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Eminent Domain – Explained

18. What is “Eminent Domain”?

Eminent domain is the power granted local, state, and federal governments under the Takings Clause of the 5th Amendment. This clause allows the various levels of government to take away property from private owners under certain conditions. Generally, the taking must be for a “public purpose” and the government must provide “just compensation” to the landowner for the taking. A taking refers to a physical seizure of the land as well as unduly burdening an individual’s use and enjoyment of her property.

•    Note: An owner whose land is being taken may challenge the action in civil court. Generally, the landowner must show that the taking is not for a public purpose or that she was not given just compensation.

•    Example: If the state builds a highway that brings traffic into someone’s front yard, this would likely be a taking. The individual’s ability to use and enjoy her property is diminished by proximity of the traffic.

•    Discussion: How do you feel about the ability of the government to take a person’s land? Does it affect your opinion that this right is expressly included in the Constitution? Why or why not? Does your opinion about this authority vary depending on whether the governmental authority is the federal, state, or local government? What standard should apply when determining what constitutes a public purpose?

•    Practice Question: Melinda owns a small farm on the edge of town. The local township is in negotiations with Save-Mart, Inc., to build a new store in the town. Save-Mart has identified Melinda’s farm as the perfect location. Melinda is unwilling to sell the land. What are the options for the township with regard to Melinda’s property?

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