Generally speaking, the doctrine of eminent domain relates to the power of the sovereign (or government) to acquire private property (Paul, 34). The government can exercise the power itself or delegate it to its assigns. Other terms used synonymous to it include appropriation, condemnation, compulsory purchase/acquisition, and expropriation. The underlying philosophy of the doctrine is that the government requires the property for public use. The doctrine has a long history and as will be demonstrated, it has changed over time and to some extent deviated from its original intent. These changes have elicited scholarly views as to the necessity of the doctrine in the contemporary society.
The term eminent domain has its origin from the latin phrase dominium eminens, which was used to refer to the supreme lordship of the sovereign over all land in the territory. During the 1100s, all land belonged to the king or emperor as at then they were sovereign (Reynolds, 12). The subjects owned land as tenants of the sovereign, and thus the sovereign could acquire any land at any time. At some point the sovereign could take the land at for any purpose, however over time the reason for acquisition was limited to public use.
The British adopted this doctrine from the Romans and it became a part of the common law. Under common law, the state was required to pay a just compensation to the owner, save for unimproved land (Reynolds, 11). Additionally, the acquisition of the land must be for a demonstrable public purpose such as building roads and other public utilities. These requirements were made as early as 1215 in the Magna Charta (Paul, 72). When the British came to America they introduced this doctrine, and it inevitably found its way to the Constitution.
The Fifth Amendment, through the taking clause recognizes the state’s power to acquire property but limits the acquisition for public use and requires compensation to be paid. An additional limitation is found in the Fourteenth Amendment, which prohibits deprivation of property without due process of the law. Of note is the fact that the taking clause does not define ‘public use’ or ‘property’. This has led to the use of eminent domain to acquire personal and intellectual property, which was not the original intent of the doctrine; this has raised some problems.
It is however the failure to define ‘public use’ that has caused many problems with the use of the doctrine. The situation is compounded by the fact that the Supreme Court has given latitude to the States to define public use. This has led to States acquiring private property and then transferring it to private owners just to raise revenue, as was seen in the case of Kelo v. City of New London, 545 U.S 469 (2005). Due to public outcry after the decision, many States have legislated to restrict such acquisitions.
When the government expresses its intention to acquire private property, the target property is referred as condemned. The owner is given time to challenge the acquisition, with most challenges relating to the contemnor’s intended use of the land. Where there is no challenge the contemnor is required to pay compensation to the owner the market value of the property. This kind of compensation is invariably not sufficient as it does not cover consequential or incidental loses such as diminution of good will, relocation costs, and depletion of value of a property due to construction of a public utility such as sewage plant (Paul, 80). Additionally, fees paid to appraisers, valuers, and lawyers are not recovered. Accordingly, the owner of a condemned property in most cases ends up bearing losses.
These challenges posed by the exercise of eminent domain have led to questions as to whether the power is relevant today. Those opposed to it have pointed to other alternatives available to the states to acquire property, and at the same time not disposes or occasion losses to the owner. The doctrine is however a necessary evil, and to states have attempted to overcome its challenges through legislation. Accordingly, states will inevitably continue exercising the power of eminent domain.
Paul, Ellen Frankel. Property Rights and Eminent Domain. New Jersey: Transaction Publishers,
Reynolds, Susan. Before Eminent Domain: Toward a History of Expropriation of Land for the
Common Good. North Carolina: University of North Carolina Press, 2010. Print.