What is EMINENT DOMAIN? What does EMINENT DOMAIN mean? EMINENT DOMAIN meaning & explanation
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What is EMINENT DOMAIN? What does EMINENT DOMAIN mean? EMINENT DOMAIN meaning - EMINENT DOMAIN definition - EMINENT DOMAIN explanation.
Source: Wikipedia.org article, adapted under https://creativecommons.org/licenses/by-sa/3.0/ license.
Eminent domain (United States, the Philippines), compulsory purchase (United Kingdom, New Zealand, Ireland), resumption (Hong Kong), resumption/compulsory acquisition (Australia), or expropriation (France, Mexico, South Africa, Canada, Brazil, Portugal, Spain) is the power of a state or a national government to take private property for public use. However, it can be legislatively delegated by the state to municipalities, government subdivisions, or even to private persons or corporations, when they are authorized by the legislature to exercise the functions of public character.
The property may be taken either 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 of property taken by eminent domain are for government buildings and other facilities, public utilities, highways and railroads, or for public safety. Some jurisdictions require that the acquirer make an offer to purchase the subject property, before resorting to the use of eminent domain.
However, once the property is taken and the judgment is final, the condemnor may put it to uses other than those specified in the eminent domain action.
Property of an owner may be taken either in its entirety (total take) or in part (part take), either quantitatively or qualitatively (either partially in fee simple or, commonly, an easement, or any other interest less than the full fee simple title).
The term "eminent domain" was taken from the legal treatise De Jure Belli et Pacis, written by the Dutch jurist Hugo Grotius in 1625, which used the term dominium eminens (Latin for supreme lordship) and described the power as follows:
"... 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."
The exercise of eminent domain is not limited to real property. Governments may also take personal property. Governments can even acquire intangible property such as contract rights, patents, trade secrets, and copyrights. Even the taking of a professional sports team's franchise has been held by the California Supreme Court to be within the purview of the "public use" constitutional limitation, although eventually, that taking was not permitted because it was deemed to violate the interstate commerce clause of the U.S. Constitution.
A taking of property must be accompanied by payment of "just compensation" to the owner. In theory, this is supposed to put the owner in the same position "pecuniarily" that he would have been in had his property not been taken. But in practice courts have limited compensation to the property's fair market value, considering its highest and best use. But though rarely granted, this is not the exclusive measure of compensation; see United States v. Kimball Laundry (business losses in temporary takings) and United States v. Pewee Coal Co. (operating losses cause by government operations of a mine seized during World War II). In most takings the owner is not compensated for a variety of incidental losses caused by the taking of his or her property that, though incurred and readily demonstrable, are deemed by the courts to be noncompensable. The same is true of attorneys' and appraisers fees. But as a matter of legislative grace rather than constitutional requirement some of these losses (e.g., business goodwill) have been made compensable by state legislative enactments, and may be partially covered by provisions of the federal Uniform Relocation Assistance Act.