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Eminent domain (United States), compulsory purchase (United Kingdom, New Zealand, Republic of Ireland), resumption/compulsory acquisition (Australia) or expropriation (South Africa and Canada) in common law legal systems is the inherent power of the state to seize a citizen's private property, expropriate property, or rights in property, without the owner's consent. The United States of America —commonly referred to as the The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom, the UK or Britain,is a Sovereign state located New Zealand is an Island country in the south-western Pacific Ocean comprising two main landmasses (the North Island and the South Island Ireland ( Irish: Éire, ˈeːrʲə is a country in north-western Europe. For a topic outline on this subject see List of basic Australia topics. The Republic of South Africa (also known by other official names) is a country located at the southern tip of the continent of Africa Country to "Dominion of Canada" or "Canadian Federation" or anything else please read the Talk Page Common law refers to law and the corresponding legal system developed through decisions of courts and similar tribunals rather than through legislative statutes or executive A state is a political association with effective Sovereignty over a geographic Area and representing a Population. Property is any physical or virtual entity that is owned by an individual Expropriation refers to Confiscation of Private property with the stated purpose of establishing social equality. The property is taken either for government use or by delegation to third parties who will devote it to "public use or civic" or in some cases, economic development. For the government of parliamentary systems see Executive (government. The most common uses of property taken by eminent domain are public utilities, highways, and railroads. A public utility (usually just utility) is an organization that maintains the Infrastructure for a public service (often also providing a service using * * * * * * * * * * * * * * * * * * * * * * Before adding any more images to this * * page please do carefully consider * * whether they would be mere decoration * * or actually improve "Railroad" and "Railway" both redirect here For other uses see Railroad (disambiguation. Some states require that the government body offer to purchase the property before resorting to the use of eminent domain.

The legal doctrine of eminent domain, like the doctrine of seizure of contraband, allows expropriation of property without contradiction to the existing system of law. Otherwise, expropriation may imply either a criminal or a revolutionary act.

The term "condemnation" is used to describe the formal act of the exercise of the power of eminent domain to transfer title to private property from its rightful owner to itself. It is not to be confused with the same term that describes a declaration that real property, generally a building, has become so dilapidated as to be legally unfit for human habitation due to its physical defects. This type of condemnation of buildings (on grounds of health and safety hazards or gross zoning violation) usually does not deprive the owners of the title to the property condemned but requires them to rectify the offending situation or have the government do it for them and bill them for the cost.

Condemnation via eminent domain indicates the government is taking the property or an interest in it, such as an easement. For railroad track easement see Track transition curve. An easement is the right or freedom to do something or the right to prevent In most cases the only thing that remains to be decided when a condemnation action is filed is the amount of just compensation, although in some cases the right to take may be challenged by the property owner on the grounds that the attempted taking is not for a public use, or has not been authorized by the legislature, or because the condemnor has not followed the proper procedure required by law.

The exercise of eminent domain is not limited to real property. Governments may also condemn personal property, such as supplies for the military in wartime, franchises, as well as intangible property such as contracts, patents, trade secrets, and copyrights. A military is an Organization authorized by its Nation to use force usually including use of Weapons in defending its Country (or by attacking In Economics, a government-granted monopoly (also called a "de jure monopoly" is a form of Coercive monopoly by which a government grants exclusive privilege A contract is an exchange of promises between two or more parties to do or refrain from doing an act which is enforceable in a court of law A patent is a set of Exclusive rights granted by a State to an inventor or his assignee for a fixed period of time in exchange for a disclosure of an A trade secret is a Formula, practice, Process, Design, instrument, Pattern, or compilation of Information which Copyright is a legal concept enacted by Governments, giving the creator of an original work of authorship Exclusive rights to control its distribution usually for

Contents

Etymology

The term "eminent domain" originated from the Latin term dominium eminens ("supreme lordship"), which was first used in the 17th century by Grotius to describe this concept. Latin ( lingua Latīna, laˈtiːna is an Italic language, historically spoken in Latium and Ancient Rome. Hugo Grotius or Huig de Groot, or Hugo de Groot; ( Delft, 10 April 1583 Rostock, 28 August 1645

History

When the colonies became the United States and the English Common Law was adopted as the law of the new nation, this principle was recognized. The Thirteen Colonies were part of what became known as British America, a name that was used by Great Britain until the Treaty of Paris (1783 recognized the Common law refers to law and the corresponding legal system developed through decisions of courts and similar tribunals rather than through legislative statutes or executive Contrary to popular belief, the Fifth Amendment to the United States Constitution did not establish this right in the U. The Fifth Amendment ( Amendment V) of the United States Constitution, which is part of the Bill of Rights, is related to legal procedure The Constitution of the United States of America is the supreme Law of the United States. S. , as it was already inherent in common law. The Fifth Amendment limited the right of eminent domain by requiring that takings be for "public use" and that "just compensation" be paid for the taken property. The term eminent domain is used primarily in the States, where the term was derived in the mid-19th century from the legal treatise, De Jure Belli et Pacis, written by the Dutch jurist Hugo Grotius in 1625, who used the term dominium eminens and described the power as follows:

". The Netherlands ( Dutch:, ˈnedərlɑnt is the European part of the Kingdom of the Netherlands, which consists of the Netherlands the Netherlands JURIST is an online legal news service hosted by the University of Pittsburgh School of Law, written by founder Professor Bernard Hibbitts and a staff of more than Hugo Grotius or Huig de Groot, or Hugo de Groot; ( Delft, 10 April 1583 Rostock, 28 August 1645 . . the property of subjects is under the eminent domain of the state, so that the state or he who acts 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 it is to be added that when this is done the state is bound to make good the loss to those who lose their property. "

However, another noted jurist, Samuel von Pufendorf, in his work, De Jure Naturae et Gentium criticized the usage of the term "eminent domain". Baron Samuel von Pufendorf ( January 8, 1632 &ndash October 13, 1694) was a German Jurist, political Philosopher In his analysis of the control ("potestas") of property he made a classification as follows:

(a) Control, in the proprietary sense, as of that which is one's own, he termed "dominium";

(b) Control, in the governmental or sovereign sense, as of that which belongs to others, he termed "imperium". It was his conclusion that a more accurate term for the power to take property for public use would be "imperium eminens".

Many other jurists, like Cornelius Bynkershoek and Johann Gottlieb Heineccius also were of the same opinion as Puffendorf. Cornelius van Bynkershoek ( 1673 – 1743) was a Dutch Jurist and legal theorist who contributed to the development of International Johann Gottlieb Heineccius ( September 11, 1681 - August 31, 1741) was a German Jurist from Eisenberg Thuringia However, Heineccius noted that though there is a difference and it is imperium that belongs to rulers, still it would be futile to condemn the term when it has been so widely accepted.

The legal principle is that all property in a jurisdiction is "owned" by the sovereign of it, and that authority to make law for that property is ultimate ownership. A Gold Sovereign is a Gold coin first issued in 1489 for Henry VII of England and still in production as of 2008 In a democratic nation the sovereign is the people, collectively, over all the territory of that nation. What private parties can "own" is not the land itself, but an equitable interest in title to an estate in the land or property, and it is that equitable interest to which they are entitled for compensation if the title to the estate is taken. Title is a legal term for a bundle of rights in a piece of property in which a party may own either a legal interest or an equitable interest The rights An estate is the Net worth of a person at any point in time It is the sum of a person's Assets - legal rights interests and entitlements to Property of

The term compulsory purchase, also originating in the mid-19th century, is used primarily in England and Wales (see compulsory purchase order, and other jurisdictions that follow the elements of English law. History The Roman occupation of Britain was the first period in which the area of present-day England and Wales was administered as a single unit (with the exception Compulsory purchase order (CPO is a legal function in the United Kingdom, and also in the Republic of Ireland. English law is the legal system of England and Wales, and is the basis of Common law legal systems used in most Commonwealth countriesand the Originally, the power of eminent domain was assumed to arise from natural law as an inherent power of the sovereign. Natural law or the law of nature ( Latin: lex naturalis) is a theory that posits the existence of a law whose content is set by Nature and that Sovereignty is the exclusive Right to control a Government, a country, a people or oneself Some states (New York, Louisiana) use the term appropriation as a synonym for the exercising of eminent domain. New York ( is a state in the Mid-Atlantic and Northeastern regions of the United States and is the nation's third most populous The State of Louisiana ( or, État de Louisiane, pronounced) is a state located in the southern region of the United States of America

Allodial versus feudal title

Allodial title is the title to land generally held in freehold, by an individual or group that is sovereign on that land. Allodial title is a concept in some systems of property law It describes a situation where Real property ( Land, Buildings and Fixtures) is owned Fee simple is an estate in land in Common law. It is the most common way Real estate is owned in common law countries and is ordinarily the most Thus, in English law, only the monarch holds allodial title. All others are tenants of the sovereign through their feudal vassalages. A vassal (also called feodary or fedary) in the terminology that both preceded and accompanied the feudalism of Medieval Europe, Sovereigns generally gain allodial title either by grant of another sovereign to such title, or through right of conquest. The right of conquest is the purported Right of a conqueror to territory taken by force of arms In this respect, while colonial American land grants were typically feudal grants in fee-simple, the victory of the American cause in the American Revolutionary War is considered an act of conversion to allodial title, such that the king was no longer the sovereign of the colonies. Fee simple is an estate in land in Common law. It is the most common way Real estate is owned in common law countries and is ordinarily the most In this article the inhabitants of the thirteen colonies that supported the American Revolution are primarily referred to as "Americans" with occasional references to "Patriots" However, the new holders in this case are the several states that engaged in the revolution, and it is upon this basis that the practice of fee-simple titles is continued in the United States. This is an issue of dispute by some constitutionalist and property rights groups, with some individuals occasionally attempting to patent allodial titles to their land. Some states, notably Nevada, have instituted an Allodial Title Program in which property owners can purchase allodial title to their land essentially by paying an amount discounted from the sum of all future property taxes for the term of the owner's life expectancy. Nevada ( is a state located in the western region of the United States of America. Allodial title is a concept in some systems of property law It describes a situation where Real property ( Land, Buildings and Fixtures) is owned

United States

In the United States, the right for the government to take private real or personal property predates the constitution and goes back to English Common Law. Common law refers to law and the corresponding legal system developed through decisions of courts and similar tribunals rather than through legislative statutes or executive This right was implicitly recognized in the Fifth Amendment to the U.S. Constitution in 1791, which reads, “…nor shall private property be taken for public use, without just compensation. The Constitution of the United States of America is the supreme Law of the United States. Year 1791 ( MDCCXCI) was a Common year starting on Saturday (link will display the full calendar of the Gregorian calendar (or a Common ”

State governments almost immediately began using a broad definition of public use. As early as 1829, States gave eminent domain authority to freight and passenger railroad companies, thereby allowing a private entity to take land for private use (in the case of freight railroads). For the game see 1829 (board game. Year 1829 ( MDCCCXXIX) was a Common year starting on Thursday (link will display [1]

The U.S. Supreme Court has consistently upheld the rights of states to make their own definitions of public use. The Supreme Court of the United States is the highest judicial body in the United States and leads the federal judiciary. For instance, in 1832 the Supreme Court ruled that eminent domain could be used to allow a mill owner to expand his dam and operations by flooding an upstream neighbor. The court opinion stated that a public use does not have to mean public occupation of the land; it can mean a public benefit. [2]

In fact, until the 14th Amendment was ratified in 1868, there was some debate if the Federal government and Supreme Court had any role in ensuring that States paid just compensation. [3]

Another early case, Clark vs. Nash (1905), allowed one farmer to build/expand an irrigation ditch, taking property owned by another farmer. This was considered a public use even though the water from the ditch was used entirely by the one farmer.

An expansive interpretation of eminent domain was reaffirmed in Berman v. Parker (1954), in which the U.S. Supreme Court reviewed an effort by the District of Columbia to take and raze structures that were primarily--but not entirely--blighted, in order to transfer the sites to private redevelopers who would construct condos, private office buildings and a shopping center. The Supreme Court of the United States is the highest judicial body in the United States and leads the federal judiciary. Washington DC ( formally the District of Columbia and commonly referred to as Washington, the District, or simply D The Supreme Court ruled against the owners of non-blighted properties within the area on the grounds that the project should be judged on its plans as a whole, not on a parcel by parcel basis. In Hawaii Housing Authority v. Midkiff (1984), the Supreme Court approved eminent domain to break up a housing oligopoly.

The Supreme Court's decision in Kelo v. City of New London, 545 U. Kelo v City of New London, 545 US 469 (2005 was a case decided by the Supreme Court of the United States involving the use of Eminent domain S. 469 (2005) affirmed New London’s authority to take nonblighted private property by eminent domain, and then sell the property to a private developer. This 5-4 decision received heavy press and in some cases inspired a public outcry. Several states have enacted or are considering state legislation that would restrict the state's own power of eminent domain. The Supreme Courts of Illinois, Michigan (County of Wayne v. Hathcock(2004)), and Ohio (Norwood, Ohio v. Horney(2006)) have recently ruled to disallow such takings under their state constitutions.

Bush Executive Order

On June 23, 2006 - on the one-year anniversary of the Kelo decision (see above), President George W. Bush issued an executive order stating in Section I that the Federal Government must limit its use of taking private property for "public use" with "just compensation", which is also stated in the constitution, for the "purpose of benefiting the general public. Events 1180 - First Battle of Uji, starting the Genpei War in Japan 1305 - The Flemish Year 2006 ( MMVI) was a Common year starting on Sunday of the Gregorian calendar. The President of the United States is the Head of state and Head of government of the United States and is the highest political official in United States by George Walker Bush ( born July 6 1946 is the forty-third and current President of the United States. executive order in the United States is a Directive issued by the President, the head of the executive branch of the federal government " He limits this use by stating that it may not be used "for the purpose of advancing the economic interest of private parties to be given ownership or use of the property taken. "[4] However, eminent domain is often exercised by local and state governments; the order may thus have little overall effect.

Examples

Typo in the U. Berman v Parker, is a Landmark decision of the United States Supreme Court that refined the clause "nor shall private property be taken for public Hawaii Housing Authority v Midkiff, 467 US 229 ( 1984) was a case in which the United States Supreme Court held that a state could use the Norwood Ohio v Horney 110 Ohio St3d 353 was a case brought before the Ohio Supreme Court in 2006. Kelo v City of New London, 545 US 469 (2005 was a case decided by the Supreme Court of the United States involving the use of Eminent domain S. Constitution

See also: Errors in the United States Constitution#Comma or smudge?

Europe

In many European nations, the European Convention on Human Rights provides protection from appropriation of private property by the state. There are several apparent spelling and grammatical '''errors''' in the United States Constitution — both the original articles and the Bill of Rights The Convention for the Protection of Human Rights and Fundamental Freedoms (also called the "European Convention on Human Rights" and "ECHR" was adopted under the Article 8 of the Convention provides that "Everyone has the right to respect for his private and family life, his home and his correspondence" and prohibits interference with this right by the state, unless the interference is in accordance with law and necessary in the interests of national security, public safety, economic well-being of the country, prevention of disorder or crime, protection of health or morals, or protection of the rights and freedoms of others. National security is the entire scope of measures undertaken by the Governments of Nation-states in providing assurance of national Sovereignty This right is expanded by Article 1 of the First Protocol to the Convention, which states that "Every natural person or legal person is entitled to the peaceful enjoyment of his possessions. The Convention for the Protection of Human Rights and Fundamental Freedoms (also called the "European Convention on Human Rights" and "ECHR" was adopted under the " Again, this is subject to exceptions where state deprivation of private possessions is in the public interest, is in accordance with law, and, in particular, to secure payment of taxes. The public interest refers to the "common well-being" or "general welfare

France

In France, the Declaration of the Rights of Man and of the Citizen similarly mandates just and preliminary compensation before expropriation. This article is about the country For a topic outline on this subject see List of basic France topics. The Declaration of the Rights of Man and Citizen (Déclaration des droits de l'Homme et du citoyen is a fundamental document of the French Revolution, defining

England and Wales

In England and Wales, and other jurisdictions that follow the principles of English law, the related term compulsory purchase is used. History The Roman occupation of Britain was the first period in which the area of present-day England and Wales was administered as a single unit (with the exception English law is the legal system of England and Wales, and is the basis of Common law legal systems used in most Commonwealth countriesand the The landowner is compensated with a price agreed or stipulated by an appropriate person. The operative law is a patchwork of statutes and case law. The principal Acts are the Lands Clauses Consolidation Act 1845, the Land Compensation Act 1961, the Compulsory Purchase Act 1965, the Land Compensation Act 1973, part IX of the Town and Country Planning Act 1990, the Planning and Compensation Act 1991, and the Planning and Compulsory Purchase Act 2004. The Town and Country Planning Act 1990 was passed to better regulate the way in which large and small scale developments were approved by local authorities in England and Wales The Planning and Compensation Act 1991 was an Act of Parliament in the United Kingdom to amend the law relating to Town and country planning; The Planning and Compulsory Purchase Act 2004 is a piece of a legislation promoted by the Office of the Deputy Prime Minister, substantially reforming the town planning

Australia

In Australia, section 51, subsection xxxi of the Constitution permits the federal government to make laws with respect to "the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws. For a topic outline on this subject see List of basic Australia topics. The Constitution of Australia is the law under which the Australian Commonwealth Government operates " This has been construed not necessarily to mean just compensation as a just term might not of necessity be monetary or proprietary recompense, as was particularly notable in The Castle. The Castle is a 1997 Australian comedy Film that gained widespread acclaim in Australia but was not widely distributed globally However, it is for the court to determine what is just and it may be necessary to imply a need for compensation in the interests of justice, lest the law be invalidated (Andrews v Howell (1941) 65 CLR 255). The property is not restricted to real estate. The precedent established by the federal court (Smith v Harrison (1981) 135 CLR 280) extended the states' power to any form of physical property. The court ruled that animals under the federal Marsupial Protection Act (MPA) could be expropriated from private owners and reestablished in reservations.

For the purposes of section 51, subsection xxxi, money is not property which may be compulsorily acquired; the Commonwealth must also derive some benefit from the property acquired and not merely seek to extinguish the previous owner's title (Mutual Pools and Staff Pty Ltd v Commissioner of Taxation (1992) 173 CLR 450). A statutory right to sue has been considered "property" under this section (Smith v ANL Ltd (2000) 176 ALR 449).

The term resumption is a reflection of the fact that all land was owned by the crown in 1788, and that the crown is resuming ownership.

Canada

In Canada expropriation is governed by federal or provincial statutes. Country to "Dominion of Canada" or "Canadian Federation" or anything else please read the Talk Page Under these statutory regimes public authorities have the right to acquire private property for public purposes, so long as the acquisition is approved by the appropriate government body. Once property is taken, an owner is entitled to "be made whole" by compensation for: the market value of the expropriated property, injurious affection to the remainder of the property (if any), disturbance damages, business loss and special difficulty relocating. Owners can advance claims for compensation above that initially provided by the expropriating authority by bringing a claim before the court or an administrative body appointed by the governing legislation.

Other countries

Many countries recognize eminent domain to a much lesser extent than the English-speaking world or do not recognize it at all. Japan, for instance, has very weak eminent domain powers, as evidenced by the high-profile opposition to the expansion of Narita International Airport, and the disproportionate amounts of financial inducement given to residents on sites slated for redevelopment in return for their agreement to leave, one well-known recent case being that of Roppongi Hills. For a topic outline on this subject see List of basic Japan topics. is an international Airport located in Narita, Chiba, Japan, in the eastern portion of the Greater Tokyo Area. is one of Japan 's largest integrated property developments located in the Roppongi district of Minato, Tokyo.

There are other countries such as the People's Republic of China that practice eminent domain whenever it is convenient to make space for new communities and government structures. Talk People's Republic of China) PEOPLE'S REPUBLIC OF CHINA ARTICLE GUIDELINES Singapore practices eminent domain under the Land Acquisitions Act which allows it to carry out its Selective En bloc Redevelopment Scheme for urban renewal. Singapore The Selective En bloc Redevelopment Scheme, or SERS for short is an urban Redevelopment strategy employed by the Housing and Development Board The Amendments to the Land Titles Act allowed property to be purchased for purposes of urban renewal against an owner sharing a collective title if the majority of the other owners wishes to sell and the minority did not. Thus, eminent domain often invokes concerns of majoritarianism. Majoritarianism is a traditional Political philosophy or agenda which asserts that a Majority (sometimes categorized by Religion, Language, or

Most recently (and infamously) in Zimbabwe, the government of Robert Mugabe seized a great deal of land and homes of mainly poor villagers thought to be political opponents of his regime. See also Great Zimbabwe National Monument. For information about the March and June 2008 presidential elections see Zimbabwean presidential election

References

  1. ^ Findlaw.com 5th Amendment discussion
  2. ^ www.hoover.org policy review
  3. ^ Findlaw.com 5th Amendment discussion
  4. ^ "Protecting the Property Rights of the American People", Executive Order 13406, 71 F.R. 36973 (2006-06-23)

Further reading

Dictionary

eminent domain

-noun

  1. (US) The right of a government over the lands within its jurisdiction. Usually invoked to compel land owners to sell their property in preparation for a major construction project such as a freeway.
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