How can the Government Justify using The Power of Eminent Domain?

The government must prove that the four elements set forth in the Fifth Amendment are present in order to justify using the eminent domain power.  These elements include: (1) private property (2) must be taken (3) for public use (4) with just compensation.  There are differing views on how broadly or narrowly some of these elements should be interpreted.

1. Private Property

The first element of the eminent domain power requires that the property at issue be privately owned. Private property can include land as well as fixtures, leases, options, stocks, and other tangible items.  In fact, the rifle that was used by Lee Harvey Oswald to kill President John F. Kennedy was considered private property in an eminent domain proceeding.  More often than not, the eminent domain power is primarily used to take real property.  This element is generally not in dispute since property is usually clearly identifiable as either public or private.  Once the records have been examined and the property at issue has been identified as private, the next element to be satisfied is that the property is taken.

2. Taking

The second element of the eminent domain power requires the taking of all or part of a piece of property, as well as the taking of property by reducing its overall value.  Property value can be reduced by regulations or restrictions that affect the manner in which the owner can use the property, or impose burdens on the owner’s use and enjoyment of the property.  Implicit takings are government regulations that result in the taking of private property, although a taking is generally not intended by the government.  This could include regulations that allow for the taking of minerals, soil, rock or timber, appropriated by the government from an individual’s land, for use in a public project like a highway.  As a result, that public highway could also lead to other takings of private property.  For example, if the highway runs in front of homes on a coastline, the owners of the affected property should be compensated for the change of their land from oceanfront to obstructed inland property.  Generally, some form of compensation must be made when a restriction on the use of an owner’s property is extensive enough to amount to a taking of that property. 

Takings can even extend to the airspace above privately owned land.  Aircraft flight paths that significantly interfere with the property owner’s use and enjoyment may amount to a taking.  For these overhead flights to rise to the level of a taking, the aircraft must be flying low and frequently as to create an unreasonable interference with the owner’s use of the property.  If that is the case, the courts will deem the interference with the airspace directly above property a taking and protect the rights of the owner to the space above his or her land. 

Placing restrictions on private property inhibits the owner’s use and may infringe on his or her rights.  The government exercises its police power when it implements a regulation, and is able to control some aspect of use of the property. 

3. Public Use

The third, and most widely debated, element of the eminent domain power is that the property at issue must be taken for a public use.  This element, on its face, requires that the property taken be used for the benefit for the public.  The public use requirement can be looked at either broadly or narrowly.  Under the broad view, as long as the taking results in some benefit or advantage to the public as a whole, then the public use requirement will be met.  Under the narrow view, the public must use or have the right to use the condemned land, for the public use requirement to be met.  The legislature decides what a public use is and generally says that the public does not have to use the land as long as there is some evidence of a public purpose.  This follows the broad view and is an intensely debated issue.

The U.S. Supreme Court has recently decided a case dealing with the “public use” debate in Kelo v. City of New London, which involves a city’s seizure of property for private development to boost a city’s economic conditions.  This case will be discussed further in assessing the limits to what may be considered a “public” purpose in an eminent domain proceeding and how broadly the court is willing to extend the requirement.

4. Just Compensation

The final element of the eminent domain power in the Fifth Amendment is just compensation.  This requires that the amount of compensation awarded, when property is seized or damaged through condemnation, must be fair to the public as well as to the property owner.  The standard measure of damages is often the fair market value of the property harmed by a restriction or taken for a public purpose.  Usually Fair Market Value is determined by looking at comparable homes in the area or getting the property independently appraised.  Elements used in the consideration of the property’s fair market value include the history and general character of the area, the adaptability of the land for future buildings, and the use intended for the property after its taking.  The calculations do not take into account emotional values, relocation costs, affordability of another home in the surrounding area or property tax increases that the owner will have to bear.  The compensation should be paid to the property owner in cash, and the amount is determined as of the date title vests in the condemning agency.  Interest should be paid on the compensation award until the date of payment.