EMINENT DOMAIN (See also:

• LAT

Lat. eminens, rising high above surrounding See also:

• OBJECTS

objects: and dominium, domain)  , a See also:

• TERM

term applied in See also:

• LAW
• LAW (0. Eng. lagu, M. Eng. lawe; from an old Teutonic root lag, " lie," what lies fixed or evenly; cf. Lat. lex, Fr. loi)
• LAW, JOHN (1671—1729)
• LAW, WILLIAM (1686-1761)

law to the See also:

• SOVEREIGN

sovereign right of a See also:

• STATE
• STATE, GREAT OFFICERS OF

state to appropriate private See also:

• PROPERTY

property to public uses, whether the owner consents or not . It is repeatedly employed by See also:

• GROTIUS, HUGO (1583-1645)

Grotius (e.g . De jure See also:

• BELLI, GIUSEPPE GIOACHINO (1791-1863)

belli, bk. iii. c . 2q, s . 7), See also:

• BYNKERSHOEK, CORNELIUS VAN (1673-1743)

Bynkershoek (Quaest. See also:

• FUR (connected with O. Fr. forre, a sheath or case; so " an outer covering ")

fur. 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 See also:

• MODERN

modern times it is chiefly in the See also:

• UNITED

United'States of See also:

• AMERICA

America that the See also:

• DOCTRINE

doctrine of eminent domain has received its application, and it is chiefly to See also:

• AMERICAN

American law that the following remarks refer (see also the See also:

• ARTICLE (from Lat. articulus, a joint)

article See also:

• COMPENSATION (from Lat. compensare, to weigh one thing against another)

COMPENSATION) . Eminent domain is distinguishable alike from the See also:

• POLICE (Fr. police, government, civil administration, a police force, Gr. sroXumeia, constitution, condition of a state, roars, city, state)

police See also:

• POWER [WILLIAM GRATTAN] TYRONE (1797-1841)

power, by which restrictions are imposed on private property in the public See also:

• INTEREST

interest, e.g. in connexion with the liquor See also:

• TRAFFIC

traffic or public See also:

• HEALTH

health (see re Haff (1904), 197 U.S . 488); from the power of See also:

• TAXATION
• TAXATION (from " tax," derived, through the French, from Lat. taxare, to appraise, which again is connected with the same root as tangere, to touch)

taxation, by which the owner of private property is compelled to contribute a portion of it for public purposes; and from the See also:

• WAR
• WAR (O. Eng. werre, Fr. guerre, of Teutonic origin; cf. O.H.G. werran, to confound)

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 See also:

• DISCHARGE (adapted from the O. Fr. discharge, modern decharge, from a med. Lat. discargare, to unload, dis- and earn care, to load, cf. " charge ")

discharge by See also:

• GOVERNMENT
• GOVERNMENT (0. Fr. governement, mod. gouvernement, O. Fr. governer, mod. gouverner, from Lat. gubernare, to steer a ship, guide, rule; cf. Gr. xv(3epvav)

Government of other duties in cases of See also:

• NECESSITY (Lat. necessitas)

necessity, e.g. in See also:

• ORDER
• ORDER (through Fr. ordre, for earlier ordene, from Lat. ordo, ordinis, rank, service, arrangement; the ultimate source is generally taken to be the root seen in Lat. oriri, rise, arise, begin; cf. " origin ")
• ORDER, HOLY

order to check the progress of a See also:

• FIRE (in O. Eng. f j'r; the word is common to West German languages, cf. Dutch vuur, Ger. Feuer; the pre-Teutonic form is seen in Sanskrit pu, pavaka, and Gr. irup; the ultimate origin is usually taken to be a root meaning to purify, cf. Lat. purus)

fire in a See also:

• CITY (through Fr. cite, from Lat. civitas)

city—dearly cannot be said to be an exercise of the power of eminent domain . The question whether the See also:

• ELEMENT (Lat. elementum)

element of compensation is necessarily involved in the See also:

• IDEA (Gr. Ibia, connected with i&eiv, to see; cf. Lat. species from specere, to look at)

idea of eminent domain has in modern times aroused much controversy . According to one school of thought (see See also:

• LEWIS, HENRY CARVILL
• LEWIS, JOHN FREDERICK (180 1876)
• LEWIS, MATTHEW GREGORY (1775-1818)
• LEWIS, MERIWETHER (1774-1809)
• LEWIS, SIR GEORGE CORNEWALL, BART

Lewis, Eminent Domain, s . 1o), this question must be answered in the negative . According to a second, whose view has the support of the civilians (see See also:

• RANDOLPH, EDMUND [JENNINGS] (1753–1813)
• RANDOLPH, JOHN (1773–1833)
• RANDOLPH, PEYTON (1721-1775)
• RANDOLPH, THOMAS (1523-1590)
• RANDOLPH, THOMAS (1605-1635)

Randolph, Eminent Domain, S . 227; See also:

• MILLS, JOHN (d. 1736)
• MILLS, ROGER QUARLES (1832– )

Mills, Eminent Domain, s . 1) compensation is an inherent attribute of the power . An intermediate view is advocated by See also:

• PROFESSOR (the Latin noun formed from the verb profiteri, to declare publicly, to acknowledge, profess)

Professor See also:

• THAYER, ABBOTT HANDERSON (1849— )
• THAYER, JAMES BRADLEY (1831—1902)
• THAYER, JOSEPH HENRY (1828-1901)

Thayer (Cases on Constitutional Law, vol . 1, 953), according to which eminent domain springs from the necessities of government, while the See also:

• OBLIGATION

obligation to reimburse rests upon the natural right of individuals .

The right to compensation is thus not a component See also:

• PART

part of the power to take, but arises at the same See also:

• TIME (0. Eng. Lima, cf. Icel. timi, Swed. timme, hour, Dan. time; from the root also seen in " tide," properly the time of between the flow and ebb of the sea, cf. O. Eng. getidan, to happen, " even-tide," &c.; it is not directly related to Lat. tempus)
• TIME, MEASUREMENT OF
• TIME, STANDARD

time and the latter cannot exist without it . The relation between the two is that of substance and See also:

• SHADOW (0. Eng. Schadewe, sceadu; a form of " shade "; connected with Gr. 6-Ore's, darkness)

shadow . The See also:

• MATTER

matter is not, however, of See also:

• GREAT

great See also:

• PRACTICAL

practical importance, for the Federal Constitution prohibits the exercise of the power " without just compensation " (5th See also:

• AMENDMENT (through the O. Fr. amender, to correct, from Lat. mendum, a fault)

Amendment), while in most of the states the State constitution or other legislation has imposed upon it a similar See also:

• LIMITATION, STATUTES OF

limitation: and the tendency of modern judicial decisions is in favour of the view that the See also:

• ABSENCE (Lat. absentia)

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 See also:

• TRACTION (Lat. trahere, to draw)

Traction Co. v . See also:

• MINING

Mining Co., 1904, 196 U.S . 239) . Subject to this See also:

• DEFINITION (Lat. definitio, from de-finire, to set limits to, describe)

definition, the term " public " receives a wide See also:

• INTERPRETATION (from Lat. interpretari, to expound, explain, inter pres, an agent, go-between, interpreter; inter, between, and the root pret-, possibly connected with that seen either in Greek 4 p4'ew, to speak, or irpa-rrecv, to do)

interpretation . All kinds of property may be taken; and the See also:

• PROCEDURE (Fr. procedure, from Lat. procedere, to go for-ward)

procedure indicated by the different legislatures must be followed . Any contravention of this See also:

• RULE

rule would involve a See also:

• BREACH (Mid. Eng. breche, derived from the common Teutonic root brec, which appears in " break," Ger. brechen, &c.)

breach of the 5th Amendment of the Federal Constitution, which provides that " no See also:

• PERSON, OFFENCES AGAINST THE

person ... shall be . . . deprived of . . . property, without due See also:

• PROCESS

process of law." It may be added that if the performance of a See also:

• COVENANT
• COVENANT (an O. Fr. form, later convenant, from convenir, to agree, Lat. convenire)

covenant is rendered impossible by an See also:

• ACT (Lat. actus, actum)

act of eminent domain the covenantor is excused . In See also:

• ENGLISH

English law, the only exact analogue to the doctrine of eminent domain is to be found in the See also:

• PREROGATIVE

prerogative right of the See also:

• CROWN

crown to enter upon the lands of subjects or to interfere with their enjoyment for the See also:

• DEFENCE
• DEFENCE (Lat. defendere, to defend)

defence of the See also:

• REALM

realm (see A .

G. v . Tomline; 1879; 12 Ch . D . 214) . No See also:

• ATTEMPT (Lat. adtemptare, attentare, to try)

attempt is made to exercise this prerogative, and lands are acquired for state purposes by See also:

• STATUTE

statute usually framed on or incorporating the Lands Clauses Acts (see COMPENSATION) . The See also:

• FRENCH
• FRENCH, DANIEL CHESTER (1850– )
• FRENCH, NICHOLAS (1604-1678)

French See also:

• CODE (Lat. codex)

Code See also:

• CIVIL

Civil secures compensation to the owner of property in cases of See also:

• EXPROPRIATION

expropriation pour cause d'utilite publique (See also:

• ART

art . 545), and there is similar See also:

• PROVISION (Lat. provisio)

provision in See also:

• BELGIUM
• BELGIUM (Fr. Belgique; Flem. Belgic)

Belgium (Const . Law, art . II.), See also:

• HOLLAND
• HOLLAND, CHARLES (1733–1769)
• HOLLAND, COUNTY AND PROVINCE OF
• HOLLAND, HENRY FOX, 1ST BARON (1705–1774)
• HOLLAND, HENRY RICH, 1ST EARL OF (1S9o-,649)
• HOLLAND, HENRY RICHARD VASSALL FOX, 3RD
• HOLLAND, JOSIAH GILBERT (1819-1881)
• HOLLAND, PHILEMON (1552-1637)
• HOLLAND, RICHARD, or RICHARD DE HOLANDE (fl. 1450)
• HOLLAND, SIR HENRY, BART

Holland (Fundamental Law, art . 147), See also:

• SPAIN
• SPAIN (Espana)

Spain (Civil Code, art . 349, and Law of 3rd May, 1841), and most other See also:

• EUROPEAN

European states . It has been held in See also:

• FRANCE
• FRANCE, ANATOLE (1844– )

France that the right to compensation does not arise under art .

545 of the Code Civil where only a See also:

• SERVITUDE (Lat. servitus, from service, to serve)

servitude d'utilite publique is created on a private individual's See also:

• LAND

land . In addition to the authorities cited in the See also:

• TEXT (Lat. textum, woven fabric, from texere, to weave)

text, see Lewis, Eminent Domain (2nd ed., See also:

• CHICAGO
• CHICAGO, UNIVERSITY OF

Chicago, 1900) ; Mills, Eminent Domain (2nd ed., St See also:

• LOUIS
• LOUIS (804–876)
• LOUIS (893–911)
• LOUIS, JOSEPH DOMINIQUE, BARON (1755-1837)
• LOUIS, or LEWIS (from the Frankish Chlodowich, Chlodwig, Latinized as Chlodowius, Lodhuwicus, Lodhuvicus, whence-in the Strassburg oath of 842-0. Fr. Lodhuwigs, then Chlovis, Loys and later Louis, whence Span. Luiz and—through the Angevin kings—Hungarian

Louis, 1888) ; Randolph, Eminent Domain in the United States (See also:

• BOSTON
• BOSTON, THOMAS (1676-1732)

Boston, 1894) . (A . W .