Section 1 Introduction to the Law of Eminent Domain
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SECTION 1 INTRODUCTION TO THE LAW OF EMINENT DOMAIN Wherever there is sovereignty, whether in the old world, where it is held in trust for the people by things called kings, or in this country, where the people wear it upon their own shoulders, two great and fundamental rights exist: the right of eminent domain in all the people, and the right of private property in each. These great rights exist over and above, and independent of all human conventions, written and unwritten.1 1 Proprietors of the Spring Grove Cemetery v. Cincinnati, Hamilton & Dayton R.R. Co., 1 Ohio Dec. Reprint 316 (Ohio Super. Ct. 1849), rev’d on other grounds, 1 Ohio Dec. Reprints 343 (Ohio 1850) (quoted in City of Norwood v. Horney, 110 Ohio St. 3d 353, 361, 2006 Ohio 3799, at *P*33, 853 N.E.2d 1115, 1127 (2006)). 1-3 A. HISTORICAL EVOLUTION OF THE POWER [A]mendment.”8 It is the right of the people or govern- 9 OF EMINENT DOMAIN ment to take property for public use. The right to take private property for a public use is usually vested in Eminent domain is an “exercise of the inherent both federal and state governments even if the purpose power of the sovereign…to condemn private property ultimately is to transfer property to private entities.10 for public use, and to appropriate ownership and pos- Although eminent domain is an inherent power of the session thereof for such use upon paying the owner a sovereign, the power remains dormant until the legisla- 2 due compensation.” As noted in a 2006 report by the ture speaks,11 and specific entities such as municipal General Accounting Office (GAO) to Congress, “[a]n corporations do not have inherent authority to delegate inherent right of sovereignty, eminent domain is a gov- the power of eminent domain.12 ernment’s power to take private property for a public The government’s power to take private property 3 use while fairly compensating the property owner.” “predates modern constitutional principles” and at the However, the power of “eminent domain engenders time of the adoption of the United States (U.S.) Consti- great debate. Its use, though necessary, is fraught with tution “was so familiar that ‘[i]ts existence…in the great economic, social, and legal implications for the grantee of that power [was] not to be questioned.’”13 In- 4 individual and the community.” Moreover, “property deed, “[t]he Founders recognized the necessity of the rights are integral aspects of our theory of democracy takings power and expressly incorporated it into the 5 and notions of liberty.” However, as the GAO Report Fifth Amendment to the United States Constitution.”14 found, “[d]espite its fundamental significance, little is However, when America had an abundance of un- known about the practice or extent of the use of emi- claimed land and there was limited government activ- nent domain in the United States. The matter of emi- ity, there was “little controversy over the use of eminent nent domain remains largely at the level of state and domain to develop land and natural resources.”15 Even- local governments that, in turn, delegate this power to tually, however, “[t]he indisputable right of the United 6 their agencies or designated authorities.” States to exercise the power of eminent domain by pro- The right of eminent domain thus is an inalienable ceedings brought in the federal courts was clearly rec- 7 right of government; it is inherent in the sovereign. ognized and definitely asserted for the first time in 1875 “The power of eminent domain exists as an attribute of in…Kohl v. United States….”16 sovereignty—not granted, but limited by the [F]ifth Eminent domain as a phrase “was completely un- known at common law,” but the sovereign power to take property was recognized “in several of the original state constitutions” without mentioning the term eminent 17 domain. Colonial governments and later the state and 2 R.I. Econ. Devel. Corp. v. The Parking Co., L.P., 892 A.2d local governments had financial resources in the form of 87, 96 (R.I. 2006) (citing 26 AM. JUR. 2D Eminent Domain § 2 undeveloped land rather than revenue from taxes. Land at, 418 (2004)), appeal after remand, 2006 R.I. LEXIS 157 (R.I. for internal improvements such as wharves, dams, or Oct. 24, 2006). See also Zografos v. Mayor & City Council, 884 bridges was obtained frequently by reservation of public A.2d 770, 778, 165 Md. App. 80, 94 (Eminent domain is the “inherent power of a governmental entity to take privately owned property…and convert it to public use.”) (quoting J.L. 8 Note, John H. Leavitt, Hodel v. Irving: The Supreme Mathews, Inc. v. MD-National Capital Park and Planning Court’s Emerging Taking Analysis—A Question of How Many Comm’n, 368 Md. 71, 87, 792 A.2d 288 (2002) (quoting BLACK’S Pumpkin Seeds Per Acre, 18 ENVTL. L. 597, 634 (1988). LAW DICTIONARY 541 (7th ed.) (County Comm’rs of Frederick 9 Dep’t of Highways v. Sw. Elec. Power Co., 243 La. 564, 145 County v. Schrodel, 577 A.2d 39, 320 Md. 202, 215 (1990) (in- So. 2d 312 (1962). ternal quotation marks omitted)). C.f. Loretto v. Teleprompter 10 NJ Housing & Mortgage Finance Co., 215 N.J. Super. Manhattan CATV Corp., 458 U.S. 419, 439, 102 S. Ct. 3164, 318, 521 A.2d 1307 (1987). 3178, 73 L. Ed. 2d 868, 885 (1982) (stating that “the govern- 11 ment does not have unlimited power to redefine property Dep’t of Transp. v. Stapleton, 97 P.3d 938 (Colo. 2004); rights”). City of Midwest City v. House of Realty, Inc., 2004 OK 56, at 3 *P19, 100 P.3d 678, 685 (2004). GOVERNMENT ACCOUNTABILITY OFFICE, EMINENT 12 Shapiro v. Bd. of Dirs., 134 Cal. App. 4th 170, 176, 35 Cal. DOMAIN: INFORMATION ABOUT ITS USES AND EFFECT ON Rptr. 3d 826, 829 (2005) (citing City of Sierra Madre v. Supe- PROPERTY OWNERS AND COMMUNITIES IS LIMITED 44 (Nov. 2006), hereinafter cited as the “GAO Report,” available at rior Court, 191 Cal. App. 2d 587, 590, 12 Cal. Rptr. 836 (1961)). 13 http://www.trb.org/news/blurb_detail.asp?id=7068. City of Norwood v. Horney, 110 Ohio St. 3d at 363–64, 4 City of Norwood v. Horney, 110 Ohio St. 3d 353, at 354– 2006 Ohio 3799, at *P39, 853 N.E.2d at 1129 (citations omit- 55, 2006 Ohio 3799, at *P3, 853 N.E.2d 1115, at 1122 (2006). ted). 14 5 Id. Id. at 362, 2006 Ohio 3799, at *P34, 853 N.E.2d at 1128. 15 Id. at 362, 2000 Ohio, etc., as is. Id. at 366, 2006 Ohio 3799, at *P45, 853 N.E.2d at 1132. 16 6 GAO Report, supra note 3, at 44. 1 NICHOLS ON EMINENT DOMAIN § 1.24[4], at 1-89-90 (cit- 7 ing Kohl v. United States, 91 U.S. 367, 23 L. Ed. 449 (1876)). Reg’l Transit Auth. v. Miller, 156 Wash. 2d 403, 128 P.3d 17 588 (2006); McCabe Petroleum Corp. v. Easement & Right-of- 1 NICHOLS ON EMINENT DOMAIN § 1.12[2], at 1-16. Way Across Twp., 320 Mont. 384, 87 P.3d 479 (2004). 1-4 rights in proprietary land grants and sales. Private do- ings.”22 Nevertheless, the courts’ broad interpretation of nations of land for public facilities also were common. the meaning of public use “eventually dominated and Legal rules and procedures were required to assure that became entrenched in early 20th century eminent do- property rights were adjusted equitably when private main jurisprudence.”23 parties built bridges, ponds, or dams for mills. National policy favored laws that facilitated the release of pri- B. CONSTITUTIONAL REQUIREMENT OF vate enterprise for economic development. COMPENSATION FOR THE EXERCISE OF A novel development of nineteenth century public policy EMINENT DOMAIN was the delegation of eminent domain to private enter- prises, generally in the field of communications and water As stated, the federal and state governments have power development. The power was particularly essential the right to condemn by virtue of their sovereignty. to completing the purchase of a right of way without hin- However, state and local governments’ power of emi- drance or blackmail by individual property owners. Re- nent domain is constrained not only by state constitu- sort to eminent domain might stretch promoters’ capital tions and statutory provisions but also by the Takings by saving them from paying high prices for land. Con- Clause of the Fifth Amendment to the U.S. Constitu- versely, whatever the courts’ vague formula meant in tion. The clause—“Nor shall private property be taken practice, they meant at least that the law deprived the for public use, without just compensation”—in the Fifth property owner of his ordinary right to set his own price; Amendment “is made applicable to the states by the neither the distinctive value of the property to the owner 24 nor to the taker should measure compensation, but some Fourteenth Amendment of the Constitution.” State figure ultimately set by a legal agency under a flexible constitutions grant the power both to states and their more or less objective measure of “fair market value.” The political subdivisions to exercise the power of eminent unfailing care with which promoters included the emi- domain. State statutes identify those entities within the nent domain privilege in any charter which they deemed state that are authorized to exercise the power.25 Al- of sufficient public interest to warrant it attests to the es- though the federal government and the states have the 18 timation in which the power was held.