eminent domain

eminent domain, power of government to take private property for public use without the owner’s consent. Constitutional provisions in most countries require the payment of compensation to the owner. In countries with unwritten constitutions, such as the United Kingdom, the supremacy of Parliament makes it theoretically possible for property to be taken without compensation, but in practice compensation is paid. Confiscation is the term most often used in contrast to eminent domain to describe the taking of property by the state without compensation.

The idea of eminent domain as a power peculiar to sovereign authority but coupled with a duty to pay compensation comes from such 17th-century natural-law jurists as Hugo Grotius and Samuel Pufendorf. The English practice in the early 17th century was for Parliament to authorize the taking of property and either to prescribe the amount to be paid or to provide a judicial proceeding to determine it. The proceeding was held without the presence of the owner. The American colonies developed judicial procedures enabling the owner to be heard on the question of compensation.

There have been few legislative attempts in the United States to control or define what is just compensation. In general, the judicial definition is that just compensation is the fair market value at the time of the taking, the market value including not only the existing use value but also the best use to which the property may be put. Many states and the federal government have “quick-taking” statutes providing that, upon the deposit of adequate security, the government may take title and possession before the price is judicially decided.

Nearly all other countries have constitutional or statutory provisions requiring that compensation be paid for property taken. The French and German systems, unlike Anglo-American law, require that it be paid in advance of the taking by the government. In the countries influenced by French and German law, the question of the public purpose to be served by the taking is an administrative one and is not determined in the regular courts. Also, there are fewer general statutes providing for blanket authorization of condemnation for particular purposes (such as highways) than there are in the United States, and more often there is a requirement that expropriation of each particular parcel be authorized by the legislature.

In a landmark ruling in 2005, Kelo v. City of New London, the U.S. Supreme Court adopted an expansive interpretation of the power of eminent domain as defined in the “takings” clause of the Fifth Amendment to the Constitution (“private property [shall not] be taken for public use without just compensation”). Holding that the term public use should be understood to mean “public purpose,” the Court affirmed that government may take private property not only for use by the public but also for private use that results in a public benefit, in particular economic development.