Eminent Domain: Public Use Requirement

When the government needs to seize property to extend a railroad route or build a new interstate freeway, it must do so within the legal confines of eminent domain law. The "Takings Clause" of the Fifth Amendment allows the government to take private property only if the taking is for public use. But the limits of what's considered "public use" for eminent domain claims are often tested in the courts, including a high-profile 1980 case in which the City of Oakland tried to seize the Raiders National League Football team (the city lost and the owner was free to move the team).

In other cases, courts have sided with government takings of private property to facilitate private developments considered important to economic development. Eminent domain's public use requirement has been a moving target, as we discuss below.

Eminent Domain and Public Use: Definition

A public use is generally one which confers some benefit or advantage to the public. We typically think of freeways and other public-use infrastructure projects. However, the term doesn't necessarily imply -- and is not confined to -- direct "use" by the public.

Instead, 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's not necessary that the intended users be all members of the public; rather, it's the purpose for the taking that must be for the public, and not for the benefit of any particular individuals.

Public Use and Challenges to Eminent Domain

The U.S. Supreme Court first heard a case challenging eminent domain in 1876 (Kohl v. United States) when a private landowner rejected the government's attempt to condemn land for use as a post office and custom house. The government prevailed. Two decades later, the Court heard another (again unsuccessful) claim by a railroad company disputing the taking of land on the site of the Gettysburg Battlefield for preservation as a historical site.

More recent eminent domain disputes of the public use requirement have involved takings in which private interests benefit, or are perceived to be having some benefit detrimental to or at the expense of the public. Other disputes tend to involve the "just compensation" requirement of the Takings Clause.

Eminent Domain, Public Use, and Private Interests

The use (purpose) must be a needed one, which can't be surrendered without obvious general loss or inconvenience. However, the parameters of such needed public use 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 London (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.

Although private interests did benefit from the plan, the Court justified its holding on the basis that the development plan fit within the city's broader economic development plans:

"Because that plan unquestionably serves a public purpose, the takings challenged here satisfy the Fifth Amendment," Justice Stevens wrote.

Confused About Eminent Domain's Public Use Requirement? Call a Lawyer

If the government is claiming eminent domain in its attempt to seize your home or other property, they must prove that it's for the public use and compensate you fairly for the property. If you have more questions or need legal representation, reach out to a local eminent domain attorney near you today.

Next Steps

Contact a qualified real estate to help you navigate land use issues including zoning, easements and eminent domain.

Help Me Find a Do-It-Yourself Solution