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The History of Eminent Domain & the Fifth Amendment

On Behalf of | Mar 2, 2021 | Eminent Domain

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Examples of eminent domain can be found throughout recorded world history. In the United States, any discussion of how eminent domain law has developed here ordinarily begins with an examination of the Takings Clause of the Fifth Amendment. It says:

“nor shall private property be taken for public use, without just compensation.”

The Takings Clause both explicitly recognized the newly formed federal government’s eminent domain power and imposed two very important limitations on it. The first limitation is the public use requirement. Broadly speaking, public use is one that benefits the general public. The building or widening of a highway, acquiring land for a sports arena, and establishing a protected wildlife preserve are all common examples of how eminent domain is used to benefit the public as required by the Constitution. Private property can’t, however, be taken for public use unless the government pays just compensation to the property owner. This second limitation on the government’s eminent domain authority is generally understood to mean fair market value. The various methods by which fair market value is determined can be highly complex and often lead to protracted negotiation and litigation. The eminent domain language of Amendment 5 was first examined by the Supreme Court in 1876. In Kohl v. the United States, the Court recognized the Secretary of the Treasury’s right to acquire private land in Cincinnati as a precursor to building a courthouse, post office, and several other federal structures. Just over twenty years later the Supreme Court again acknowledged the legitimacy of the federal government’s eminent domain power in the case of the United States v. Gettysburg Electric Railroad Company (1896). The dispute arose out of the U.S. government’s decision to condemn land owned by a private railroad as a means of expanding the Gettysburg National Military Park. Writing for the Court, Justice Rufus Peckham said the government may use eminent domain “whenever it is necessary or appropriate to use the land in the execution of any of the powers granted to it by the constitution.” The cases of Kohl and the U.S. v. Gettysburg Railroad nicely illustrate the two main ways that eminent domain has historically been used in the United States. The first is to facilitate public infrastructure projects such as erecting buildings, establishing transportation networks, and acquiring land for the purpose of ensuring defense readiness. The second primary application of eminent domain involves preserving places of historical interest, protecting natural open spaces, and other projects that eschew development in favor of preserving America’s heritage for future generations.

Inverse Condemnation

Closely related to eminent domain is the concept of inverse condemnation. Whereas eminent domain is initiated by the government, inverse condemnation refers to a situation in which a property owner sues the government for taking or damaging its property interests without following the proper eminent domain procedures. Inverse condemnation actions typically arise out of government regulations that significantly limit the commercial value of your real property and/or business interests. In that scenario, a property or business owner may argue that regulation is so strict that a taking has, in effect, occurred.

About Palmieri, Hennessey & Leifer LLP

The above overview of eminent domain and the Fifth Amendment is brought to you by Palmieri, Hennessey & Leifer LLP – a highly reputable law firm in Irvine that specializes in eminent domain litigation and related land-use matters. Every California eminent domain lawyer on our team is a seasoned client advocate who is well-versed in all aspects of eminent domain law and litigation practices. Palmieri, Hennessey & Leifer has a long history of providing sophisticated legal counsel to a broad spectrum of property and business owners – including but not limited to business parks, office complexes, restaurant and drug store chains, hotels, and automotive dealerships. We have proudly obtained a number of multi-million-dollar settlements on behalf of our clients. If you are having an eminent domain issue and wish to explore your legal options, then consider contacting a California eminent domain lawyer at Palmieri, Hennessey & Leifer today. Either call us at 949-851-7388 or submit this online form.