Eminent domain power was first observed and examined in 1876 in the U. S. Supreme Court in the case of Kohl v. United States. It happened in Cincinnati, Ohio where a landowner confronted and opposed to the power of the United States to condemn land, for the use of building a post office and a custom house. Ever since, eminent domain has been strictly categorized for the uses of facilitating transportation, supply water, construct public buildings, and aid in defense readiness, in addition of compensating the owner of such private property.
As well as, establishing parks and setting open space for the community, conserving places of historic importance, preserving natural assets, and protecting environmentally sensitive areas. The compensation stipulation came to be in the late seventeenth century and the public use limitation arose after the American independence from the Britain. However, what can be established as a fair payment to an indisposed vendor? Also, what if the set public use for said space, is not necessarily needed in such property? History
Chancellor Kent, American jurist and legal scholar, identified four validations for any owner to be remunerated for water taken by a waterworks project (Meidinger, 1980). First, the failure to provide compensation to this type of property owner while rewarding others was a judicial oversight; second that compensation is required by all temperate and civilized governments; third private property cannot be violated in any case, without the interposition of the government; and fourth, Kent appealed for the fifth amendment of the United States Constitution, which to the states was at that time an issue to great doubt.
There is an assumption in which it said that the Romans employed a law much like eminent domain in ancient times for the construction of straight roads and aqueducts, but there are also differing conclusions. The only evidence in such question, is that the construction of the roads from one end of the Empire to the other (Meidinger, 1980) comes from the citizens having full title and the only sort of compensation at that time was the material needed for buildings and improvement of said properties.
Thanks to patriarchal relations, property rights were directly tied to such in the mediaeval feudal system. In England, there seems to be no combined or complimentary policies of takings in the early English law, however it is said to be complicated and “tangled” (Meidinger, 1980). Nevertheless, the power of eminent domain was well instituted and established in England by the time of the American Revolution, and the obligation to make a compensation to property owners had become a necessary and regulatory incident for such exercise of power.
It is believed that the English had yet to raise the subject of eminent domain to the authoritative level at which it now occurs in America. The English law does not even use the expression or phrase of eminent domain but as an alternative is called a compulsory acquisition, enforced powers, and/or expropriation. Reimbursement may be said to be a statutory principle, to the point such can exist without a constituent, at least well into the eighteenth century.
The first certain evidence of expropriation of land and of eminent domain, is observed in the earliest of the numerous rulings of sewers, legislated in 1427 (Meidinger, 1980). Declaiming that ancient drains, gutters, walls, bridges, and paths for draining plains had come to be into bad conditions, the ruling appointed officials and representatives of sewers to maintain them, with power to consider benefitted property owners.
In the era of the colonies in America, in Massachusetts, the first eminent domain was a ruling in 1639 which was accredited to the county courts, to whom appointed local citizens to place and plan a much needed highway, which came upon a complaint for roads. Damaging or destroying houses, gardens and/or plantations was forbidden for such construction. For instance, in other states such as South Carolina, which in particular continued to take land and materials for highways without compensation until well after independence-about 1836.
However, by the end of the colonial era, eminent domain started to take shape as a legal form. As well as indicators that during the first decades after independence, the primary uses of eminent domain remained essentially what they had been throughout the colonial era: building roads and mill dams (Meidinger, 1980). Literature Review Eminent domain provides to public entities the entitlement and justification to obtain property and land from private individuals in exchange of a monetary value of such property.
The only role and purpose of the acquired and is for it to be exclusively utilized for public uses, it cannot be utilized for means of producing tax revenues, additional jobs, and/or economic development benefits, giving an increased monetary advantage to the public agency. Kitchens (2014) explained that given the potential to expand and abuse eminent domain, it is of extreme importance to understand the refusing decision of the private owner, in instance waiting for the role of courts, and the outcomes of individuals taken to court. If a private owner had over a thousand dollars in holdouts then such proprietor was more likely to do for every thousand dollars debt.
In other words, when someone has a considerable amount of the debt, the owner would preferably go to court and let the judge decide as to how much he/she is entitled to for the value of the owned land, instead of simply accepting the compensation that is being offered. Another fact in holding the selling of the property is related as to how many years the property owner has lived on the requiring land. The use of eminent domain for development and growth is significantly linked to controversies and complicated debates on economic development.
One case where the taking of someone’s land turned into an issue of economic development was the Kelo v. City of New London, upheld in the U. S. Supreme Court on June 2005. The case was rationalized saying that it was unconstitutional for the government administration to acquire private property from one individual entity or corporation and give it to another entity, especially if the government was simply doing so for the reason that the repossession would put the land to a use that would produce an increase on tax revenues, projected to add jobs, and revitalize local economy.
Essentially in a study done by Carpenter and Ross (2009), the authors demonstrated the collected data that eminent domain for private development would most likely disproportionately and unjustifiably hurt poor and minority communities more than the affluent communities. A proof of a familiar setting was the Berman v. Parker case in 1945 in Washington DC, the court case said that the involvement of a private party to use the new redeveloped area taken from a largely minority sector, was justifiable and necessary as a public purpose and not public use.
An improved suggestion or proposal would be for a complete requirement of an extensive and comprehensive compensation for individuals whose property is being taken away by eminent domain, given the property owners a fair market value for their land, no more and no less. But, if the owner is currently living in the area that is being taken, then he/she is entitled for a bigger compensation than just the market value for such land.
Such requirements would be strongly enforced by the attorneys who represent property owners for said actions and events, and of course raising the original amount of the lawsuit since lawyers titled to a percentage of the value that is being asked for (Merrill, 2005). Local Governments and Regulations A list of the ten major states has been decided to examine in their respective eminent domain regulations and bylaws.
The list will go as followed: 1. California 2. New York 3. Texas 4. Pennsylvania 5. Florida 6. Massachusetts 7. Ohio 8. Virginia 9. Washington 10. Maryland California Eminent domain laws can be found in Title 7 of Code of Civil Procedure. The public uses for the acquisition can include schools, roads, libraries, police stations, fire stations and so forth. Pursuant to Cal Code Civil Procedure § 1245. 220 the government agency must adopt an official resolution, before beginning an eminent domain proceeding in court (Cal Code Civil Procedure § 1245. 230). The resolution must be adopted at a public hearing, and before the condemning agency can start an eminent domain action in court.