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.

State Statutes for the State of Texas


(a) An entity with eminent domain authority that wants to acquire real property for a public use shall This section does not apply to acquisitions of real property for which an entity does not have eminent (a) An entity with eminent domain authority that wants to acquire real property for a public use must (a) If an entity with eminent domain authority wants to acquire real property for public use but is (a) A person from whom a real property interest is acquired by an entity through eminent domain for


(a) The authorization under this subchapter to purchase or exercise the power of eminent domain is not affected by the location of the real property, the location of the real property right, or the location PAYMENT FOR REAL PROPERTY ACQUIRED BY EMINENT DOMAIN. (a) If the department acquires real property through the exercise of the power of eminent domain, the


(c) Notwithstanding any other provision of this chapter, a district may not own or acquire real property by eminent domain or any other method unless the property is for a facility site or related infrastructure


(b) The county or municipality may exercise the right of eminent domain to condemn an interest in real property for the purposes described by Subsection (a).


(c) The board may not use the power of eminent domain to acquire real property that is dedicated to


(a) The commissioners court of a county may acquire by purchase or eminent domain any real property,


(b) The commissioners court may not acquire real property under Subsection (a) by eminent domain. (a) In exercising any power granted by this subchapter, a county may acquire real property and easements by the exercise of the power of eminent domain in accordance with Chapter 21, Property Code.


(2) a taxing unit acquired the real property for public use through eminent domain proceedings or voluntary

Federal Statutes

§ 277c. Agreements with political subdivisions; acquisition of lands

vested in and remain in such political subdivision; (b) to acquire by purchase, exercise of the power of eminent domain, or by donation, any real or personal property which may be necessary; (c) [1] to withdraw from

§ 1502. Initiation and development of projects; jurisdiction; acquisition of property; fees of architects, engineers, etc.

connection with any project developed or assisted by him, for the purposes of this subchapter, may acquire real or personal property or any interest therein by purchase, eminent domain, gift, lease or otherwise.

§ 4651. Uniform policy on real property acquisition practices

(8) If any interest in real property is to be acquired by exercise of the power of eminent domain, the

§ 144. Qualified small issue bond; qualified student loan bond; qualified redevelopment bond

designated blighted area— (i) the acquisition (by a governmental unit having the power to exercise eminent domain) of real property located in such area, (ii) the clearing and preparation for redevelopment