Eminent Domain

Robert L. Mills - Missouri

On 23 June 2005, the Supreme Court ruled in a 5 to 4 decision that fostering economic development is an appropriate use of the government’s power of eminent domain. This was one of the most closely watched property right cases in years. Media commentators spoke of the Supreme Court opinion in Kelo v. City of New London, Connecticut (04-108) as if it were the end of private property in the United States. They spoke as if property rights prior to this time were pristine and unfettered. As a look ahead, such was not the case. Instead, let us discuss what eminent domain is, its legal underpinnings, its history and finally, the road ahead.

FreeDictionary.Com defines eminent domain as, “the power of a governmental entity (federal, state, county or city government, school district, hospital district or other agencies) to take private real estate for public use, with or without the permission of the owner. The usual process includes passage of a resolution by the acquiring agency to take the property (condemnation), including a declaration of public need, followed by an appraisal, an offer, and then negotiation. If the owner is not satisfied, he may sue the governmental agency for a court’s determination of just compensation. Public uses include schools, streets and highways, parks, airports, dams, reservoirs, redevelopment, public housing, hospitals and public buildings.”

The Fifth Amendment to the U.S, Constitution, adopted in 1791, includes the following declaration, “No person shall…be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” This clause originally applied only to the federal government and not to the states. However, the Supreme Court long ago decided that section 1 of the Fourteenth Amendment (1868), which prohibits any state from depriving any person of property without due process of law, has in effect made the Fifth Amendment taking clause applicable to state and local governments.

Eminent domain is an ancient right of government. It has been a recognized power of government for hundreds of years before the writing of the U.S. Constitution. The Magna Charta recognized this right, stating, “No free man shall be arrested, or imprisoned, or deprived of his property, or outlawed, or exiled, or in any way destroyed, nor shall we go against him or send against him, unless by legal judgement of his peers, or by the law of the land.” As a result, it is settled law and settled principle that government can take land so long as just compensation and due process are granted.

There are several types of takings that can occur through eminent domain:

  1. Complete Taking - In a complete taking, the government takes title to all of a piece of property for the erection of government facilities such as post offices, forts, courthouses, roads, etc.. This was the class of action as originally envisioned in the Constitution.
  1. Partial Taking - If the taking is of part of a piece of property, such as the condemnation of a strip of land to expand a road, the owner should be compensated both for the value of the strip of land and for any effect the condemnation of that strip has on the value of the owner’s remaining property.
  1. Temporary Taking - Part or all of the property is appropriated for a limited period. The property owner retains title, is compensated for any losses associated with the taking, and regains complete possession of the property at the conclusion of the taking. For example, it may be necessary to use, temporarily, a portion of an adjacent parcel of property to complete a construction or highway project.
  1. Easements and Rights of Way - It is also possible to bring an eminent domain action to obtain an easement or right of way. For example, a utility company may obtain an easement over private land to install and maintain power lines. The property owner remains free to use the property for any purpose which does not interfere with the right of way or easement.

In addition, there are many other governmental actions, falling well within the general powers of governments to act in the public interest, which significantly reduce the values of assets to their private owners, but without in the least suggesting that ownership of the affected assets has passed to the government. Cases of this kind generally fall into one or the other of two major categories, which we can call regulation and quasi-tort.

In the case of regulation, the government uses its legislative power - its power of enacting new laws to revise the bounds of lawfully permitted conduct - in a way that reduces the values of assets to their owners by imposing a new restriction on the uses to which those assets lawfully may be devoted or the manner in which they lawfully may be used. Examples are zoning laws, environmental laws, rent control laws, and workplace safety laws.

In a case of quasi-tort, the government acts directly on the physical environment in some way that results, through some chain of physical and social causation, in an impairment of the values of privately held assets to their owners. For example, the government dams a river with the predictable consequence of periodically and partially flooding some upstream pastures or it constructs a new thruway with the predictable consequence of permanently drying up the flow of traffic that used to provide a good business for the restaurants in the nearby side streets, or it flies its military aircraft at such a low altitude over certain land as to make that land unusable for any productive purpose. These cases are referred to as quasi-tort because they are the sorts of cases in which the injured owner would have lodged a common-law tort action against the person whose actions caused the disturbance, but for the legal doctrine of sovereign immunity.

These and other variants of the use of eminent domain and the resulting condemnation proceedings fill volumes in law libraries across the country. For the purpose of this article, we will be discussing the course of action in which all of the property at issue is appropriated. It would be easy to state that this action was necessary due to the space constraints of this article - That is true. The chief reason, however, would be the inability to formulate a consistent position. Consider for example, Justice Brennan’s summation in his opinion for the Supreme Court in Penn Central Transportation Company v. New York (1978): “While this Court has recognized that the Fifth Amendment’s guarantee is designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole, this Court, quite simply, has been unable to develop any ‘set formula’ for determining when ‘justice and fairness’ require that economic injuries caused by public action be compensated by the government, rather than remain disproportionately concentrated on a few persons. Indeed we have frequently observed that whether a particular restriction will be rendered invalid by the government’s failure to pay for any loses proximately caused by it depends largely ‘upon the particular circumstances in that case.’”

Let us now examine the historical examples of complete takings. The principals of eminent domain have been under attack almost before the ink was dry on the Constitution. Politicians have been interpreting “public use” to include almost any useful economic purpose for a long time. They did it all throughout the 20th and even the 19th centuries to build factories, to create right-of-ways for railroads, and more.

The language of the Fifth Amendment’s takings clause, which provides that “private property shall not be taken for public use, without just compensation,” makes it clear that the government’s eminent domain power centers on two words: “public use.” During the past two centuries, the definition of “public use” has evolved from “public ownership” (such as a public highway, which is owned by the government and used by the public), to “use-by-the-public” (such as a railroad, which is owned by a private entity but used by the public), to its current prevailing definition, “public purpose or benefit.” This most recent definition gives the state nearly limitless power to take private property for uses that are arguably both private and public.

Two modern Supreme Court cases represent the upper limits for expansively defining public use. In Berman v. Parker, the Supreme Court upheld the District of Columbia’s use of eminent domain to develop slum areas for possible sale to private interests. The purpose of the act in question was to improve areas of Washington that were “injurious to the public health, safety, morals and welfare’ of the community. Landowners argued that the project amounted to taking from one businessman for the benefit of another businessman. The Court found that if owner after owner were permitted to resist these redevelopment programs on the ground that his particular property was not being used against the public interest, integrated plans for redevelopment would suffer greatly.

In the second case, Hawaii Housing Authority v. Midkiff, the Court upheld Hawaii’s use of eminent domain to take titles from landlords and resell them to tenants in an attempt to reduce the concentration of land ownership among the descendants of the ruling families of the state. This case confirmed the ability of the state to use eminent domain to transfer property outright to a private party, so long as the exercise of the eminent domain power is rationally related to a conceivable public purpose.

In recent decades, there has been growing concern about the manner in which some states and units of government exercise their power of eminent domain. Some governments appear inclined to exercise eminent domain for the benefit of developers or commercial interests, on the basis that anything that increases the value of a given tract of land is a sufficient public use. Critics respond that this is absurd, and that there are few properties, no matter how upscale, which could not be made more valuable if developed in a different manner. For example, in one case, a town wished to exercise eminent domain over a residential neighborhood, so that an upscale condominium development could be built on that land. To advance that goal, they defined any home within the neighborhood as “blighted” if it did not have three bedrooms, two bathrooms, an attached two car garage and central air conditioning. The homeowners challenged the definition in court, and were ultimately successful in fighting the municipality’s efforts to take their homes.

In the Supreme Court opinion on Kelo v City of New London, Connecticut (04-108), Justice Stevens noted that earlier Supreme Court decisions interpreting the public use clause of the Fifth Amendment had allowed the use of eminent domain to redevelop a blighted neighborhood in Washington, to redistribute land ownership in Hawaii and to assist a gold-mining company in a decision by Justice Oliver Wendell Holmes in 1906.

“Promoting economic development is a traditional and long accepted function of government,” Justice Stevens said, adding, “Clearly there is no basis for exempting economic development from our traditionally broad understanding of public purpose.”

In a dissenting opinion, Justice Sandra Day O’Connor objected, “the words ‘for public use’ do not realistically exclude any takings, and thus do not exert any constraint on the eminent domain power”. Justice O’Connor continued saying, “Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded. The specter of condemnation hangs over all property. Nothing is to prevent the state from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall or any farm with a factory.”

There will be other, more expansive, eminent domain challenges to private property in the future. The question then is, how do we put this genie back in his bottle? Since the Kelo decision, 34 states passed laws restricting the use of eminent domain for private development.

So. What is the road ahead? The course of action most protective of private property rights would be to ignore the federal government and the Supreme Court and instead concentrate on restricting eminent domain at the state level.

Writing for the majority in the Kelo decision, Judge Stevens said that states remained free to place restrictions on their own use of eminent domain power through their own constitutions and laws.

Since the Supreme Court has indicated that they will defer to state laws on eminent domain, each person should contact their state representative and insist that each state’s laws on eminent domain are as restrictive as possible consistent with constitutional government.

Once again, the wisdom of the Founding Fathers is demonstrated. In this as in other matters, the best government is the local government. Duties of the federal government are to be few and specified. Those of the state and her people are to be numerous and unspecified.

After much serious discussion, a light-hearted presentation on eminent domain is presented here .


Robert L. Mills [send him mail] is a local citizen leader and activist in South Central Missouri. Robert has worked tirelessly to awaken his friends and neighbours to important issues in the community ranging from property to state sovereignty rights. Mr. Mills is an active member of the Missouri League of the South.



Worth Quoting

If ye love wealth better than liberty, the tranquility of servitude better than the animating contest of freedom, go home from us in peace.  We ask not your counsels nor your arms.  Crouch down and lick the hands which feed you.  May your chains set lightly upon you, and may posterity forget that ye were our countrymen.

Samuel Adams


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Edmund Burke