Eminent domain - History

Eminent domain - History

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Eminent domain in the United States

Eminent domain in the United States refers to the power of a state or the federal government to take private property for public use while requiring "just" compensation to be given to the original owner. It can be legislatively delegated by the state to municipalities, government subdivisions, or even to private persons or corporations, when they are authorized to exercise the functions of public character. [1]

Property taken by eminent domain may be for government use or by delegation to third parties, who will devote it to public or civic use or, in some cases, to economic development. The most common uses are for government buildings and other facilities, public utilities, highways and railroads. However, it may also be taken for reasons of public safety, as in the case of Centralia, Pennsylvania, where land was taken due to an underground mine fire. [2] Some jurisdictions require that the condemnor make an offer to purchase the subject property, before resorting to the use of eminent domain. [3]

Kohl v. United States

Kohl v. United States (1875) was the first U.S. Supreme Court case to assess the federal government’s eminent domain powers. The government seized a portion of the petitioner’s lands without compensation for the purpose of building a post office, customs office, and other government facilities in Cincinnati, Ohio. The petitioners alleged that the court did not have jurisdiction, the government could not acquire the land without proper legislation, and that the government should accept an independent assessment of the land's value before compensating.

In a decision delivered by Justice Strong, the court ruled in favor of the government. According to the majority opinion, eminent domain is a core and essential power afforded to the government through the Constitution. The government may develop legislation to further define eminent domain, but the legislation is not required to make use of the power.

In the majority opinion, Justice Strong wrote:

Interstates, Burning Farms & Eminent Domain: Remembering Romaine Tenney

Fifty-five years ago, farmer Romaine Tenney set fire to his barns and farmhouse, with himself inside, after his land was seized by the state to make way for Interstate 91. Now Vermont is planning a permanent memorial to the Ascutney farmer. Vermont Edition spoke with authors and historians about how we remember Tenney and other farmers forced to sell their farms for the sake of development.

Joining the conversation about Tenney and understanding this history were author and NVU-Lyndon professor Paul Searls, and writer Howard Mansfield, who chronicled Tenney's resistance to the interstate and his final moments in his 2013 article I Will Not Leave: Romaine Tenney Loved His Vermont Farm To Death. The story is also collected in his latest book, The Habit of Turning the World Upside Down: Our Belief in Property and the Cost of That Belief, which looks at issues surrounding eminent domain and property in America.

Born in 1900, Romaine Tenney grew up as one of nine children on the 75 acres his family bought in Ascutney in 1892. His father died when Tenney was 14, and after that, Tenney helped his mother operate their small dairy. He milked between 15 and 25 cows and cared for cats, dogs and horses, too. Other than when he served in World War II, Tenney never really left the land he was born on.

According to writer Howard Mansfield, Tenney was “someone who just loved to farm the way he farmed.” He never got electricity or a car, preferred to cut hay with his horses instead of tractors and continued milking his cows by hand.

But while Tenney stuck to the old ways, Vermont was changing all around him between the 1950s and 1960s.

“It’s kind of like a twilight period between what Vermont had been and the uncertainty of what it would become,” said author and NVU-Lyndon professor Paul Searls. “The loss of farms of course was extraordinary: in 1945 there were over 26,000 farms. By 1964, there were about 9,200.”

The interstate highways came, too, and Interstate 91 was plotted to go right through Tenney’s land. For months, he resisted buy-out offers from the state for his land. In the end, his home and possessions were ultimately seized through eminent domain.

On the night of Sept. 11, 1964, just hours after sheriff’s deputies acted on a court order to empty his barns of tools and other items, the Ascutney farmer released his animals, barricaded himself inside his farmhouse, and burned everything: the house, the sheds and the barns. It was later determined he ultimately died from a self-inflicted gunshot wound before the flames claimed him.

Rod Spaulding, a lifelong Weathersfield farmer and resident, was among the volunteer firefighters to respond to the scene.

“We walked in, and there was a door ahead of us, and we tried to get it open, but it apparently was nailed shut from the inside, ‘cause we could not open it,” he said. “We didn’t have any air packs at the time like everybody does now, and we had to get out to save ourselves.”

Spaulding added that Tenney’s dog was “going crazy” and seemed to know where Tenney was.

“It was a sad, sad thing,” he said.

Today, a maple tree that has long stood on what was once Tenney’s farm, along the southbound lanes of I-91 at Exit 8, is dying. The Vermont Agency of Transportation hired a certified arborist to study the tree, and the final determination was that it was mostly hollow and structurally unsound.

Kyle Obenauer, a historic preservation specialist with VTrans, said safety is something state transportation officials take seriously. He added that due to its proximity to the highway park and ride, as well as the frequency of big limbs falling down, the tree must be removed.

At the same time, Obenauer said the state recognizes the importance of the tree as a kind of living memorial to Romaine Tenney. A permanent historical marker is planned for the site, as well as a yet-to-be-defined way to keep and repurpose the wood from the tree.

VTrans held a meeting in Ascutney Tuesday evening to gather input on how to memorialize both Tenney and the impact constructing Interstate 91 had on Vermonters. Brandon Tenney, Romaine’s nephew, expressed frustration that community members weren’t consulted sooner.

He suggested the state should trim the dangerous limbs off the tree and then leave it up for a little longer while negotiating the memorial.

“It’s the history behind it: how Uncle Romaine stood his ground against the state,” Tenney said. “It’s almost like history repeating itself — they’re gonna do what they wanna do. Day late and a dollar short.”

Both authors Mansfield and Searls point to Romaine Tenney’s story as a symbol of the ambivalence that accompanies progress, including regret over the arrival of the industrial world in rural landscapes.

“Vermonters wanted on the whole to have the highway built of course — they knew it was a necessity,” Searls said. “But there’s always that feeling in Vermont about feeling very melancholy about what you’re losing.”

Mansfield said Tenney was that farmer by the road tourists used to stop and talk to as they sought out a specific kind of Vermont experience.

“Romaine himself, personally, he never went to town meeting, he didn’t write letters to the editor, he didn’t stand up and protest,” he said. “He was just living his life — and history, or the world, came to his doorstep, which is the way it happens all the time.”

As the world continues to modernize, Searls said the spirit of Tenney’s protest resonates today.

“In considering the concerns a lot of people have about climate change, that I think puts the concept of progress in a completely different context from the 1960s, when he took a stand,” Searls said. “Doing things simpler and on a smaller scale, a lot of people think is a necessity. So those kinds of voices are more important than they’ve ever been.”

What Are The Phases of Eminent Domain?

Eminent domain cases have two phases: 1) the right to take phase is the first one, and 2) the just compensation, or damages, phase is the second one. Everything discussed in this overview up to this point has addressed the first phase. In cases where the condemning authority initiates (declares) the taking, the first phase involves determining whether the condemning authority’s project satisfies the public use/purpose requirement. In an inverse condemnation case, the first phase involves determining whether a taking actually occurred. In all eminent domain cases the second phase does not begin until the first phase is completed.

Declared taking cases represent nearly the entire universe of eminent domain cases. The tiny balance of the universe of eminent domain cases involves inverse condemnation. Since the public use for most declared takings (roads, public buildings, etc.) has been established for a long time, the right to take phase in those cases is perfunctory, i.e. the condemning authority merely makes the required statutory record. There is no dispute, and they are unopposed. In inverse condemnation cases, the right to take is THE issue, but the extremely low number of inverse condemnation cases means that, overall, the right to take issue is unchallenged in the vast majority of all eminent domain cases. Consequently there are very few cases where the right to take is a litigated issue.

What is the History Behind the Government’s Power Via Eminent Domain?

It is important to understand the history behind certain laws and regulations that exist in the United States. This is especially the case if you believe or are dealing with a situation where such laws and regulations are going to have a direct impact on you and your current way of life. Eminent domain is a power of the federal government that has been around for quite some time, since before the 1900s. It has a history that is surrounded by controversy and instances where property owners simply had what they owned obtained by the government, all with the intent of using said property for the betterment of the public.

So where exactly did eminent domain all begin? What is its history and how has it evolved to the state that it is currently in today? Going back a bit it is easy to see why federal eminent domain power has been so controversial. Essentially what the power does is to allow the federal government to do nothing more than determine your property is needed for public use. Once they can make this determination with whatever rationale they come up with, they can then proceed to try and obtain your property from you. Let’s take a closer look at the history behind this government power.

Going Back in Time With Eminent Domain

You won’t find the power of eminent domain laid out in the U.S. Constitution or anything like that. Eminent domain is a power that is independent as it pertains to the government. It is an attribute of sovereignty. The one mention of eminent domain in the U.S. Constitution is found in the Fifth Amendment. The amendment reads that “nor shall private property be taken for public use, without just compensation.” This is where the idea of fair market value comes into play with eminent domain when the government works to take the property that you own from you.

Federal eminent domain power was first seen in the late 1800s in the United States. It was a case in 1876, Kohl v. United States when an owner of a piece of land in Cincinnati, Ohio tried to fight the government over the taking of his land. The government wanted the land in order to open up both a post office building and a custom house. The U.S. Supreme Court ruled in favor of the government and states that the power of eminent domain was necessary in order for the government to be independent and to exist with perpetuity.

The Application of Eminent Domain

The majority of eminent domain cases have circulated around the need for the government to try and improve transportation across the United States. In Florida, for example, eminent domain cases have been brought forward in order to try and obtain land for highways, railroads, and so on. The reality with densely populated areas is that there is not much left in terms of actual public land. If the government needs to extend a highway or something like that, chances are they may need some private property in order to accomplish that.

Outside of the need for land in order to expand and improve transportation, eminent domain can also be employed by the government in order to do a few other things. This could include trying to expand the supply of water across the state of Florida and abroad, as well as construct buildings for public, improve defenses of our borders, and so on.

The power of eminent domain is pretty vast in terms of what the federal and even state governments can do. As long as they can prove that the property, whether it be tangible or intangible, is needed for the betterment of the public, they can proceed to obtain that property. The only big requirement on the part of the government outside of that is to provide fair market value.

Eminent domain has been around now for well over one-hundred years in the United States and it is not going away. If you are a property owner in any way, which just about all of us are, it is important to know and understand the history behind the power that the government holds. If you are ever to face such a claim of eminent domain, an expert attorney in the field in Florida can also be of great assistance. Knowledge is very powerful when dealing with the government and eminent domain.

Top Ten Worst Abuses of Eminent Domain Spotlighted in New Report


Related Report

Press Release | March 4, 2002
Matt Powers
Reporting and Communications Manager

Washington, D.C.—A coalition of the nation’s leading legal advocates against the abuse of eminent domain and individual property owners whose rights are being violated released a report today that spotlights the 10 most egregious instances of government condemnations for private benefit. “Government Theft: The Top 10 Abuses of Eminent Domain, 1998-2002,” demonstrates both the human cost of the practice and the nationwide scope of the issue.

The worst abuses were found in 10 states: Connecticut, Florida, Illinois, Kansas, Massachusetts, Mississippi, Nevada, New York, Ohio and Texas. In each instance, the government, often acting in concert with a private development corporation or other private interests, condemned homes or small businesses so they could be transferred to another party for its purely private benefit.

Despite explicit limitations in the U.S. Constitution and nearly every state constitution that allow condemnations only for public use—such as for public buildings—for the past 50 years, unrestrained local and state governments across the nation have taken property for private businesses in the name of “economic development.” Homes and businesses have been bulldozed, replaced by newer businesses and more upscale homes owned not by the public, but by private, politically powerful individuals and corporations.

“Sadly, these ten cases are just the tip of the iceberg,” said Dana Berliner, senior attorney at the Institute for Justice and author of the report. “More than 100 cases have come to our attention, and we hear about new private condemnations every week, but many more either go unreported or are settled by property owners who understandably cave in to the enormous threat of condemnation.”

In 1998, the head of the Council for Urban Economic Development estimated that cities undertake roughly 80 projects per year for private businesses that involve condemnations, and each project could involve more than one condemnation.

Among the examples cited in the report: more than 1,700 buildings in Riviera Beach, Fla., are threatened with condemnation, potentially displacing more than 5,000 residents for private commercial and industrial development. In New London, Conn., seven homeowners in the historic Fort Trumbull neighborhood have been fighting for three years to save their land from condemnation. In that case, the City of New London actually delegated its awesome power of eminent domain to a private organization, the New London Development Corporation, which is carrying out the condemnations to make way for private office space and other unknown projects to enhance the neighboring plant of pharmaceutical giant Pfizer.

“Our cities and states have become like real estate speculators, securing land owned by their own citizens on behalf of politically connected private interests,” added Scott Bullock, senior attorney at the Institute for Justice, which has waged successful campaigns against the abuse of eminent domain in Atlantic City, N.J., Baltimore, Md., and Pittsburgh, Pa. and is currently litigating cases in Canton, Miss., New London, Conn., and New York, N.Y. “The abuse of eminent domain is corporate welfare at its worst, and it’s happening all across the nation.”

The Institute for Justice today also announced the formation of the Castle Coalition, a nationwide network of citizen activists determined to stop the abuse of eminent domain in their communities. The Castle Coalition will act as a resource for property owners threatened by eminent domain. It will offer information, training and support to help them battle condemnation abuses. To launch the coalition, the Institute for Justice this weekend brought together nearly three dozen property owners and activists from around the nation whose homes and businesses are threatened by eminent domain abuse to train them in the art of community activism.

The coalition’s new website, www.CastleCoalition.org, provides a way for activists and property owners to connect with each other and share ideas and advice. The website features an “Eminent Domain Abuse Survival Kit,” which offers tools and information to fight eminent domain, including timelines of the typical condemnation process, links to friendly organizations that can help battle condemnation, and outreach advice.

“If citizens band together, they can stop the bulldozers,” said Bullock. “Much of the abuse happens at the local level, so community organizations can be particularly effective in applying pressure to local governments.”

“Witnessing the pain of homeowners and small-business owners faced with losing what’s rightfully theirs is gut-wrenching,” added Stephanie Parker-Weaver, executive secretary for the Southern Christian Leadership Conference in Jackson, Mississippi, who built a coalition on behalf of property owners in Mississippi whose property is threatened by the state in order to hand it over to Nissan for a new truck plant. “The formation of the Castle Coalition is a giant leap forward in making their voices heard.”

The Institute is the nation’s leading legal advocate against eminent domain abuse. The Institute litigates eminent domain cases throughout the country and was the organization that won a case on behalf of a widow whose house was sought by Donald Trump and a New Jersey government agency. In 2000, the Institute also spearheaded a successful campaign against eminent domain abuse in downtown Pittsburgh, where the mayor proposed taking more than 60 buildings and 120 privately owned businesses to give the property to a developer to build an urban shopping mall. In November 2000, the mayor abandoned his plans and pledged not to use eminent domain in future efforts to develop the area. In October 2000, the Institute filed a lawsuit in federal district court in New York challenging New York’s unconstitutional eminent domain procedures and in December 2000, the Institute launched a legal challenge to the use of eminent domain in New London, Conn., where the government and a private corporation want to take homes and businesses to build privately owned office buildings and other unspecified development projects.

[NOTE: To arrange interviews on this subject, journalists may call John Kramer, the Institute for Justice’s vice president for communications, at (202) 955-1300 or in the evening/weekend at (703) 527-8730.

Eminent Domain: a Brief History of America

Jim Denomie (Ojibwa, Lac Courte Oreilles Band), Eminent Domain: A Brief History of America, 2011. Oil paint on canvas 84 x 144 in. Denver Art Museum: Native Arts acquisition funds, 2013.67. © Jim Denomie. Courtesy of the artist and Bockley Gallery.

In this monumentally scaled painting the artist examines well-known events in American history using his bold narrative and often cartoon-like style.

Look closely at this map of the United States to see more than one hundred images depicting such events as:
- Osama Bin Laden as King Kong scaling the Twin Towers
- Christopher Columbus arriving in three UPS trucks
- Mt. Rushmore with pop culture icons
- Abraham Lincoln observing the assassination of John F. Kennedy
- The bombing of the Federal Building in Oklahoma City
- Civil War battles
- Tonto and the Lone Ranger

Each event is depicted in roughly the geographic location in which it occurred with Denomie's characteristic biting wit as he presents a conflicted national history.

Some images in our online collection are at thumbnail size, in accordance with AAMD guidelines, because they are protected by copyright. The Denver Art Museum respects the rights of artists or their representatives who retain the copyright to their work. Other images represent the best photography available and should be used as reference images only. Please complete the Image Rights Request form if you want to request a high resolution image.

Eminent Domain

Just about everybody has a boss. At the Smithsonian Institution, where the chief executive officer is known as the Secretary, the ultimate authority has been vested by law in its Board of Regents since the Institution's establishment 160 years ago.

There's obvious uniqueness to the Smithsonian. It was established by Congress in 1846 as a trust for the American people in response to a large bequest from an obscure British scientist named James Smithson. The Smithsonian, to be located in Washington, D.C., was not to be a part of any branch of the federal government rather, it was to be guided by an independent Board of Regents, or trustees, composed of the chief justice of the United States, the vice president of the United States, three members of the U.S. Senate, three members of the U.S. House of Representatives and six private citizens. (Today, the number of citizens has increased to nine, seven of whom must come from different states and two from the District of Columbia.) Then as now, the Regents' composition is designed to show that the Smithsonian has both private- and public-sector elements and is linked to all branches of the federal government.

The chief justice and the vice president serve by virtue of their office. The senators and members of the House are appointed by the leadership in both chambers of Congress and serve terms that match their elected terms. Citizen members of the Board of Regents, who can serve two six-year terms, are nominated by the Board and appointed by joint resolutions of Congress that are signed into law by the president of the United States. The Regents elect their own chairman, who is known as the Chancellor of the Institution. Throughout Smithsonian history, the Regents have traditionally elected the chief justice to this position. By law, the Regents are not paid for their service, though they may be reimbursed for expenses they incur coming to meetings.

The Regents exercise their authority in four meetings each year. Three are dedicated to the full range of matters relating to the overall operational management of the Smithsonian—budgets, terms and conditions of philanthropic gifts, appointments to advisory boards, exhibitions and education programs, investment of the Institution's endowment, acceptance of new collections, commercial business activities, and the like. The fourth meeting is devoted to long-range planning. Much of the Regents' work is carried out between these meetings by the Regents' committees, including its Executive Committee, its Finance and Investment Committee, its Audit and Review Committee, its Nominating Committee, and its Committee on Compensation and Human Resources. In addition, the Regents often establish committees to tackle special challenges. Any significant initiative taken by the Smithsonian requires the support of the Board of Regents.

Perhaps the single most important action the Regents take is the appointment of a Secretary to head up the management of the Smithsonian Institution. Secretaries don't serve forever (there have been 11 since 1846), but the Board of Regents is perpetual and, time and again, has proved itself invaluable for the Institution's long-term vitality.

About Lawrence M. Small

Lawrence M. Small was the eleventh secretary of the Smithsonian Institution, serving from 2000 to 2007.

A Brief History of Eminent Domain

Eminent domain is the power of government to take private property for a public purpose without the owner’s consent. The power of eminent domain is invoked only after every effort is made to acquire property through negotiation with the property owner and only as a last resort. The power of eminent domain is inherent in governmental sovereignty. It precedes the Constitution and is not constitutionally conferred. Because eminent domain is an inherent attribute of sovereignty, the federal and state constitutional provisions merely place limitations upon its exercise. The power of eminent domain is further legislatively limited and regulated by the California Eminent Domain Law.

Possibly the earliest known exercise of the power of eminent domain is found in the Bible at 1 Kings XXI. King Ahab sought to acquire Naboth’s vineyard. Upon refusal to sell the subject property, Naboth was stoned to death.

The first known use of the term eminent domain (dominium eminens in Latin) was taken from the legal treatise De Jure Belli ac Pacis, written by the Dutch jurist Hugo Grotius in 1625, who wrote of the power of the state to alienate private property:

… The property of subjects is under the eminent domain of the state, so that the state or those who act for it may use and even alienate and destroy such property, not only in the case of extreme necessity, in which even private persons have a right over the property of others, but for ends of public utility, to which ends those who founded civil society must be supposed to have intended that private ends should give way. But, when this is done, the state is bound to make good the loss to those who lose their property

(Nichols on Eminent Domain (revised third edition, 1997) § 1.12[1], pages 1–14 Nowak, John E. Rotunda, Ronald D. (2004). Constitutional Law (Seventh ed.). St. Paul, MN: Thomson West. p. 263.)

While the power of eminent domain was well established in England before the American revolution for highway acquisitions, the adjudication of the “recompense” appears to have been determined in a proceeding wherein the property owner had no opportunity to be heard (an ex parte proceeding). (Nichols on Eminent Domain (revised third edition, 1997) § 1.12[3], pages 1–74.)

Much of California’s eminent domain law has its origins after World War II when public construction programs boomed and eminent domain trials became commonplace in the courtroom. Because no piece of legislation can cover every factual situation which may arise and because the legislature left to “judicial development” some provisions of the law, the law of eminent domain continues to evolve.

Watch the video: How Eminent Domain Destroys Neighborhoods


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