Eminent Domain
The power of eminent domain -- the authority to take land for public use -- is a fundamental power of all governments in this country. There are countless occasions when a governmental entity must acquire a particular piece of property, for the use of the public, from a landowner who does not want to sell. This is where the provisions of the Fifth Amendment come into play.
The Fifth Amendment prohibition against the taking of "private property . . . for public use without just compensation" guarantees that citizens cannot have their land taken from them by the government without the payment of fair compensation. At the same time, the clause establishes in constitutional law the government's right to acquire such lands for roads and other public uses.
Eminent domain, known in Missouri as condemnation, is the process by which government acquires land at a price a jury finds fair. This power is not limited just to units of government. Public utilities, which perform public services, are also given the power to acquire easements for right-of-way by means of condemnation proceedings. The limitations placed on this power ensure that land will not be taken except for a public purpose, and only with just compensation.
Although this power to take private land for public use has been in place since the days of the Romans, the name for the procedure is more recent in origin. Hugo Grotius, a political philosopher, coined the phrase "eminent domain" in 1625.
The authors of the U. S. Constitution were most familiar with the political philosophers of the 17th century, and accepted the terminology. But rather than maintaining that the power of eminent domain was an extension of the alleged ownership of all the land by the sovereign, American theorists concluded that the power is based merely on the sovereignty of the state and its needs. The state does not own all of the land, and it therefore must compensate those from whom it takes land.
The origins of the condemnation hearings found in modern America can be traced, once again, to early England. There, one of the prerogatives of the king recognized by the common law was that of entering upon private property for the purpose of erecting defenses against the attacks of public enemies. Eventually, a procedure developed called the inquest of office, whereby there was an inquiry by a panel of jurors concerning any matter that entitled the king to possession of lands, especially for use in highways. In 1544, the corporation of the city of London was granted power by Parliament to enter upon and appropriate private of supplying the city with water, for the payment of compensation appointed by the Chancellor.
The first provision for the laying out of highways through the acquisition of private lands in the American colonies is found in Massachusetts in 1639. By 1757, no jury was used, but damages to be paid to the property holder were determined by a committee of five disinterested landholders.
When the American colonies became independent of Great Britain, each colony became a sovereign state with the general power of eminent domain. The U.S. government also enjoys this power. In 1875, the U. S. Supreme Court in Kohl v. United States recognized the right of the federal government to exercise the power of eminent domain by proceedings brought in federal court. The passage of the Declaration of Taking Act in 1931 established a procedure for the federal government’s exercise of the power of eminent domain.
Although the power of eminent domain is a natural right of the sovereign, the U. S. Constitution and the various state constitutions impose limitations upon the use of this power. Article I, Section 26 of the present Missouri Constitution states:
"That private property shall not be taken or damaged for public use without just compensation. Such compensation shall be determined by a jury or board of commissioners of not less than three freeholders." The document also makes provision for the payment of compensation to the property holder before his property is disturbed.
Eminent domain is a necessary power, one which insures that recalcitrant landowners will not be able to impede public progress. But the power is subject to legal restrictions, such as that found in the Fifth Amendment, which ensure that it may not be abused. The courts are available to all those who would maintain the government has abused this power with regard to their property. The existence of the power, its use and its limitations are all a part of our legal heritage.