Eminent Domain: Public Use Requirement

An eminent domain action requires that the government's taking of property be for a "public use". A public use is generally one which confers some benefit or advantage to the public. The term does not necessarily imply -- and is not confined to -- actual "use" by the public. Moreover, the purported benefit to be derived from the taking of property need not be available to the entire public; it may benefit a smaller sector of members of the public in a particular locality, i.e. a subdivision of the general public. In other words, it is not necessary that the intended users be all members of the public; rather, it is the purpose for the taking that must be for the public, and not for the benefit of any particular individuals.

The use (purpose) must be a needed one, which cannot be surrendered without obvious general loss or inconvenience. However, the parameters of such needed public use move along a spectrum, and defy absolute definition because of factors such as changing needs of society, increases in population, and developing modes of transportation and communications.

In Kelo v. City of New Landen (2005), the U.S. Supreme Court was called upon to determine whether that changing parameter was broad enough to include for-profit development of real estate which would ostensibly result in needed economic growth for the community. In a decision that surprised many, the Court agreed.

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