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Real property

eminent domain

Eminent domain is government’s long-recognized, inherent right to take privately owned property—especially real property (land)—and convert it to public use—subject to providing the private landowner reasonable compensation for the taking.

Eminent domain is accomplished through the condemnation process—a process in which a court determines whether a piece of property may be taken by the government (condemned), subject to reasonable compensation being paid to the landowner.

Federal Government’s Power of Eminent Domain

The federal government’s power of eminent domain has long been used in the United States to acquire property for public use. Dating back to 1879, the U.S. Supreme Court explained that eminent domain “appertains to every independent government. It requires no constitutional recognition; it is an attribute of sovereignty.” Boom Co. v. Patterson, 98 U.S. 403, 406 (1879).

But the Fifth Amendment to the U.S. Constitution places some limitation on a state or federal government’s power of eminent domain and provides that “nor shall private property be taken for public use, without just compensation.” Thus, whenever the federal government acquires a property through eminent domain, it has a constitutional responsibility to justly compensate the property owner for the fair market value of the property. See Bauman v. Ross, 167 U.S. 548 (1897); Kirby Forest Industries, Inc. v. United States, 467 U.S. 1, 9-10 (1984).

The U.S. Supreme Court first examined federal eminent domain power in 1876 in Kohl v. United States, 91 U.S. 367 (1876). That case presented a landowner’s challenge to the power of the U.S. government to condemn land in Cincinnati, Ohio for use as a custom house and post office building. In that case, Justice William Strong called the authority of the federal government to take property for public uses “essential to its independent existence and perpetuity.”

The Supreme Court again acknowledged the existence of condemnation authority twenty years later in United States v. Gettysburg Electric Railroad Company, 160 U.S. 668 (1896). In that case, Congress wanted to acquire land to preserve the site of the Gettysburg Battlefield in Pennsylvania.

The railroad company owned some of the property in question and challenged the government’s taking of the property by eminent domain. The U.S. Supreme Court upheld the federal government’s taking of the property and stated that the government has the power to condemn property “whenever it is necessary or appropriate to use the land in the execution of any of the powers granted to it by the constitution.”

Eminent domain has also been used by the federal government to establish public parks (Shoemaker v. United States, 147 U.S. 282 (1893); facilitate transportation; supply water; construct public buildings; and aid in defense readiness.

And early federal court cases condemned property for construction of public buildings (Kohl v. United States) and aqueducts to provide cities with drinking water (United States v. Great Falls Manufacturing Company, 112 U.S. 645 (1884); for maintenance of navigable waters (United States v. Chandler-Dunbar Co., 229 U.S. 53 (1913); and for the production of war materials (Sharp v. United States, 191 U.S. 341 (1903).

State Government Power of Eminent Domain

State governments also use their eminent domain powers to take private property for public uses such as roads, highways, and utility lines. And in a landmark case—Kelo v. City of New London—the U.S. Supreme Court upheld the city of New London, Connecticut’s use of eminent domain to take private property from a landowner and transfer it to another private landowner for the purpose of furthering economic development—finding the furthering of economic development a sufficient public use under the takings clause of the Fifth Amendment to the U.S. Constitution.

State laws governing eminent domain powers of state governments vary from state to state and are often located in a state’s statutes and in its constitution.

In Texas, eminent domain is the power of the government to take private property for public use, with the requirement to provide just compensation to the property owner. This power is recognized at both the federal and state levels. The Fifth Amendment to the U.S. Constitution limits the exercise of eminent domain by requiring that the government only take private property for 'public use' and with 'just compensation.' In Texas, eminent domain proceedings are governed by state statutes, which outline the process for condemnation and the rights of property owners. The Texas Constitution also addresses eminent domain. Notably, after the U.S. Supreme Court case Kelo v. City of New London, which allowed for the taking of private property for economic development purposes, Texas passed legislation to restrict the use of eminent domain for economic development and to strengthen property owner protections. Texas law requires that the government or entity seeking to use eminent domain must make a bona fide offer to purchase the property before proceeding with condemnation and must follow specific procedural requirements to ensure the property owner's rights are protected.

Legal articles related to this topic

Understanding Eminent Domain and Condemnation
Eminent domain is the power of the government to take private property for public use, based on the Fifth Amendment, which implies that the government can seize private property, with “just compensation.”