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Common Reasons for Eminent Domain Litigation

| Apr 30, 2021 | Eminent Domain

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It generally isn’t until many of us are personally affected by eminent domain that we dedicate much thought to the subject. The prospect of losing a home, farm, or a piece of commercial property through an eminent domain can be a frightening and confusing experience to have to go through. In the United States, taking private property through eminent domain is allowed only if two conditions are met. First, the project must be for public use. And second, the governmental body that is taking the property must provide just compensation to the property owner. The “public use” and “just compensation” requirements stem directly from the Fifth Amendment of the United States Constitution and have generated an enormous volume of legal interpretation.

Defining just what constitutes a valid public use is relatively straightforward in many eminent domain cases but surprisingly difficult in others. The following information is provided courtesy of a California eminent domain lawyer at Palmieri, Hennessey & Leifer LLP and is a helpful overview of how eminent domain can be used in this country within the confines of the Fifth Amendment.

Infrastructure & Public Works

The government’s power of eminent domain has always been used to acquire private property that can subsequently be used by the public directly. Traditionally used to facilitate the establishment of roads, railways, and navigable waterways, eminent domain has also long been used for the purpose of constructing public buildings, schools, military bases, schools, libraries, hospitals, police and fire stations, and the like. There is little debating that infrastructure and public works projects such as these are enormously beneficial to the public and are exactly the types of public uses that the writers of the Fifth Amendment anticipated.


A second broad category of public use that many Americans have direct experience with is the utility easement. A utility easement gives one or more utility companies the legal right to access certain parts of your property. For either installing or maintaining certain utility technologies. These include electrical lines and poles, gas lines, water, sewer, etc.

Urban Blight

In Berman v. Parker (1954), the U.S. Supreme Court delivered an expansive interpretation of the Fifth Amendment’s public use requirement. The Court voted unanimously in holding that private property could be taken for a public purpose, so long as the just compensation requirement was also satisfied. The case arose out of an effort by Congress to address large areas of urban blight in the District of Columbia.

Economic Development

The central holding of Burman – that transferring property from one private owner to another is allowed so long as it conforms with a valid plan to address urban blight – was affirmed in Kelo v. New London, a 2005 Supreme Court decision. Kelo stands for the proposition that transferring property between private owners in furtherance of economic development is a permissible public use under the Fifth Amendment. Following this decision, many states passed legislation specifically prohibiting the type of taking that Kelo allowed.

Contact Palmieri, Hennessey & Leifer LLP

Being notified that you could lose property through eminent domain is never a welcome development. But, you do have rights. A California eminent domain lawyer from Palmieri, Hennessey & Leifer in Irvine will be pleased to speak with you about your legal options during a complimentary consultation. Our highly experienced attorneys have handled hundreds of eminent domain cases in California and have achieved many multi-million-dollar court verdicts and settlements.

To schedule a consultation, contact us or call our California eminent domain law firm at 949-851-7388.