Historically, sovereign governments have the power and authority to appropriate
land within their own borders for whatever purpose that they see fit.
The ability to do this is referred to as “eminent domain” and is effective nationwide. Because of this, the Fifth Amendment
to the United States Constitution places important limitations on the
power of eminent domain. The amendment reads, “nor shall private
property be taken for public use, without just compensation.” This
important piece of the amendment is known as the “takings” clause.
The “takings” clause includes two elements:
- Any taking by a government must be for a “public use”
- Any government that does take property, even for a public use, must fully
compensate the owner of the property
Two issues that often come up in eminent domain cases:
- What is considered public use?
- How is fair compensation defined?
Even if a property owner is given just compensation, a taking is invalid
if the property is not actually used for a public use. The public use
requirement has been broadly interpreted by courts. Public use does not
mean that the government has to allow the public to use the property.
Land can be seized by the government for a private person or entity as
long as the purpose behind the seizure is public in nature. Alleviating
unemployment, stimulating the local economy, and preserving scenery have
all been considered public use by courts.
“Just compensation” means that the government has to pay fair
market value for the property that is being taken. Fair market value is
not necessarily equal to the amount the property is actually worth. A
property’s market value can also be impacted by how it will be used
in the future.
Do you have more questions about eminent domain and fair compensation? Contact our San Diego team of eminent domain attorneys
to get started on your consultation today.