Eminent Domain – Can the Government Condemn My Property?
I’ve received multiple notices from the government in recent months saying it wants to take a portion of my property to build huge, ugly electric transmission lines and towers. Can the government take my property without my consent?
Last week’s column introduced the concept of eminent domain, which is the power held by the government (and other entities authorized by the government) to condemn and force the sale of private property for public purposes. Unfortunately, eminent domain is a concept that many Texas landowners will be forced to learn more about through personal experience. Whether it’s new roads, rail lines, electric transmission lines, or pipelines, as Texas’ population continues to grow, so will the government’s desire to acquire private property to accommodate the growth with infrastructure.
The Fifth Amendment to the U.S. Constitution creates the government’s eminent-domain power. The Fifth Amendment states, “nor shall private property be taken for public use, without just compensation.” According to the U.S. Supreme Court, eminent domain must be “received as a postulate of the Constitution” in order to invest the government with “full and complete power to execute and carry out its purposes.” United States v. Carmack (1946).
The government’s right to take your property is not unfettered. The government must satisfy basic threshold requirements in order to exercise its power of eminent domain. For example, the government must demonstrate that there is a public necessity for the project and that the project will serve a public use. Recent cases, including the U.S. Supreme Court’s 2005 decision in Kelo v. City of New London, have created debate because they expanded the government’s ability to satisfy these requirements and acquire property via exercise of eminent domain, to the detriment of landowners.
The Fifth Amendment protects property owners by forcing the federal government to pay “just compensation” for the property taken. Likewise, Article I, Section 17 of the Texas Constitution guarantees property owners “adequate compensation” when their property is “taken, damaged, or destroyed” for public use. Read future “Common Law” columns to learn more about condemnation procedure and what constitutes “adequate” or “just” compensation under Texas law.
This article appears in October 16 • 2009.