1911 Encyclopædia Britannica/Eminent Domain
EMINENT DOMAIN (Lat. eminens, rising high above surrounding objects: and dominium, domain), a term applied in law to the sovereign right of a state to appropriate private property to public uses, whether the owner consents or not. It is repeatedly employed by Grotius (e.g. De jure belli, bk. iii. c. 20, s. 7), Bynkershoek (Quaest. jur. pub. bk. 2, c. 15), and Puffendorf (De jure naturae et gentium, bk. i. c. 1, s. 19),—the two latter, however, preferring the word imperium to dominium; and by other Dutch jurists. But in modern times it is chiefly in the United States of America that the doctrine of eminent domain has received its application, and it is chiefly to American law that the following remarks refer (see also the article Compensation). Eminent domain is distinguishable alike from the police power, by which restrictions are imposed on private property in the public interest, e.g. in connexion with the liquor traffic or public health (see re Haff (1904), 197 U.S. 488); from the power of taxation, by which the owner of private property is compelled to contribute a portion of it for public purposes; and from the war-power, involving the destruction of private property in the course of military operations. The police power fetters rights of property; eminent domain takes them away. The power of taxation is analogous to eminent domain as regards the purposes to which the contribution of the tax-payer is to be applied. But, unlike eminent domain, it does not necessarily involve a taking of specific property for those purposes. The destruction of property in military operations—or in the discharge by Government of other duties in cases of necessity, e.g. in order to check the progress of a fire in a city—clearly cannot be said to be an exercise of the power of eminent domain. The question whether the element of compensation is necessarily involved in the idea of eminent domain has in modern times aroused much controversy. According to one school of thought (see Lewis, Eminent Domain, s. 10), this question must be answered in the negative. According to a second, whose view has the support of the civilians (see Randolph, Eminent Domain, s. 227; Mills, Eminent Domain, s. 1) compensation is an inherent attribute of the power. An intermediate view is advocated by Professor Thayer (Cases on Constitutional Law, vol. 1, 953), according to which eminent domain springs from the necessities of government, while the obligation to reimburse rests upon the natural right of individuals. The right to compensation is thus not a component part of the power to take, but arises at the same time and the latter cannot exist without it. The relation between the two is that of substance and shadow. The matter is not, however, of great practical importance, for the Federal Constitution prohibits the exercise of the power “without just compensation” (5th Amendment), while in most of the states the State constitution or other legislation has imposed upon it a similar limitation: and the tendency of modern judicial decisions is in favour of the view that the absence of such a limitation will make an enactment so far unconstitutional and invalid.
In order to justify the exercise of the power of eminent domain, the purposes to which the property taken is to be applied must be “public,” i.e. primarily public, and not primarily of private interest and merely incidentally beneficial to the public (Madisonville Traction Co. v. Mining Co., 1904, 196 U.S. 239). Subject to this definition, the term “public” receives a wide interpretation. All kinds of property may be taken; and the procedure indicated by the different legislatures must be followed. Any contravention of this rule would involve a breach of the 5th Amendment of the Federal Constitution, which provides that “no person . . . shall be . . . deprived of . . . property, without due process of law.” It may be added that if the performance of a covenant is rendered impossible by an act of eminent domain the covenantor is excused.
In English law, the only exact analogue to the doctrine of eminent domain is to be found in the prerogative right of the crown to enter upon the lands of subjects or to interfere with their enjoyment for the defence of the realm (see A.G. v. Tomline; 1879; 12 Ch. D. 214). No attempt is made to exercise this prerogative, and lands are acquired for state purposes by statute usually framed on or incorporating the Lands Clauses Acts (see Compensation). The French Code Civil secures compensation to the owner of property in cases of expropriation pour cause d’utilité publique (art. 545), and there is similar provision in Belgium (Const. Law, art. II.), Holland (Fundamental Law, art. 147), Spain (Civil Code, art. 349, and Law of 3rd May, 1841), and most other European states. It has been held in France that the right to compensation does not arise under art. 545 of the Code Civil where only a servitude d’utilité publique is created on a private individual’s land.
In addition to the authorities cited in the text, see Lewis, Eminent Domain (2nd ed., Chicago, 1900); Mills, Eminent Domain (2nd ed., St Louis, 1888); Randolph, Eminent Domain in the United States (Boston, 1894). (A. W. R.)