What is Eminent Domain?

Eminent domain is defined as the power of the federal or state government to take private property for a public purpose, even if the property owner objects.  The Fifth Amendment to the United States Constitution requires that the government provide just compensation to the owner of the private property that is to be taken.  Eminent domain can have a tremendous effect on a wide variety of property rights, including air, water and land rights.  The government is required to go through condemnation proceedings when it takes property by eminent domain.  Throughout these proceedings, the property owner should be afforded the right of due process.

Eminent domain is a concept whose existence can be traced all the way back to biblical times when King Ahab of Samaria offered Naboth compensation for Naboth’s vineyard.  Eminent domain is also sometimes referred to as “condemnation” or “expropriation.”  These are general terms that describe forcible government acquisitions of property for any reason.  Over time, the concept of eminent domain has spread to and developed in countries around the world.  These countries have used their own versions of eminent domain law to enable development that may have been hindered without the power.  The United Kingdom, Australia, Canada, France, Germany and developing countries in Africa, Asia and South America, have all used this law to pursue the development of their territories.

France was the first country to officially recognize a private property owner’s right to just compensation for property taken by the government.  In 1789 they set forth their version of the Constitution, entitled the French Declaration of the Rights of Man and of the Citizen.  Part of this document states, “Property being an inviolable and sacred right no one can be deprived of it, unless the public necessity plainly demands it, and upon condition of a just and previous indemnity.”  This forerunner of the modern eminent domain power requires a public necessity and indemnification to property owners for the loss of their land.

In English law, the power of eminent domain is derived from the form of real property that the owner holds.  Many landowners assume that their property rights are absolute under the law, but this is usually not the case.  Instead, the government authority has usually created the property in fee simple, a concept that was derived from the feudal fiefs.  The same authority may void or condemn the fee simple and seize the land as they see fit.  For legal continuity, many countries that have never had the feudal system to begin with have perpetuated the system of fee-simple Property Ownership, including the power of eminent domain.

Next, the United States recognized eminent domain in the Fifth Amendment of the Constitution, which states, “… nor shall private property be taken for public use, without just compensation.”  The Fifth Amendment essentially grants the government the right to take private property through eminent domain.  The Due Process Clause of the Fourteenth Amendment guarantees just compensation, which is applicable to the states.  Most state governments derive their power to initiate eminent domain condemnation proceedings from their state constitutions, while a few are granted the power by statute.  Connecticut, Massachusetts and North Dakota are a few states that have statutes authorizing eminent domain takings.  The state statutes authorize a municipality or a redevelopment agency to use eminent domain for economic development purposes subject to specified conditions, including approval by the municipality’s legislative body and conformance with a redevelopment plan.   These constitutional and statutory provisions require federal, state and local governments to pay an owner for his or her private property taken for public use.  This payment should be made at the time the property is taken.

The eminent domain power was created to authorize the government to conduct a compulsory sale of an individual’s private property for the common welfare, such as health and safety.  In addition to the public use requirement, the just compensation requirement is in place to ease the financial burden incurred by the property owner for the benefit of the public purpose.