Eminent domain
Eminent domain (US), compulsory purchase (United Kingdom,
New Zealand, Republic of Ireland), compulsory acquisition
(Australia) or expropriation (Canada, South Africa) in
common law legal systems is the lawful power of the state
to expropriate private property without the owner's consent,
either for its own use or on behalf of a third party.
The term eminent domain is used primarily in the United
States, where the term was derived in the mid-19th century
from a legal treatise written by the Dutch jurist Hugo
Grotius in 1625. The term compulsory purchase, also originating
in the mid-19th Century, is used primarily in England
and Wales, and other jurisdictions that follow the principles
of English law. Originally, the power of eminent domain
was assumed to arise from natural law as an inherent power
of the sovereign.
Governments most commonly use the power of eminent domain
when the acquisition of real property is necessary for
the completion of a public project such as a road, and
the owner of the required property is unwilling to negotiate
a price for its sale. In many jurisdictions the power
of eminent domain is tempered with a right that just compensation
be made for the appropriation.
Some coined the term expropriation to refer to "appropriation"
under eminent domain law, and may especially be used with
regard to cases where no compensation is made for the
confiscated property. Examples include the 1960 Cuban
expropriation of property held by U.S. citizens, following
a breakdown in economic and diplomatic relations between
the Eisenhower Administration and the Cuban government
under Fidel Castro. U.S. nationals and corporations held
vast amounts of Cuba's prime real-estate. Cuban authorities
offered just compensation for US properties, as they had
successfully done for Spanish, British and French properties
when they nationalized private property in Cuba, for the
common good. However, U.S. authorities refused, adhering
to the notion that those properties are still privately
owned by U.S. interests forty five years later. This is
in direct contrast with recent rulings by the US Supreme
Court which allows a corporation to displace a private
citizen from his/her realty, if the corporate development
is considered to be in the best interest of the municipality.
The term "condemnation" is used to describe
the act of a government exercising its authority of eminent
domain. It is not to be confused with the term of the
same name that describes the legal process whereby real
property, generally a building, is deemed legally unfit
for habitation due to its physical defects. Condemnation
via eminent domain indicates the government is taking
the property; usually, the only thing that remains to
be decided is the amount of just compensation. Condemnation
of buildings on grounds of health and safety hazards or
gross zoning violation usually does not deprive the owner
of the property condemned but requires the owner to rectify
the offending situation.
The exercise of eminent domain is not limited merely
to real property. Governments may also condemn the value
in a contract such as a franchise agreement (which is
why many franchise agreements will stipulate that in condemnation
proceedings, the franchise itself has no value).
Contents
* 1 Origins
* 2 Allodial vs Feodal Title
* 3 United States
Origins
The power of eminent domain in English law derives from
the form of real property. Many landowners assume that
their property right is absolute under the law, but this
is rarely the case. Instead, a county or other authority
has created the property in fee simple, a concept that
derives from feudal fiefs. The same authority may void
(or condemn) the fee and seize the land, as when a landowner
fails to pay property tax. According to William Blackstone,
"The reason of originally granting out this complicated
kind of interest, so that the same man shall, with regard
to the same land, be at one and the same time tenant in
fee-simple and also tenant at the lord's will, seems to
have arisen from the nature of villenage tenure. ... Though
they were willing to enlarge the interest of their villeins,
by granting them estates which might endure for their
lives, or sometimes by descendible to their issue, yet
did not care to manumit them entirely; and for that reason
it seems to have been contrived, that a power of resumption
at the will of the lord, should be annexed to these grants,
whereby the tenants were still kept in a state of villenage,
and no freehold at all was conveyed to them in their respective
lands."
English-speaking countries that never had the feudal
system have perpetuated the system of fee-simple property,
including the power of eminent domain, for legal continuity,
primarily because, as former colonies of the British Empire,
their land were at one time conquered by the British monarchy,
giving the monarchy Allodial Title to that land.
Allodial vs Feodal Title
Allodial Title is the title to land generally held in
freehold, by an individual or group that is sovereign
on that land. Thus, in English Law, only the Monarch holds
Allodial Title. All others are tenants of the sovereign
through their feudal vassalages. Sovereigns generally
gain allodial title either by grant of another sovereign
to such title, or through Right of conquest. In this respect,
while colonial American land grants were typically feudal
grants in fee-simple, the victory of the American cause
in the Revolutionary War is considered an act of conversion
to allodial title, such that the King was no longer the
sovereign of the colonies, however the new holders in
this case are the several states that engaged in the revolution,
and it is upon this basis that the practice of fee-simple
titles is continued in the United States. This is an issue
of dispute by right wing groups, however, with some individuals
occationally attempting to patent allodial titles to their
land. Some states, namely Nevada have instituted an Allodial
Title Program in which property owners can purchase Allodial
Title to their land essentially by paying an amount discounted
from the sum of all future property taxes for the term
of the owners life expectancy.
United States
In the United States, the Fifth Amendment to the Constitution
requires that just compensation be paid when the power
of eminent domain is used, and requires that the property
be taken for "public use". These requirements
are sometimes called the "takings clause." Most
courts have used "just compensation" to be the
fair market value of the condemned property. Over the
years the definition of "public use" has expanded
to include economic development plans which use eminent
domain seizures to enable commercial development for the
purpose of improving the community. [1] Critics contend
this perverts the intent of eminent domain law and damages
personal property rights.
The current Supreme Court understanding dates back to
Justice O'Connor's Hawaii Housing Authority v. Midkiff,
467 U.S. 229 (1984)[2] decision. Supporters contend that
it is necessary to the improvement of communities in many
situations in which transactions costs will prevent private
parties from reaching efficient use of land. This was
generally affirmed by the Susette Kelo, et al. v. City
of New London, Connecticut, et al., 125 S. Ct. 2655 (2005)[3],
more commonly Kelo v. City of New London decision, however
the justices recognised that the several states have the
authority to pass statutes or state constitutional amendments
further restricting eminent domain if they so choose.
Many have taken up the challenge, with Alabama, New Hampshire,
and several other states passing temporary statutes as
well as constitutional amendments to restrict eminent
domain strictly to uses in which the property will be
owned by a government entity. Conversely, some other communities
have taken Kelo as a license to seize at will.
In Calder v. Bull, 3 U.S. 386 (1798), Justice Samuel
Chase thought it was preposterous for the government to
take one person's property with no restriction and give
it to another private party for their own profit.
In other cases, eminent domain has been used by communities
to take control of planning and development. Such is the
case of the Dudley Street Initiative [4], a community
group in Boston, Massachusetts, which attained the right
to eminent domain and has used it to reclaim vacant properties
for the purpose of positive community development.
In the United States the use of eminent domain has been
a powerful driver in the development of the country and
its defense structure, enabling connections to be created
that would have been unlikely without its use. In the
last century it was a tool that enabled the construction
of the many defense installations during World War II
and the Cold War. Beginning in the early 1950's the Interstate
Highway System began and eminent domain was used to purchase
the 42,000+ miles of rights of way needed for construction.
Without eminent domain the Interstate would never have
been built out to its current extent. Its use has until
recently been almost totally used for such public works,
additionally including ports and airports and government
complexes nationwide.
The abuses of the exercise of these powers in the past
have led to substantial safeguards to the public today,
including extensive requirements to force the various
governments units that use eminent domain to document
the need for it and allow the public access to and comment
on the proceedings before the real property can be "taken".
Federal statutes require complete relocation programs
to be administered by the various states in order to receive
Federal participation in the costs of the improvements
(often 80%) and further require full certification that
the public process and benefits were offered to the "claimants"
and that the benefits were actually paid to the correct
claimants and displacees. The use of eminent domain has
slowed dramatically nationwide as the full build-out of
the Interstate System approaches and reflects the fact
that needs in the future will be for mostly projects of
a local nature, such as schools, local highways and other
such improvements. The extensive use of eminent domain
for such purposes as economic development are currently
under attack in many jurisdictions and a rush to pass
state statutes to limit this use is being contemplated
in more than 30 states as this is being written in December
2005. Governor Richardson of New Mexico became the first
governor to veto eminent domain reform legislation resulting
from this recent surge in public interest.[5]
