Taking of Property

Author:Joseph L. Sax

Page 2643

The authority of government to acquire private PROPERTY from an involuntary owner (usually called the power of EMINENT DOMAIN) is recognized in the Fifth Amendment to the Constitution, which provides: "nor shall private property be taken for public use, without JUST COMPENSATION." The public use and compensation requirements of the Constitution apply not only to acquisitions by the federal government but?by INCORPORATION in the FOURTEENTH AMENDMENT?to acquisitions by the states as well. Similar provisions appear in the state constitutions, and the state and federal requirements are usually identically interpreted. It is, however, possible that a taking would pass muster under the federal Constitution and still be held to violate the state constitutional provision (or vice versa).

The requirement of PUBLIC USE has been liberally interpreted by the courts, which rarely find that a taking is not for a public use. For example, property may be taken for resale to private developers in an urban renewal project, or for the development of an industrial park. Indeed, the courts have permitted authority to take private property to be vested by LEGISLATION in privately owned public utilities, such as water companies. The test is not ultimate public ownership, or even direct public benefit, but rather the general benefit to the public from projects that are publicly sponsored or encouraged to promote the economy or the public welfare. The only clear limits on the broad interpretation of "public use" would be (1) the grant of the taking authority to a private company simply to improve its private economic position; or (2) the use of the taking power by the government if government itself were simply seeking to make money by engaging in strictly entrepreneurial activities.

The requirement of "just compensation" has been interpreted to mean the amount a willing seller would get from a willing buyer in the absence of the government's desire to acquire the property. The owner is not entitled to receive more for the property simply because the government has an urgent need for it?as for a military base. Neither may the owner receive less compensation because the government's plan for the area?to install a garbage dump, for example, has depressed neighborhood values. Nor is the owner entitled to increased compensation merely because the property has special value to him, such as sentimental or family value, or because he would...

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