History of Eminent Domain

Show all

Eminent domain is the power given to or by the government to take possession of private property without the consent of the owner. This includes both residential and commercial property...

History of Eminent Domain

Eminent domain is the power given to or by the government to take possession of private property without the consent of the owner. This includes both residential and commercial property, farms, ranches and other real estate. It may be partial or a complete taking, physical or regulatory. Eminent domain is protected by the Fifth Amendment, but it’s been around for much longer.

Beginning in the US

Taking private property for government use has been around for centuries. It was often common practice for a government to take any property they deemed suitable for any reason with no payment to the person to which it belonged.

The early forefathers of the United States were concerned that the government would abuse its power with eminent domain, which is why they drafted the clause in the Fifth Amendment, which states, “Nor shall private property be taken for public use, without just compensation.” This clause protects property owners in two ways. First, the government is limited to taking property only for public use. Second, the government must pay the property owner for the property it takes.

Second, they will want to receive compensation for any damages and losses incurred as a result of the condemnation. This may include loss of income and other severance damages. The amount will be higher for a business that bases its income on location than for one that is location-independent.

Early Uses

In the early years of the country, governments only exercised eminent domain power for roads, bridges, public buildings, parks and other public facilities. They paid the property owners for the right to take said property.

The power to condemn property for public use began to expand to private companies that provided a service for the public, such as railroad companies and utility companies. These businesses were heavily regulated to ensure that everyone had equal access to the services provided.

Expansion of Public Use

One of the biggest cases to have an impact on eminent domain came about in 1954 with Berman v. Parker. In this case, a commercial building and the land it sat upon was taken by the District of Columbia for a redevelopment project. This decision expanded the use of eminent domain from public use to public purpose with the intention to remove the blight and prevent slum conditions.

In the case of Gwathmey v. United States in 1954, NASA was able to expand its Cape Canaveral launch facility. Other acts of eminent domain allowed for the expansion of the Redwood National Forest in California and the establishment of the Big Cypress National Preserve, which is located in Florida.

While the growth of eminent domain power has led to the development of many projects designed to improve and benefit the public, there has also been an increase in the abuse of this power. For this reason, it is always important to hire an attorney to review a notification of eminent domain and ensure the property owner’s rights have not been violated.