A Brief History of Eminent Domain

Eminent domain is the power of government to take private property for a public purpose without the owner’s consent. The power of eminent domain is invoked only after every effort is made to acquire property through negotiation with the property owner and only as a last resort. The power of eminent domain is inherent in governmental sovereignty.  It precedes the Constitution and is not constitutionally conferred. Because eminent domain is an inherent attribute of sovereignty, the federal and state constitutional provisions merely place limitations upon its exercise.  The power of eminent domain is further legislatively limited and regulated by the California Eminent Domain Law.

Possibly the earliest known exercise of the power of eminent domain is found in the Bible at 1 Kings XXI. King Ahab sought to acquire Naboth’s vineyard. Upon refusal to sell the subject property, Naboth was stoned to death.

The first known use of the term eminent domain (dominium eminens in Latin) was taken from the legal treatise De Jure Belli ac Pacis, written by the Dutch jurist Hugo Grotius in 1625, who wrote of the power of the state to alienate private property:

…  The property of subjects is under the eminent domain of the state, so that the state or those who act for it may use and even alienate and destroy such property, not only in the case of extreme necessity, in which even private persons have a right over the property of others, but for ends of public utility, to which ends those who founded civil society must be supposed to have intended that private ends should give way. But, when this is done, the state is bound to make good the loss to those who lose their property

(Nichols on Eminent Domain (revised third edition, 1997) § 1.12[1], pages 1–14; Nowak, John E.; Rotunda, Ronald D. (2004). Constitutional Law (Seventh ed.). St. Paul, MN: Thomson West. p. 263.)

While the power of eminent domain was well established in England before the American revolution for highway acquisitions, the adjudication of the “recompense” appears to have been determined in a proceeding wherein the property owner had no opportunity to be heard (an ex parte proceeding). (Nichols on Eminent Domain (revised third edition, 1997) § 1.12[3], pages 1–74.)

Much of California’s eminent domain law has its origins after World War II when public construction programs boomed and eminent domain trials became commonplace in the courtroom.  Because no piece of legislation can cover every factual situation which may arise and because the legislature left to “judicial development” some provisions of the law, the law of eminent domain continues to evolve.

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  1. Gideon Kanner says:

    You missed the second eminent domain case in the Bible — King David’s acquisition of Ornan’s threshing floor as the site of the Ark of the Covenant selected by the Lord. Ornan, fearing the fate of Naboth, offered to give his land to the King gratis. But David refused the offer — he would not take it without payment — and paid Ornan 600 shekels in gold.

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