Eminent domain

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Eminent domain is the prerogative of a government to take private property, such as land, without the owners consent for public use with payment of reasonable compensation. Reasonable compensation is defined in terms of fair market value of the property. The government may exercise its right to eminent domain if the owner of the private property does not wish to sell the property to the government.

Common uses of eminent domain are generally for the building of infrastructure, such as railroads, highways or other public works or development projects.

United States Constitution

See also: Fifth Amendment and United States Constitution

The Fifth Amendment to the United States Constitution includes a provision which reads "nor shall private property be taken for public use, without just compensation." Summarily, the Fifth Amendment gives the government the right to exercise eminent domain so long as all stipulations have been met and in good faith.

Process

The process of eminent domain generally varies among states and jurisdictions. Generally, first the government must negotiate with the owner of the private property property a reasonable fair market value for the property in question. Still, if the owner of the property is adverse to selling the property to the government and the government remains resolute in their pursuit to exercise its right of eminent domain for the property, then the government must file a proceeding with the court to exercise their right of eminent domain in an official capacity. During the proceedings, the government must prove that this private property will be for public use. If proven successfully, fair market value of the private property will be determined through further proceedings. Finally, any payment to the owner must be used to resolve any debt the owners still hold on the private property. Subsequently, the remainder of the payment would go to the owner and the government would own the title of the property in question. Importantly, if the government does not prove their case that this private property will be for public use or if the private property owner has issue with the outcome or payment, both sides are able to appeal the decision rendered by the court.

Court decisions

See also: Kelo v. City of New London

Court case decisions have rendered new uses of eminent domain towards accepting projects for not only public use but for public benefit. In the 2004 case, Kelo v. City of New London, the Supreme Court of the United States set a precedent in the exercise of eminent domain. The Supreme Court decided that property can be transferred to a private owner, not the government, for economic development purposes. The Supreme Court's decision cites that an economic development project "create[s] jobs, increases tax and other city revenues and revitalizes a depressed or blighted area it qualifies as a public use." With this decision, many U.S. states have passed specific legislation which guard the abuse and use of eminent domain for this purpose. For more information on eminent domain law by state, please click here.

See also

• Eminent domain on the ballot
• Kelo v. City of New London
• Terms and definitions

External links

Suggest a link

• Cornell Law School, "Eminent domain"
• NCSL, "Eminent Domain Overview"
• CBS 60 Minutes, "Eminent Domain: Being Abused?
• New York Times, "Eminent Domain: A Long Shot Against Blight"
• Castle Coalition, "Fifty State Report Card Tracking Eminent Domain Reform Legislation Since Kelo,"

Additional reading

• Berliner, Dana. Opening the Floodgates; Eminent Domain Abuse in a Post-Kelo World, Institute for Justice, June 2006
• Redevelopment Wrecks: 20 Failed Projects Involving Eminent Domain Abuse, Institute for Justice, June 2006
• Myths and Realities of Eminent Domain Abuse, Institute for Justice, June 2006
• Galperin, Joshua U.A Warning To States, Accepting this Invitation May be Hazardous to Your Health (Safety and Public Welfare): An Analysis of Post-Kelo Legislative Activity, 31 Vermont Law Review 663 (2007).
• "Eminent Domain Abuse Survival Guide" presented by the Castle Coalition
• Berliner, Dana. Public Power, Private Gain, Institute for Justice, April 2003 (dead link)
• Ryskamp, John. The Eminent Domain Revolt: Changing Perceptions in a New Constitutional Epoch, New York: Algora Publishing, 2006.
• Epstein, Richard A. (1985). Takings: Private Property and the Power of Eminent Domain, Boston, Massachusetts: Harvard University Press