History Of Eminent Domain

Eminent domain has a long legal history, from the Magna Carta to the recent controversy over the Kelo v New London law suit and the response to eminent domain "abuses." The basic controversy over whether the good of the many outweighs the good of the few or the one stretches back to our earliest legal history.

Origins of Eminent Domain

In ancient legal systems, property ownership by individuals was generally conditional. For example, Hebraic law stated that the division of land was established by God, and that people did not have the right to sell or trade land. They could sell land, but only for a limited period of time, until the next "Jubilee Year," which is every 49 years, at which point the property returns to the family designated by God as the owners of the land.

In other systems, all land is held at the indulgence of the king, who has the power to take it back or give it at will.

The first limitations of the king's power to obtain property at will was with the signing of the Magna Carta in 1215. This document forced the king to accept that no man could be imprisoned or have his property taken without the "lawful judgment of his peers." The modern language about "due process of law" was added to the document in 1354. However, the term "eminent domain" was not coined until 1625, when it was used by the Dutch jurist Hugo Grotius.

Eminent Domain in the US

The origins of eminent domain law in the US come from colonial understandings of land use. Despite the language of the Magna Carta, the same protections were not necessarily extended to Colonists in the New World. Because the land of the New World was understood to be a grant of the Crown that could be rescinded at will. The land grants often came with conditions that people must develop their land in certain ways, so when people failed to live up to these conditions, the grant was naturally taken back. As a result, British Colonists were essentially denied the same legal protections they had come to expect in Britain, where not only due process, but just compensation was becoming the law of the land.

Nor were Colonial governments any better. "Use it or lose it" was the rule of the day, and not compensating people when you took their land for roads made road building cheaper, resulting in tax savings at the expense of the individual property owners. Before the Fifth Amendment, compensation for property taken in eminent domain was generally considered optional, something a government body could give if it wanted.

The first governments to require compensation for eminent domain were the Vermont Constitution of 1777 and the Massachusetts Constitution of 1780. There was little support for an eminent domain provision in the Constitution. No states campaigned for the inclusion of the provision in the Bill of Rights. Instead, it was inserted by James "Radical" Madison, who wrote the Fifth Amendment, which might explain why it seems tacked on at the end.

Kelo v New London and the Revised Florida Constitution

In 2005, the Supreme Court made its controversial decision in the Kelo v New London lawsuit. The origin of the case was an eminent domain lawsuit that questioned the meaning of public use. Susette Kelo was one of several people whose property was being taken by the City of New London, Connecticut and essentially given to Pfizer for the building of a spiffy new research facility. Kelo and her fellow citizens objected that giving the land to a multinational corporation did not constitute a "public use" of the land and therefore should not be allowed. When the Supreme Court decided that "public use" could include taking land from one owner and giving it to another in the name of economic development, the controversy would change the eminent domain laws in many states across the country.

Florida was one of the states that acted swiftly and surely to stop New London-style abuses of eminent domain. A constitutional amendment was adopted in 2006 to prevent the use of eminent domain as a form of corporate welfare. The text of Florida's new eminent domain law reads:

(a) No private property shall be taken except for a public purpose and with full compensation therefor paid to each owner or secured by deposit in the registry of the court and available to the owner.
(b) Provision may be made by law for the taking of easements, by like proceedings, for the drainage of the land of one person over or through the land of another.
(c) Private property taken by eminent domain pursuant to a petition to initiate condemnation proceedings filed on or after January 2, 2007, may not be conveyed to a natural person or private entity except as provided by general law passed by a three-fifths vote of the membership of each house of the Legislature.

This new text of the Florida Constitution provides some of the strongest protections against eminent domain abuse in the country.

If you are being faced with an eminent domain action, let The Florida Property Rights Law Firm put those protections to work for you. Please contact us today for a consultation.