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Eminent domain is the act of taking private property for public use. Enumerated in the Fifth Amendment of the U.S. Constitution, it gives states and the federal government the right to seize property for public use in exchange for just compensation (based on fair market value for a piece of land). The concept of eminent domain is connected to the functionality of the government, because the government needs to acquire property for infrastructure and services like public schools, public utilities, parks, and transit operations.
Seven key court cases throughout the 19th and 20th centuries allowed the judiciary to define eminent domain. Most eminent domain challenges focus on whether the lands were taken for a purpose that qualifies as “public use” and whether the compensation provided was “just."
Kohl v. United States
Kohl v. United States (1875) was the first Supreme Court case to assess the federal government's eminent domain powers. The federal government seized a portion of the petitioner's lands without compensation for the purpose of building a post office, customs office, and other government facilities in Cincinnati, Ohio. The petitioners alleged that the court did not have jurisdiction, the government could not acquire the land without proper legislation, and that the government should accept an independent assessment of the value of the land before compensating.
In a decision delivered by Justice Strong, the court ruled in favor of the government. According to the majority opinion, eminent domain is a core and essential power afforded to the government through the Constitution. The government may develop legislation to further define eminent domain, but the legislation is not required in order to the use of the power.
In the majority opinion, Justice Strong wrote:
“If the right of eminent domain exists in the federal government, it is a right which may be exercised within the states, so far as is necessary to the enjoyment of the powers conferred upon it by the Constitution.”
United States v. Gettysburg Electric Railroad Company
In United States v. Gettysburg Electric Railroad Company (1896), Congress used eminent domain to condemn the Gettysburg Battlefield in Pennsylvania. The Gettysburg Railroad Company, who owned land in the condemned area, sued the government, alleging that the condemnation violated their Fifth Amendment right.
The majority ruled that as long as the railroad company was paid fair market value for the land, the condemnation was lawful. In terms of public use, Justice Peckham, on behalf of the majority wrote, “No narrow view of the character of this proposed use should be taken. Its national character and importance, we think, are plain.” Furthermore, the court held that the amount of land needed in any eminent domain seizure is for the legislature to determine, not the court.
Chicago, Burlington & Quincy Railroad Co. v. City of Chicago
Chicago, Burlington & Quincy Railroad Co. v. City of Chicago (1897) incorporated the Fifth Amendment takings clause using the Fourteenth Amendment. Prior to this case, states had used eminent domain powers un-regulated by the Fifth Amendment. This means that states may have seized property for public use without just compensation.
In the 1890s, the city of Chicago aimed to connect a stretch of road, even though it meant cutting through private property. The city condemned the land through a court petition and paid just compensation to the property owners. Quincy Railroad Corporation owned part of the condemned land and was awarded one dollar for the taking. The railroad appealed the judgment.
In a 7-1 decision delivered by Justice Harlan, the court ruled that the state could take land under eminent domain if the original owners were awarded just compensation. The taking of the Railroad Company's land had not deprived the company of its use. The street only bisected the railroad tracts and did not cause the tracts to be removed. Therefore, one dollar was just compensation for the taking.
Berman v. Parker
In 1945, Congress established the District of Columbia Redevelopment Land Agency to authorize the seizure of “blighted” housing districts for rebuilding. Berman owned a department store in the area slated for redevelopment and did not want his property to be seized along with the “blighted” area. In Berman v. Parker (1954), Berman sued on the basis that the District of Columbia Redevelopment Act and its seizure of his land violated his right to due process.
In a unanimous decision delivered by Justice Douglas, the court found that the seizure of Berman's property was not a violation of his Fifth Amendment right. The Fifth Amendment does not specify what the land must be used for outside of “public use." Congress has the power to decide what this use might be and the goal of turning the land into housing, specifically low-income housing, fit the general definition of the takings clause.
The majority opinion by Justice Douglas read:
“Once the question of the public purpose has been decided, the amount and character of land to be taken for the project and the need for a particular tract to complete the integrated plan rests in the discretion of the legislative branch.”
Penn Central Transportation v. New York City
Penn Central Transportation v. New York City (1978) asked the court to decide whether a Landmark Preservation Law, which restricted Penn Station from building a 50-story building above it, was constitutional. Penn Station argued that preventing the construction of the building amounted to an illegal taking of the airspace by the City of New York, violating the Fifth Amendment.
The court ruled in a 6-3 decision that the Landmarks Law was not a violation of the Fifth Amendment because restricting the construction of a 50-story building did not constitute a taking of the airspace. The Landmarks Law was more closely related to a zoning ordinance than eminent domain, and New York had a right to restrict construction in the public interest of protecting the “general welfare” of the surrounding area. Penn Central Transportation could not prove that New York had meaningfully “taken” the property simply because they had lowered the economic capacity and interfered with the property rights.
Hawaii Housing Authority v. Midkiff
Hawaii's Land Reform Act of 1967 sought to tackle the issue of unequal land ownership on the island. Only 72 private landowners possessed 47 percent of the land. Hawaii Housing Authority v. Midkiff (1984) asked the court to determine whether the state of Hawaii could enact a law that would use eminent domain to take lands from lessors (property owners) and redistribute them to lessees (property renters).
In a 7-1 decision, the court ruled that the Land Reform Act was constitutional. Hawaii sought to use eminent domain to prevent a concentration of private ownership, a purpose generally associated with good democratic governance. Additionally, the state legislature has just as much power to make this determination as Congress. The fact that the property was transferred from one private party to another did not defeat the public nature of the exchange.
Kelo v. City of New London
In Kelo v. City of New London (2005), the plaintiff, Kelo, sued the city of New London, Connecticut for seizing her property under eminent domain and transferring it to New London Development Corporation. Susette Kelo, along with other property owners in the area, had refused to sell their private property, and the city had condemned it to force the owners to accept just compensation. Kelo alleged that the seizure of her property was a violation of the “public use” element of the Fifth Amendment takings clause because the land would be used for economic development which is not solely public. Kelo's property was not “blighted” and it would be transferred to a private firm for economic development.
In a 5-4 decision delivered by Justice Stevens, the Court upheld aspects of its ruling in Berman v. Parker and Hawaii Housing Authority v. Midkiff. Redistributing the land was part of a detailed economic plan. The court ruled that this plan constituted a public use. Even though the transfer of land was from one private party to another, the goal of that transfer - economic development - served a definitive public purpose. In this case, the court further defined “public use” by explaining that it was not confined to literal usage by the public. Public use could mean public benefit or general welfare.
- Kohl v. United States, 91 U.S. 367 (1875).
- Kelo v. New London, 545 U.S. 469 (2005).
- United States v. Gettysburg Elec. Ry. Co., 160 U.S. 668 (1896).
- Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978).
- Hawaii Housing Auth. v. Midkiff, 467 U.S. 229 (1984).
- Berman v. Parker, 348 U.S. 26 (1954).
- Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226 (1897).
- Somin, Ilya. “The Story behind Kelo v. City of New London.” The Washington Post, The Washington Post, 29 May 2015, www.washingtonpost.com/news/volokh-conspiracy/wp/2015/05/29/the-story-behind-the-kelo-case-how-an-obscure-takings-case-came-to-shock-the-conscience-of-the-nation/?utm_term=.c6ecd7fb2fce.
- “History of the Federal Use of Eminent Domain.” The United States Department of Justice, 15 May 2015, www.justice.gov/enrd/history-federal-use-eminent-domain.
- “Constitutional Law. Federal Power of Eminent Domain.” The University of Chicago Law Review, vol. 7, no. 1, 1939, pp. 166-169. JSTOR, JSTOR, www.jstor.org/stable/1596535.
- “Annotation 14 - Fifth Amendment.” Findlaw, constitution.findlaw.com/amendment5/annotation14.html#f170.