obtain land rights derived title from some public entity: a chartered company, a provincial land office, or a town.⁷ "When distributing land, these public entities sometimes required settlers to perfect their ownership by making certain improvements on their land, such as building a house or clearing an acre of land."⁸ Some argue that when these conditions on settlers' rights were enforced, they were not viewed as diminishing the owners' legal interests, "because the rights received by the original grantees were qualified by the grants."⁹ Colonial officials justified stripping title to undeveloped land by maintaining that the landowners had not honored the conditions on land ownership.¹⁰

Colonial legislatures routinely took private property without compensating the owner.¹¹ Undeveloped land was simply transferred to another person.¹² Such uncompensated takings were mostly to build public roads and generally promote economic growth.¹³ All colonies except Massachusetts allowed undeveloped land to be taken for roads without compensation.¹⁴

Few precedents exist for the Fifth Amendment's takings clause.¹⁵ The 1215 Magna Carta limited the absolute power of the English sovereign to take land but did not require payment of compensation. The Fifth Amendment, an extension of the Magna Carta, further limited the sovereign's power by requiring just compensation. This requirement was not generally recognized at the time of framing. No colonial charter or state constitution recognized that regulations could give rise to a compensation requirement.¹⁶ Colonial charters that protected personal or real property did so by a procedural law rather than by substantive right.¹⁷ These provisions can be traced back to the 1215 Magna Carta, Article 39: "No free man shall be . . . dispossessed except by the legal judgment of his peers or by the law of the land."¹⁸ Thus a decision-making body, either a jury or state legislature, determined when to take property and when to compen-sate.¹⁹ Authorizing statutes typically provided that juries could award compensation for land taken,²⁰ but colonial governments often took private property without doing so.²¹

MATE CONSTITUTIONS

The earliest Revolution-era state constitutions followed colonial precedent, with only three containing eminent domain clauses and none containing just compensation requirements.²² "The three simply echoed Article 39 of Magna Carta, providing that the consent of the owner or of the legislature was needed for the state to exercise its eminent domain power."²³

Two states, Vermont and Massachusetts, ratified constitutions with compensation requirements in 1777 and 1780, respectively. Both states provided for compensation when private property was taken for public use.²⁴ Moreover, the Northwest Ordinance of 1787 stated, "Should the public exigencies make it necessary, for the common preservation, to take a person's property, or to demand his particular services, full compensation shall be made for the same."²⁵

In England during this era, compensation was now "the law of the land" and was incorporated into due process and takings clauses.²⁶ William Blackstone, author of the Commentaries on the Laws of England (1765-1769), advocated compensation for takings, and his work was widely read in America.²⁷ In addition, controversial situations during the Revolutionary War may have led to a desire to protect the propertied classes.²⁸

THE FIFTH AMENDMENTS TAKINGS CLAUSE

Although the Northwest Ordinance of 1787 set a precedent for a constitutional compensation requirement, states did not demand such a limitation on the federal government in the Bill of Rights.²⁹ "Regardless of political belief, few initially felt that [a] just compensation requirement was a necessary restraint on a federal government that would have little occasion to take property."³⁰ Nonetheless, James Madison, author of the just compensation clause in the Fifth Amendment, realized the importance of national ratification of the requirement and included it in the constitutional amendments he proposed to Congress.³¹ Madison had two reasons to propose the clause. First, he wanted "to bar the uncompensated taking by the national government of chattel and real property"—the same bar that existed in Vermont, Massachusetts, and the Northwest Ordinance.³² Second, he hoped that the clause would "impress on the people the sanctity of property."³³ Madison explained in his essay "Property" that the Fifth Amendment committed the government to the proposition that "no land or merchandize" shall be taken directly, even for public use, without indemnification to the owner.³⁴

The Fifth Amendment states in part: "nor shall private property be taken for public use, without just compensation." This language has been interpreted in every...