|
Eminent
domain
Eminent domain (US), compulsory purchase (United
Kingdom, New Zealand, Republic of Ireland), compulsory acquisition
(Australia) or expropriation (Canada, South Africa) in common law
legal systems is the lawful power of the state to expropriate private
property without the owner's consent, either for its own use or
on behalf of a third party. 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. 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.
Governments most commonly use the power of
eminent domain when the acquisition of real property is necessary
for the completion of a public project such as a road, and the owner
of the required property is unwilling to negotiate a price for its
sale. In many jurisdictions the power of eminent domain is tempered
with a right that just compensation be made for the appropriation.
Some coined the term expropriation to refer
to "appropriation" under eminent domain law, and may especially
be used with regard to cases where no compensation is made for the
confiscated property. Examples include the 1960 Cuban expropriation
of property held by U.S. citizens, following a breakdown in economic
and diplomatic relations between the Eisenhower Administration and
the Cuban government under Fidel Castro. U.S. nationals and corporations
held vast amounts of Cuba's prime real-estate. Cuban authorities
offered just compensation for US properties, as they had successfully
done for Spanish, British and French properties when they nationalized
private property in Cuba, for the common good. However, U.S. authorities
refused, adhering to the notion that those properties are still
privately owned by U.S. interests forty five years later. This is
in direct contrast with recent rulings by the US Supreme Court which
allows a corporation to displace a private citizen from his/her
realty, if the corporate development is considered to be in the
best interest of the municipality.
The term "condemnation" is used to
describe the act of a government exercising its authority of eminent
domain. It is not to be confused with the term of the same name
that describes the legal process whereby real property, generally
a building, is deemed legally unfit for habitation due to its physical
defects. Condemnation via eminent domain indicates the government
is taking the property; usually, the only thing that remains to
be decided is the amount of just compensation. Condemnation of buildings
on grounds of health and safety hazards or gross zoning violation
usually does not deprive the owner of the property condemned but
requires the owner to rectify the offending situation.
The exercise of eminent domain is not limited
merely to real property. Governments may also condemn the value
in a contract such as a franchise agreement (which is why many franchise
agreements will stipulate that in condemnation proceedings, the
franchise itself has no value).
Contents
* 1 Origins
* 2 Allodial vs Feodal Title
* 3 United States
Origins
The power of eminent domain in English law
derives from the form of real property. Many landowners assume that
their property right is absolute under the law, but this is rarely
the case. Instead, a county or other authority has created the property
in fee simple, a concept that derives from feudal fiefs. The same
authority may void (or condemn) the fee and seize the land, as when
a landowner fails to pay property tax. According to William Blackstone,
"The reason of originally granting out
this complicated kind of interest, so that the same man shall, with
regard to the same land, be at one and the same time tenant in fee-simple
and also tenant at the lord's will, seems to have arisen from the
nature of villenage tenure. ... Though they were willing to enlarge
the interest of their villeins, by granting them estates which might
endure for their lives, or sometimes by descendible to their issue,
yet did not care to manumit them entirely; and for that reason it
seems to have been contrived, that a power of resumption at the
will of the lord, should be annexed to these grants, whereby the
tenants were still kept in a state of villenage, and no freehold
at all was conveyed to them in their respective lands."
English-speaking countries that never had the
feudal system have perpetuated the system of fee-simple property,
including the power of eminent domain, for legal continuity, primarily
because, as former colonies of the British Empire, their land were
at one time conquered by the British monarchy, giving the monarchy
Allodial Title to that land.
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
occationally 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 owners 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." Most courts have used "just
compensation" to be the fair market value of the condemned
property. Over the years the definition of "public use"
has expanded to include economic development plans which use eminent
domain seizures to enable commercial development for the purpose
of improving the community. [1] Critics contend this perverts the
intent of eminent domain law and damages personal property rights.
The current Supreme Court understanding dates
back to Justice O'Connor's Hawaii Housing Authority v. Midkiff,
467 U.S. 229 (1984)[2] decision. Supporters contend that it is necessary
to the improvement of communities in many situations in which transactions
costs will prevent private parties from reaching efficient use of
land. This was generally affirmed by the Susette Kelo, et al. v.
City of New London, Connecticut, et al., 125 S. Ct. 2655 (2005)[3],
more commonly Kelo v. City of New London decision, however the justices
recognised that the several states have the authority to pass statutes
or state constitutional amendments further restricting eminent domain
if they so choose. 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. Conversely, some other communities have taken Kelo as a
license to seize at will.
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 [4], 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 1950's
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. Its use has until recently been almost
totally used for such public works, additionally including ports
and airports and government complexes nationwide.
The abuses of the exercise of these powers
in the past have led to substantial safeguards to the public today,
including extensive 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 "taken". 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
displacees. 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, local highways and other such improvements.
The extensive use of eminent domain for such purposes as economic
development are currently under attack in many jurisdictions and
a rush to pass state statutes to limit this use is being contemplated
in more than 30 states as this is being written in December 2005.
Governor Richardson of New Mexico became the first governor to veto
eminent domain reform legislation resulting from this recent surge
in public interest.[5]
|
