Eminent domain (US), compulsory purchase (United Kingdom, New Zealand, Ireland), resumption (Australia) or expropriation (Canada, South Africa) in common law legal systems is the inherent power of the state to expropriate private property without the owner's consent, either for its own use or by delegation of the taking power to third parties who will devote it to "public uses", the most common examples being public utilities or railroads. 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, who used the term dominium eminens. 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. Some states (New York, Louisiana) use the term appropriation as a synonym for an eminent domain taking.
Governments most commonly use the power of eminent domain when the acquisition of real property is necessary for the completion of public projects such as roads, military installations, or public buildings. Some states require that before resorting to the use of eminent domain the condemning body must make an offer of purchase to the owner.
The term expropriation as used in the law of eminent domain is not to be confused with situations in which private property is seized from thieves and confiscated by the government.
The term condemnation is used to describe the act of a government exercising its power of eminent domain to transfer title to private property from its rightful owner to itself. It is not to be confused with the same term that describes a declaration that real property, generally a building, has become so dilapidated as to be legally unfit for human habitation due to its physical defects. This type of condemnation of buildings (on grounds of health and safety hazards or gross zoning violation) usually does not deprive the owner of the title to the property condemned but requires the owner to rectify the offending situation.
Condemnation via eminent domain indicates the government is taking the property or an interest in it, such as an easement. In most cases the only thing that remains to be decided when a condemnation action is filed is the amount of just compensation, although in some cases the right to take may be challenged by the property owner on the grounds that the attempted taking is not for a public use, or has not been authorized by the legislature, or because the condemner has not followed the proper procedure required by law.
The exercise of eminent domain is not limited to real property. Governments may also condemn personal property, including a contract or a franchise, as well as intangible property such as patents, trade secrets and copyrights.
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 occasionally 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 owner's 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. The U.S. Supreme Court has largely given the public use requirement an expansive interpretation and has allowed takings of private property for reconveyance to other private parties, or in some cases by private parties directly, on the theory that the new owners will put the taken land to more lucrative uses that are likely to generate more tax revenues.
Over the years the definition of public use has expanded to include so-called economic redevelopment projects that use eminent domain seizures to enable new commercial development or redevelopment for the purpose of improving the community. The Supreme Court's decision in Kelo v. City of New London, 125 S. Ct. 2655 (2005) allowing such takings has inspired widespread protests and the legislatures of several states have enacted or are considering state legislation that would curb this practice. The Supreme Courts of Illinois, Michigan, Ohio and Georgia have recently ruled to the contrary, and do not allow such takings under their state constitutions.
The protesters maintain that the Kelo judicial approach favors wealthy redevelopers at the expense of taxpayers and individual property owners, and encourages profligate municipal expenditures in support of dubious private projects that sometimes fail to achieve the promised public benefits.
Most courts have held the fair market value of the condemned property to be the constitutionally required "just compensation". Its determination is a judicial question, and it is usually determined in a trial by jury, on the basis of the parties' appraisal testimony. Some states (Connecticut, New York and Rhode Island) do not use juries. There, condemnation awards are made by judges.[1] Critics contend this damages personal property rights.
Public use
The current Supreme Court understanding dates back to 1984 when Justice O'Connor held in Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984) that Hawaii's redistribution of land passed constitutional muster. One must understand what the High Court had held as "public" in public use; for local government in zoning cases as in Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926) and in city urban renewal projects like in Berman v. Parker, 348 U.S. 26 (1954) public use was quite expansive. O'Connor tried to craft an opinion which allowing for the state's actions, tried to limit incentives for expansive views of public use. In an earlier case Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982), Justice Thurgood Marshall struck a blow for private property ruling that the cable TV company's use of the property owner's building (landlord Loretto) was not a public use; even using an inch of the exterior of the building trenched upon the owner's Fifth Amendment "takings clause" rights and held the cable TV company use of that tiny part to be unconstitutional.
The current rule on public use upholding the eminent domain power of state government was generally affirmed by Kelo v. City of New London, 125 S. Ct. 2655 (2005), though the justices recognized that the several states have the authority to pass statutes or state constitutional amendments further restricting eminent domain by either defining public use narrowly in their states or by granting property owners more rights than the federal Constitution if they so chose. 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. One such amendment will be decided on during Florida's upcoming election.
Economic argument of hold outs
Supporters contend that seizures of private property are necessary to the improvement of communities in many situations in which transactions costs will prevent private parties from reaching efficient use of land.[Please name specific person] 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 [2], 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 1950s 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. It has until recently been almost totally used for such public works, additionally including ports and airports and government complexes nationwide.
Nuisance law
When a property owner's use is improper, the state under its broad police power may ban it as in Hadacheck v. Sebastian 239 U.S. 394 (1915) in which Justice McKenna held that an owner of a brickyard business was not entitled to compensation because the zoning laws in Los Angeles prohibited his use because it was a nuisance.
Safeguards against government action
Property-rights advocates contend that abuses of the exercise of these powers in the past require substantial safeguards to the public today, including 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 seized. 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 displaces. 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, roads, and other local improvements. The extensive use of eminent domain for such purposes as economic development is currently under attack in many jurisdictions and there is a movement to pass state statutes to limit this use. Governor Richardson of New Mexico became the first governor to veto eminent domain reform legislation resulting from this recent surge in public interest.[3]
Bush Executive Order
On June 23, 2006, President George W. Bush issued an executive order stating in Section I that the Federal Government must limit its use of taking private property for "public use" with "just compensation", which is also stated in the constitution, for the "purpose of benefiting the general public." He limits this use by stating that it may not be used "for the purpose of advancing the economic interest of private parties to be given ownership or use of the property taken."
Executive Order: Protecting the Property Rights of the American People
By the authority vested in me as President by the Constitution and the laws of the United States of America, and to strengthen the rights of the American people against the taking of their private property, it is hereby ordered as follows:
Section 1. Policy. It is the policy of the United States to protect the rights of Americans to their private property, including by limiting the taking of private property by the Federal Government to situations in which the taking is for public use, with just compensation, and for the purpose of benefiting the general public and not merely for the purpose of advancing the economic interest of private parties to be given ownership or use of the property taken.
Sec. 2. Implementation. (a) The Attorney General shall:
(i) issue instructions to the heads of departments and agencies to implement the policy set forth in section 1 of this order; and
(ii) monitor takings by departments and agencies for compliance with the policy set forth in section 1 of this order.
(b) Heads of departments and agencies shall, to the extent permitted by law:
(i) comply with instructions issued under subsection (a)(i); and
(ii) provide to the Attorney General such information as the Attorney General determines necessary to carry out subsection (a)(ii).
Sec. 3. Specific Exclusions. Nothing in this order shall be construed to prohibit a taking of private property by the Federal Government, that otherwise complies with applicable law, for the purpose of:
(a) public ownership or exclusive use of the property by the public, such as for a public medical facility, roadway, park, forest, governmental office building, or military reservation;
(b) projects designated for public, common carrier, public transportation, or public utility use, including those for which a fee is assessed, that serve the general public and are subject to regulation by a governmental entity;
c) conveying the property to a nongovernmental entity, such as a telecommunications or transportation common carrier, that makes the property available for use by the general public as of right;
(d) preventing or mitigating a harmful use of land that constitutes a threat to public health, safety, or the environment;
(e) acquiring abandoned property;
(f) quieting title to real property;
(g) acquiring ownership or use by a public utility;
(h) facilitating the disposal or exchange of Federal property; or
(i) meeting military, law enforcement, public safety, public transportation, or public health emergencies.
Sec. 4. General Provisions. (a) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(b) Nothing in this order shall be construed to impair or otherwise affect:
(i) authority granted by law to a department or agency or the head thereof; or
(ii) functions of the Director of the Office of Management and Budget relating to budget, administrative, or legislative proposals.
(c) This order shall be implemented in a manner consistent with Executive Order 12630 of March 15, 1988.
(d) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity against the United States, its departments, agencies, entities, officers, employees, or agents, or any other person.
GEORGE W. BUSH
THE WHITE HOUSE,
June 23, 2006.