The federal government and state governments have inherently in their existence as governmental units the power of eminent domain. That is the power to acquire from private individuals. private property rights without paying whatever price the owner demands. In exercising eminent domain the government has to pay. But can pay the amount that is determined to be the fair market value of the rights of Tain. As that determination is made by a commission or by a court. And the government need not pay more. Even if the person from whom the government obtains these rights. Wants or values them more highly that's the guts of eminent domain. It's such an inherent right that when the founders of this country and of this state got around to writing constitutions. Do you know play said there is a right of eminent domain what they did is limit the exercise of that right? It was just presumed that the right existed. for example, the Minnesota Constitution says the private property shall not be taken destroyed or damaged. for public use without just compensation there for first paid or secured and the courts of Minnesota have recognized this. As a wrecking constitutional recognition of the inherent governmental authority of eminent domain. Eminent domain as a power of government has been recognized for a very long time. There is some evidence no not conclusive that it goes back to Roman times. That the Roman aqueducts and other large Public Work projects were built on land acquired in part to exercise of an eminent domain type of power. It seems clear to Legal historians. Baby in that the power was recognized in England even before the Magna Carta of 1215. The king there could appropriate private property. for defense of the Kingdom and for his own household use paying some amount but not necessarily what the owner wanted. for that property the power of eminent domain was recognized in the colonies in this country even prior to the revolution. the American colonies used eminent domain Authority to acquire property for roads and for bridge projects. Soon after the revolution the power was extended to Public Utilities. Another words to organize it to a group other than a governmental direct governmental Authority. And again in Minnesota, we find basis for authority of eminent domain from the time that this was a territory. Know when you first start to think about eminent domain it seems to a lot of people rather strange looks like an incursion into private property rights. But actually it's not at all strange to 5 incursions into private property rights in our legal system. We really don't recognize any such thing as an absolute right to private property. For example one person's rights in property are limited by his or her neighbors interest. There are a lot of legal cases that say. you can't run a feedlot in a residential area of a town or You can't run to feed processing facility and this is entirely aside from zoning restriction. Even if there aren't applicable zoning restrictions. The reason I has these operations are too smelly noisy or have too many vibrations and they make it difficult. For the residential neighbors to carry on their lives on their property. And so is a way of adjustment of conflicting rights of Neighbors. The right of one neighbor to use his or her property. If he or she pleases is limited. and sometimes the rights of both neighbors are limited one party can do things that cause some dust but not a lot and the other has to tolerate some dust but not So even between private property owners, there is no such thing as absolute right now these type of private property conflicts occur more in town and cities were greater crowding creates more problems from overlapping or conflicting land uses, but the principal extends to all types of private property ownership. From this it's just another step to say that the government can limit private property rights. Because in a sense the government is a representative of a broader community of Neighbors. Community government local community government represents all the Neighbors in the community and can restrict a person's property interests or use of property as a way of benefiting. The community of neighbors as a whole state government. Represents all the Neighbors in the state and the federal government represents all the Neighbors in the country. Even though most of us don't tend to think of the people in Phoenix is our neighbors. Although sometimes towards the end of a long dragging Minnesota winter. We probably wish we were there Neighbors Okay. So private property in general is not only held subject to interest of individual private neighbors, but it's held subject to control of the Sovereign power. of the government Where the property is located? I know there are really three different ways that government requires interest in private property. One is by the way, you are I obtain interest in some property. We would like or want or have an interest in government can go out and buy it if you were I want to buy a piece of land. We have to go negotiate with the owner and see if we can come to a bargain as to the price will pay and the owner will sell it. The government can also function this way. It needs authorization. If it's the legislature needs constitutional power if it is an administrative agency and needs authorization from the legislature to do so, but having authorization it can go out and purchase. That doesn't create too many problems for us. The second way the government can acquire interest in property is of course eminent domain. Here the government identifies property it wants. needs and well it can and often first those try to go out and bargain if the bargain doesn't work. It can force the owner of that property to sell. Add a price determined through a process that is set by Statute. Minnesota is a court-appointed commission with the chance for review in a jury trial. This is different from the market transaction that the government can enter into or that you were I have to enter into if we want to buy something. Because if we want to buy to a market transaction or the government wants to buy to a market transaction. And we don't like the seller's price then we don't buy or the seller doesn't like the price. We are offering the seller doesn't sell that's not true when you get to govern for eminent domain power. The third way in which the government can acquire rights to your property is through regulation. The government passes a law saying you can't do certain things with your property. Or you must do certain things with your property. And like it or not. You have to observe that. No, actually this isn't the way where the government gets to own your land outright but restricting your land is owning some of the rice in it. Zoning is a prime example of this type of government acquisition of Rights through regulation. When a local government passes a zoning ordinance and classifies a piece of land residential. What the government has done is acquired the right to determine what type of you shall be made of that land and has taken that right away from the private landowner. When the government can acquire such rights through regulation, it doesn't have to pay for them. It gets them free. So that's even a more extensive power than the eminent domain power. Now in many ways it's there for the regulatory Authority. Rather than the eminent domain Authority. That's the hardest to understand. It's the most radical government intrusion on private property because it's an uncompensated intrusion. No, it's not unlimited. You can't go so far through regulation as to actually get possession of the land. Generally courts say you can't go so far as to leave the owner without any reasonable use of the land. But the government can go so far as to drastically affect the value of the land through the regulatory power without paying compensation. The obvious question is why is this permitted? Well, there are a few reasons that are given one is that when your land is regulated other people's land gets regulated to and even if your harm did one time you benefit in the others and it all works out in the end. But for some types of Regulation, that's probably true, but for others, it's not cleared all that. It is the burden of Regulation can fall more heavily on one individual then on others. I think the other part of the reason is that it allows government to be accomplished less expensively. And we don't want to pay the full price. We have a task as a society have made the determination not to pay the full price of all governmental action. And we allowed that of governmental actions as long as they don't go too far in interfering with private property rights as long as they actually don't take away possession of the land or deprive the land of any reasonable value. If it goes that far we call it a taking and the compensation has to be paid. That brings us to eminent domain. And we can ask the same question of eminent domain. Why do we have a legal set up that allows the government to buy land do what is essentially a for sale? I sailed it's different than one between a willing buyer and a willing seller. It's a willing buyer and an unwilling seller whenever condiment Nation proceedings are gone through. Why not make the government bargain with an individual like you are I have to do in all cases. Well, I think there are a couple of reasons for that one is it's a way of preventing an individual from gouging the government. In other words an individual could in bad faith say I know the government needs this piece of land for an important public project and I know the government is over a barrel. I value this piece of land or the easement that the government wants at $100,000. But I'm going to hold out for more because I know that if the government really wants it it will pay me more and it's different than when I'm bargaining with a private party who may not have access to more money because the government always has access to more money. I think it's to prevent this type of activity from being visited on the public really who is behind the government is one of the reasons why there's an eminent domain power. I think there's another reason. Which looks much more individuals who are in perfectly good faith. Who may not want to sell at the price the government is offering not because they're trying to get more money because they simply think they can really don't want to sell either because they value their land very high very very highly or because they don't agree with the project for which their land is going to be needed. especially the ladder in this case eminent domain is a way of preserving. What is broadly called the Democratic process. It keeps one or two or a few landowners. from effectively reversing What A legislature or an agency that is part of the democratic process has decided to do What despite these justifications? There are still problems, of course with the eminent domain power. One is the objection. We hear most often. It interferes with private Probert now at one level the response to that is I've just told you there is no such thing as real absolute private property. The power of eminent domain is inherent in government. So what interferes with something that never was there. Anyway, that's not much of an interference. But on another level when you were I own a piece of land we think of ourselves as really owning it we don't think of it the way legal Scholars think of it as the government having these rights in these potential rights in the neighbors having it in my own little house in my own little piece of land in Minneapolis. I look at it and despite all my legal learning I think of it as my house and my land on which I can do pretty much as I please. The second objection is that the eminent domain Authority will leave some people not fully compensated for what they believe really and truly to be the value of their land. Let's take a couple of pieces of land. Each of which has a fair market value of value appraisers would agree on if that would happen of a hundred thousand dollars. John owns one piece and Mary owns the next if you could look deep into John's heart you'd find out that he also really truly in his guts values his land at $100,000. So if the land is taken from him for that price, he is getting full compensation for what he feels the land is worth. But then you look at Mary the fair market value of her land is $100,000 the objectively determine what most people would think that land is worth. But the land's been in Mary's family for several generations and deep in her heart. She cares about that land a lot. Enter her the value of that land. It's $200,000. You can pick any figure and put it in there. That's what she really thinks about that land is being worth. Through the power of eminent domain that land can be taken from Mary for $100,000. And not fully compensate her for what she really truly feels it's worth. the reason we do that is because at least theoretically we don't trust ourselves to determine when Mary really feels the land is worth $200,000. There's a kind of legal fear that everyone will come up and say the lands were 200,000 to me and we won't be able to distinguish the Mary's of the world to him. It's truly worth that much from the other people to whom it's really worth less. But who are saying it's worth more again the kind of gout in argument. A third problem with eminent domain power is that it may lead to unwise governmental decisions. picture again 10 pieces of land in a row each worth fair market value a hundred thousand dollars There's going to be a road across the land and just for Simplicity sake let's say the whole pack Parcels are going to be condemned. And let's say that each owner of the land. really truly values that land and at $150,000 what this means is that the government can buy the land. Through exercise with eminent domain power for $1000000. Even though the people who own it are sustaining the loss of one and a half million dollars. No, maybe the project is worth somewhere more than a million dollars to the government to the people as a whole but somewhere less than 1 and 1/2 million dollars. If the government has to pay a million for the land, it's going to go ahead with the project cuz it's going to pay a million and it's going to get something and values and more than a million but in reality. It's getting something valued at more at less than 1 and 1/2 million get imposing a cost on people. Of a total of 1 and 1/2 million dollars. I wish I had a Blackboard I could show it more clearly, but what in general what I'm saying is that the government doesn't have to figure the full consequences of its decisions in all cases and this can lead to unwise decision making okay, that's kind of theoretical background of where the power of eminent domain comes from and why we have it and the problems it raises. Let me talk a little bit more about some of the more practical aspects. first of all who can exercises well already said state governments and the federal government. In addition state governments can delegate the authority to local governments. And then they can exercise it. The state can also exercise the delegate the eminent domain Authority. Do private parties by Statute? And this is been John many times. You're all familiar with that. In Minnesota, it's been done for years here in Minnesota in 1857. There was a mill Dam at Which gave a person building a mill Dam on his or her land? Who's damn might raise the water level? So as to damage land others the right to proceed and eminent domain to acquire the rights to the land. That would be so damaged. Railroad companies have long been given the power of eminent domain. And now besides government we also have eminent domain power in a number of private organizations with a public purpose taconite mining companies. crude oil pipeline companies and utilities Generally there have been very few limits on who the government May delegate the eminent domain power to. As long as the person or organization of Corporation to whom its delegated. Is going to use the power for a public purpose. Know what is a public purpose? Whether it's the government exercising eminent domain Authority or a private organization Corporation delegated the power by the government. It must be used for a public purpose. Under eminent domain law. What is a public purpose has traditionally been very broadly. construed there is really a presumption that anytime and body with eminent domain Authority chooses to exercising. The purpose is a public one. Eminent domain Authority has been used for public parks courthouses highways water and sewage pipes storm drainage holding ponds utility service Wetland drainage municipal golf courses slum clearance. If you look at the case log yard decisions of Courts, you find very very few instances of an authority trying to exercise eminent domain Authority or power. And of course saying this isn't a valid public purpose. When it's tortie wants to exercise eminent domain. It has to file a statutory procedures in Minnesota the statute setting out the procedures in general is chapter 117 the Minnesota statutes. Basically an outline the authority must file a petition in District Court in the county where the land is located. the court reviews petition and appoints three Commissioners to appraise damages from the taking. the Commissioners must file a report the petitioner must pay the amount indicated in the report the award. And condemn me the person whose land is being taken has a right of appeal to The District Court. Where can have a jury hear the issue of damages. When a petition is presented to the court the court theoretically or is to review whether the petitioner has Authority whether there's a public purpose. And the court can review whether the condemnation is reasonably necessary to achieve that purpose. In general though. I think I want to impress on you that eminent domain power is a long-standing power of public government. And I think if people were pressed almost everyone would agree that it's a good power for government to have in at least some cases. The really difficult issue is the one of determining win that power should be properly used and that's an issue on which I think the public should have a considerable say in advising and in guiding the Affairs of government.