Eminent domain is the power which the government wields over all property in the country in general, and the power to acquire property for a public purpose in particular. The eminent domain law is listed under the Fifth Amendment to the United States constitution. This law is sometimes also delegated to private and public corporations, especially utility companies, so as to enable laying down of lines for telephone, gas, power etc.
According to the eminent domain law, the government is required to compensate the property owner fairly on the basis of the market value of the property.
Although there is some variation in the manner in which the eminent domain law is exercised in different states, generally, the procedure is as follows:
The government representatives approach the property owner, and express their intention to acquire the land for a public purpose. They also try to fix the fair value of the property.
If the owner is unwilling to hand over the property, the following procedure is adopted:
The government goes to court by filing an action to exercise the eminent domain law. The hearing notice is provided to the property owner.
At the hearing, the government must show that negotiations did take place but failed, and also that the property is indeed for lawful public use. The property owner is then allowed to respond.
If the government’s petition succeeds, the procedure to arrive at the fair market value of the property continues. The government obtains title to the property and makes payment. However, if either party is dissatisfied with the outcome of the petition, they have the right to appeal.
The eminent domain law allows several kinds of takings:
All the property is acquired by the government.
If only a part of the property is acquired, the compensation should be not just for the land acquired, but also for the loss in value of the rest of the property.
The property title remains with the owner and he is given back possession of the property at the end of the project.
Under eminent domain law, the authorities can exercise easement or right of way, that is, use the land for laying down cables etc. Meanwhile, the property owner can continue to use his land without interfering with the easement.