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EMINENT DOMAIN: Taking Property for Public Use Blackstone, in his Commentaries, recognizes three absolute rights possessed by all individuals in a free society: (1) the right of personal security; (2) the right of personal liberty; and (3) the right of private property. The right of the sovereign to acquire private property for public use is known as the right of Eminent Domain. It is the right of the state, as sovereign, to acquire for public use the private property of any individual within its domain. The taking of private property, however, requires a payment to the owner (Blackstone 1996).
This paper shall focus on the controversial topic of eminent domain and look at different examples that illustrate the pros and cons of the issue. For a start, the problem here is that the definition of public use has gradually expanded over time. In its desire to build roads and bridges, the government uses the power of eminent domain as a vehicle for urban development. (Jahr, Alfred 2). The issue of eminent domain becomes controversial because of the conflicts that arise between the principles of the state and the individual landowners. The individuals absolute right of property consists in the free use, enjoyment, and disposal of all his acquisitions, without any control or diminution, save only by the laws of the land. If, however, private property is required for public use, the legislature interposes and compels the individual to acquiesce in its disposal.
But, as Blackstone queries, how does it interpose and compel? Not by absolutely stripping the subject of his property in an arbitrary manner but by giving him full indemnification and equivalent for the injury thereby sustained. (Blackstone 1996). Historically, when the United States Constitution was ratified by several states, there was a provision preventing the federal government from taking private property without full indemnity to the owner. Thus, in the Fifth Amendment to the United States Constitution, there is the proviso that no person shall be deprived of life, liberty, or property, without due process of law, nor shall private property be taken for public use, without just compensation.
A similar limitation on the power of the state has been held to be contained in practically every state constitution (Jahr, Alfred 2). It is a fact that eminent domain, as the term connotes, is superior to all private rights. It is exercised by the sovereign for the common good and general welfare of all the citizens. It springs from the necessities of government and is a necessary and inseparable part of it.
It embraces and necessitates a taking or an appropriation of the private property of an owner, for public use upon payment of just compensation (Falk, Richard 1965). The taking of property by eminent domain is sometimes referred to as condemnation and the proceeding where the land taken is referred to as a condemnation proceeding. The state or its representative, to whom the power of eminent domain has been delegated, is called condemned, and the owner whose property is acquired is often referred to as the condemned. The term expropriation is often referred to as a taking of private property by the power of eminent domain exercised by a foreign power (Wortley, B. 1959). It has been universally recognized that no honest legislature or just government would be guilty of a moral piracy of failing to fulfill its duty of making just compensation where private property is taken for public use.
Looking at the picture more deeply, these limitations prescribed by the various state constitutions delimit certain boundaries which may not be crossed even by the state itself. The impact of the issue echoes on several sectors and people. Within those boundaries, the state acting through the department which exerts the legislative power may proceed at will, and the extent, method, and necessity of exercising the power to take private property for public use may not be interfered with by either of the other departments of government. (Jahr, Alfred 3). Yet, the Constitution does give local governments the right to condemn property through eminent domain for "public use" if the owner is compensated. However, recent findings reveal that both the state and the local governments have threatened to take more than 10, 000 homes and small businesses and turn them over to private developers.
This came from a report compiled by the Institute for Justice, a nonprofit advocacy law firm in Washington. (Marks, Alexandra 2003). Of course, the government maintains that they are creating more jobs and bigger tax bases to help the local economy. Still, this is labeled as an unconstitutional abuse. There are more at stake here according to Dana Berliner, a senior attorney at the Institute for Justice. "If that's all it takes, then your house or business can be up for grabs as soon as some private business interest takes a fancy to it. " (Marks, Alexandra 2003).
When one looks deeply at the issue, one sees that these local governments often use the power of eminent domain to open land for questionable uses. Some examples of these are putting up of casinos and other gambling places. Many claim that justification for jobs and tax revenue makes local governments have wide latitude to invoke eminent domain and seize private property, destroying lives and livelihoods in the process (Jahr, Alfred 3). Because of this, several foundations have been put up in order to be leading voices speaking out against eminent domain abuse at all levels of government (Jahr, Alfred 3).
Fresh from the minds of people is the case of Lakewood, Ohio. A whole neighborhood of colonial homes was recently deemed "blighted" because the backyards were too small and the homes didn't have two-car garages. What creates the furor here is that the city is turning the property over to private developers to build upscale condominiums and retail space. (Marks, Alexandra 2003). For example, people find it ludicrous that the village would simply be turned over to another private developer to build part of a Stop & Shop and parking lot where a certain Mr.
Brody's commercial buildings sat in the name of eminent domain (Marks, Alexandra 2003). Related to this is the case of Mount Vernon Mayor Ernest D. Davis who said that eminent domain is a very useful tool for cities to implement, if the economic development project benefits the greater public good. (Stableford, Joan). He states that there would be no takeover without considering all of the future benefits and impact upon the homeowner or business.
For these people, eminent domain must be used discriminatingly and with an eye for the good of everyone. This kind of thinking looks at the benefits of the issue for the majority (Stableford, Joan). Even the approach of local officials to landowners is critical here. For example, in the case of Sandford Boulevard, one of the more positive benefits of this issue is that this property was seized to build a 285, 000 -square-foot retail complex to house such big-box retailers as Target, TJ Max, and Best Buy.
When one looks at the end result, everyone agrees that it was worth it. The project has created thousands of jobs and generated $ 4 million in sales-tax revenues for the city (Stableford, Joan). Amicable settlements and peaceful communication characterized the process of this scenario. Local officials talked to the property owners who were ultimately convinced of the advantages that the move will render additional jobs to its citizens. Still, for some eminent domain is a last resort even if they admit that it is a valuable tool for economic development. An example of this is Richard Haley, director of communications for Yonkers.
He claims, It's a balancing act. You have to weigh a project for the greater good, such as the number of jobs it will create and its benefits. We have had a lot of economic development projects in the past five years, and I don't know of any instances where we have used eminent domain. I would have to do some research. (Stableford, Joan).
Thus, another negative aspect of the idea of an eminent domain is that it may not really be just and fair to the landowner. He may have already developed his land and the takeover may not compensate the time, effort and resources he has poured into it. Indeed, eminent domain always involves a taking of property and whenever there is a taking, eminent domain comes into play. But while the taking of property calls for just compensation and comes under the protection of the due process clause of the Constitution, there are other powers of the government which inflict injury on private property for which no redress is made. For example, private property may suffer damage and its value materially lessened by the erection in the immediate vicinity of some public buildings such as a jail, a hospital for contagious diseases, a sanitation dump, a sewage disposal plant, or a public morgue. Therefore, for these, and similar acts of damage, there is generally no compensation (Jahr, Alfred 6).
We are living in a rapidly changing world. Our fundamental law is not static. Quite the contrary, it is dynamic and progressive. The issue of eminent domain is a controversial topic that needs sound discretion. Therefore, officials must respond to the changing times, and the ideas of public use may even change its meaning in the future, redefining issues again for the benefit of the majority. WORKS CITED Blackstone, William and St.
George Tucker. Blackstone's Commentaries: With Notes of Reference to the Constitution and Laws, of the Federal Government of the United States, and of the Commonwealth of Virginia. 1996. The Law book Exchange. Ltd. Falk, Richard. The Aftermath of Sabattino.
Oceana Publications, Dobbs Ferry New York, 1965. Jahr, Alfred. Law of Eminent Domain. Valuation and Procedure. Clark Boardman, Comp. , Ltd. New York, NY. 1953.
Marks, Alexandra. A report claims that 10, 000 properties have been seized by cities for private developers. Eminent domain and private gain, Port Chester, New York, 2003. Accessed 6 September 2005 at: web Stableford, Joan.
Eminent domain a hot-button issue. Local officials debate pros and cons of seizing private land. Westchester County Business Journal. Accessed 6 September 2005 at: web Wortley, B. A. Expropriation in Public International Law, Cambridge University Press, 1959.
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Research essay sample on Eminent Domain Taking Property For Public Use
