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EMINENT DOMAIN REVISITED

 

These words, the meaning of which we scarcely know, have recently become very familiar to all of us.  Familiar, yes, but what do we know about them?  Is this something new?  Did those who formed our civil government know about this concept?  Is there anything in our Constitution that tells us the answer to that question? And, if so, what did they say in regard to it?  In ARTICLE IV of the Bill of Rights we read:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable....seizures, shall not be violated.

That quote almost immediately, sends a message to our minds that warns us our property could be ‘unreasonably’ taken/seized by unscrupulous persons if we aren't careful!"  Rather scary, isn't it.

What does that have to do with "Eminent Domain"?  Here is the connection:  Eminent domain is "the power to take private property for public use."  (See footnotes 1 & 2 for definitions.)

When any civil unit takes a person’s possessions without their consent to use for something that those in civil government think they have the right to take because "the public" would benefit from it they call it "eminent domain" even though the persons are paid for the property.  Unfortunately, the "taking" without consent" would then have been forced-not voluntary.  Eventually we'll get to the definition of "public" but right now we want to peruse this "eminent domain" issue.  John Locke stated,

Men... in Society having Property, they have such a right to the Goods, which by the Law of the Community are theirs, no Body hath a right to take their Substance or any part of it from them, without their own Consent; without this they have no Property at all.  For I have truly no Property in that, which another can by right take from me, when he pleases against my Consent." (Italics mine, Ed.)

Furthermore, taking something from another without their consent is defined by God as theft: "Thou shalt not steal"-whether it is by one or many.

At issue, also, is the matter of why it is taken.  The word "eminent" in the phrase "eminent domain" indicates that there is a power, higher than the body of the people, that civil bodies may use when those in office think the whole body of the people would benefit.

Example: Everyone can and does use the highways and streets.  The "everyone" is the whole people as opposed to that which respects an individual.  However that may be, the question is: how did those civil servants come to be higher than the people?  Notice they are civil servants.  In fact, I think you will agree with me that only God is a truly "eminent" person.   He does say He has "all power in heaven and in earth!"  Civil servants can only claim they are eminent in the sense that they were delegated by the whole people to act (as an eminent body) for the whole body: the "public" (see footnote 3) for their benefit.

"Public use, in constitutional provisions restricting the exercise of the right to take private property in virtue of eminent domain, means a use concerning the whole community as distinguished from particular individuals"....(it) must be in common, and not for a particular individual. Black’s Law Dictionary, p. 1232.

They would do this, for instance, when a county road is needed.  For example, the Supervisors for a county would take on "eminency" to procure the needed property to build the road.  In the process it might be necessary to use some land owned by an individual in the path of the road.  The supervisors (acting for the people) would contact the owners, explain the need and request that the owner sell a part of the property so the road could be completed.  The owner would then say yes or no and the price would be set-a price, incidentally, that would be satisfactory to the owner.  

In the event that the owner decides not to sell, the supervisors might then claim they had the authority from the people to take the property because the need for the road is essential, the only property suitable is this particular parcel and, as the parcel isn't essential to the welfare of the owner, the supervisors have no alternative but to declare themselves eminent, to declare they have "eminent domain" and must purchase the parcel whether the owner wants to sell or no.  This is the proper way to handle the matter if, indeed, there is no other remedy.

It is easy to see that the reason for the taking of the property was for a public use.  Today the courts are telling folks that property may be taken for a public purpose.  How could that be used to do with property anything the taker desired?  How does that change the whole scenario?  Noah Webster tells us that the word purpose means: "That which a person sets before himself as an object to be reached or accomplished"....  Quite a bit different from the noun "use".

Did our Founders understand how our property must be protected?  Read again Articles IV and V of our Bill of Rights.  Get "You and the Bill of Rights" study manual described on this web site for a broader understanding of that document.  Read what presidential candidate, Mr. Howard Phillips of the Conservative Caucus, said of it.

How is condemnation being done in order to take folks property by eminent domain today?  Read the article describing that process!


FOOTNOTES

1. Eminent domain.  The power to take private property for public use by the state, municipalities, and private persons or corporations authorized to exercise functions of public character.  Housing Authority of Cherokee National of Oklahoma v. Langley, Okl., 555 P.2d 1025, 1028.  Fifth Amendment, U. S. Constitution.  Black’s Law Dictionary, p. 1232.  (Back to article)

2. PUBLIC, a. [L.publicus, from the root of populus, people; that is, people-like.] 1. Pertaining to a nation, state or community; extending to a whole people;...  Thus we say,.. public good, public calamity, public service, public property.  (Webster’s 1828 American Dictionary of the English Language.)  (Back to article)

3. Public, adj. Common to all or many; general, open to common use.  Belonging to the people at large; relating to or affecting the whole people of a state, nation, or community; not limited or restricted to any particular class of the community.  Peacock v. Retail Credit Co., D. C. Ga., 32 F. Supp. 44418, 423.  Public use, in constitutional provisions restricting the exercise of the right to take private property in virtue of eminent domain, means a use concerning the whole community as distinguished from particular individuals....(it) must be in common, and not for a particular individual.  (Emphasis mine, Ed.)  Black’s Law Dictionary, p. 1227.  (Back to article)

 


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