PUBLIC USE

The "taking" clause of the Fifth Amendment limits the power of eminent domain by demanding that governmental taking of private property be for a public use. The Supreme Court held in Burlington Quincy Railroad Co. v. Chicago, (1897) that the same requirement applies to the states through the fourteenth amendment.

Although some early decisions defined the public use standard to include a right of "use by the public," that approach was repudiated by the Court. As early as 1905 in Clark v. Nash, the Court held that a state could authorize a private person to condemn an easement for irrigation across a neighbor's land. "What is a public use," said the Court, "may frequently and largely depend upon the facts surrounding the subject." In the arid environment of Utah, the taking of a private irrigation easement could properly be deemed a public use, because it was "absolutely necessary" to agricultural development. On similar grounds, the Court's decision in Strickley v. Highland Boy Gold Mining Co. (1906) sustained the statutory authority of a mining company to condemn a private easement for transporting ore to a railroad loading site. These decisions were followed by many others intimating that any use conducive to the public benefit was a public use for which eminent domain could be invoked, including reclamation of swamp lands, establishment of water and electrical power systems, development of transportation facilities, and creation of public parks.

The broad public benefit test has, in recent years, been assimilated with the rational basis approach invoked by the Supreme Court in reviewing regulations of economic interests under the due process clause. In the leading case, Berman v. Parker (1954), the court sustained the use of eminent domain to acquire various separate parcels of private property in blighted areas in furtherance of a community redevelopment project. The fact that the property to be condemned would be resold or leased to private persons for redevelopment purposes did not transgress the public use limitation, for "when the legislature has spoken, the public interest has been declared in terms well-nigh conclusive. In such cases the legislature, not the judiciary, is the main guardian of the public needs to be served.… The concept of the public welfare is broad and inclusive."

Under this expansive and deferential approach, eminent domain may be exercised as a means for achieving practically any use or objective within the power of the legislative body.

Arvo Van Alstyne
(1986)

Bibliography

Nichols, Perry 1983 The Law of Eminent Domain, Vol. 2a. New York: Matthew Bender & Co.