Eminent domain is the power of a government to seize private property for public purposes in exchange for payment at fair prices. A variety of property rights such as land and water rights is subject to eminent domain. Eminent domain is an area that seriously challenges the court. This is because many private owners of property complain terribly much about this government right. They also begin initiating actions against the government.
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History of eminent domain
This idea of eminent domain did not start now. It still existed since biblical times. For example, when King Ahab offered Naboth compensation for his vineyard. In 1789, France was able to recognise private property owner’s compensation for taken property. Acknowledging eminent domain in the Fifth Amendment into the constitution occurs after this amendment. Just compensation is a requirement so as to ease financial burdens incurred by the property owners and for the benefit of the public (Bradley 96).
Elements of eminent domain
For a government to exercise this power of eminent domain, it must prove that the four elements set in the Fifth Amendment are present. They include: private property, must be taken, for public use and with just compensation.
This element requires the property taken to be private. Private property includes land, option, stock, and other items.
It refers to taking physical property as well as taking property through reducing its value. The cause for the reduction of the value of property is due to problems like noise, accessibility, and other agents. Some property rights get protection from the constitution. For example, water rights: changing of land from the waterfront to inland property through constructing highways, and roads leads to the owner receiving compensation for the loss of waterfront.
Reasonable, and ordinarily use of space above private land is another property that receives constitutional protection. For example, aircraft flights above a privately owned land, that seriously interfere with the property that the owner use results to taking. Compensation only happens if the flights are too low and extremely frequent that they directly interfere with the owner’s property and enjoyment.
Publication of plans and laying out public improvements like streets and highways are actions by the government that the court do not consider taking. Regulation of property has not been traditionally recognised by the court as taking. Regulating property leads to restricting its usage by the owner and may violate him or her rights. The state uses police power to control use of the private property in order to implement regulation of property.
This is the third element. It requires that the property taken to be beneficial to the public rather than individuals. Therefore, the court determines if the property taken was to be used to benefit the general public. To determine whether property taken is for public use, the court determines whether the largest portion of the property is in use by the public. Public use, therefore, is an element that is up to seeing the aim of taking private property; if the property serves the public or specific individuals.
This element states that the amount of compensation given to property damaged should be acceptable to both the private owner and to the public. The court emphasises on the right to the private owner eminent domain proceedings. In this case, the owner does not initiate the action; it brought to her or him since the public is the one that requires land for use (Epstein 267). The proceedings become a burden to the owner.
Fair market value is the measure of damage of the property taken for public use. Assessing of the value of real property is according to how significant it will be to the public. Elements to consider are history of an area, adaptability of the land for future constructions, and the intended use of the property or land. Measuring the amount of compensation should be corresponding to the owner’s loss rather than the condemner’s gain. Also, the owner’s compensation should be equal to his/her financial status before the taking of property took place.
The government or the state initiates them to commit private property to public. The procedure of condemnation has two stages: the one relating to the acquisition of property, and relating to fixation of compensation for the property owner. The state requires special procedures for some cases like when constructing a highway, property taken for a street, a canal, or a waterway. The aim of condemnation proceedings is to protect the rights of landowners.
It ensures that compensation occurs adequately. Once proceedings start, it is the duty of the landowner to prove that he had a right to compensation. People believe condemnation proceedings as an adversary although the court gives a view that they are not. It states that it is just a mere act of filling the action to confer possession by the state. Further condemnation proceedings are considered administrative when the executive body conducts it.
Bradley, Amanda A. Eminent domain. Eau Claire, WI: Lorman Education Services, 2007. Print.
Epstein, Richard Allen. Takings: private property and the power of eminent domain. Cambridge, Mass: Harvard University Press, 1985. Print