Understanding Our Constitution - Part 11 - Eminent Domain

Eminent Domain is the right of a federal, state, or local government to seize private property for the purpose of constructing a public facility. As long as the homeowner is compensated at fair market value, they can seize this property. The most common uses of property taken by Eminent Domain are for public utilities, highways, and railroads. Other uses may be hospitals, schools, parks, or government office buildings.

Eminent domain first became law through the Fifth Amendment:

“No person shall...be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

The power of the government to take property has always existed in the United States, being an inherent attribute of sovereignty. The Fifth Amendment did not create the right to use the Eminent Domain power, it simply limited it to public use.

“Condemnation” is the term used to describe the formal act of transferring title from its private owner to the government. This should not be confused with the common use of the term - declaring a property unsuitable or uninhabitable. Usually, once a condemnation is filed, the only thing to determine is the amount of compensation for the property.

Eminent Domain may not be exercised unless the legislature has authorized its use by statutes that specify who may use it and for what purposes.

The private owner can challenge it on the grounds that it is not for a public use, has not been authorized by the legislature, or the proper procedures required by law have not been followed.

There are several types of takings which can occur through Eminent Domain:

Complete Taking - all property is appropriated.

Partial Taking - A part of a piece of property (e.g., a strip of land to expand a road) is appropriated. The owner should be compensated both for the value of the strip of land and for any effect that strip has on the value of the remaining property.

Temporary Taking - The property is appropriated for a limited time period. The property owner retains title and is compensated for any losses associated with the taking.

Easements and Rights Of Way - An easement is required over private land (e.g. power lines). The property owner may use the property so long as it doesn’t interfere with the easement.


On June 23, 2006, President Bush issued an Executive Order limiting the use of Eminent Domain - stating that it may not be used

” for the purpose of advancing the economic interest of private parties to be given ownership or use of the property taken.” (e.g. a Shopping Center)

As Executive Orders only effect those agencies in the Executive Branch and therefore, only land that would be seized by the federal government - sovereign states and local governments are not effected by this order.