The Source of Eminent Domain Powers

 

 

Though most people have heard of eminent domain, you may not realize just how and why federal and state government entities have the power to take private property from landowners for public use. Many believe that eminent domain powers are sourced from the 5th Amendment¹ of the United States Constitution. However, eminent domain is actually a power based on sovereignty and does not come from any provision in the constitution. The 5^th Amendment then sets out certain limitations and requirements on the government’s power to take private lands.

In the 1870’s, the federal government wanted to claim land to build a post office in Ohio and the landowner challenged the taking. The Supreme Court of the United States upheld the taking,² ruling that eminent domain is necessary for a perpetual and effective government. Following that case, the most common reason for eminent domain actions was for transportation development and improvements. Railroads, highways, and other roadways all needed to be built as the population expanded into more remote areas of the country. However, with the population growing, certain areas had no public land left to utilize, so the government had to turn to private lands to accomplish its goals and complete projects.

Throughout the past 150 years, courts have regularly permitted the government to take land as long as it meets the “public use” requirement. In more recent decades, courts have widely expanded the interpretation of what constitutes a public use and government entities have been able to successfully pursue condemnation actions for commercial development projects. The government must prove that the private projects will benefit the public in some way, though the ability to take lands under eminent domain is not as limited as it once had been.

Discuss your situation with an experienced eminent domain attorney today

Though takings under eminent domain are permissible, the government must still provide just compensation to landowners. Having the assistance of a skilled condemnation attorney can protect your rights as a landowner and make sure the government does not overstep the bounds of its powers. Call the law firm of Sever Storey, LLP today at 888-318-3761 for help today.

References:

¹https://www.law.cornell.edu/wex/fifth_amendment

²https://scholar.google.com/scholar_case?case=3471723848311894976&hl=en&as_sdt=6&as_vis=1&oi=scholarr