The legality of eminent domain goes all the way back to the Roman Empire. However, American law has recognized the right of eminent domain as an inherent power that precedes any government statute and even the Constitution. The recognition that the courts have given eminent domain is important to note in both the federal context and state context.
Under Federal Law, the United States Supreme Court first recognized the ability of the Federal government to exercise eminent domain in Kohl v. United States. In that case, the Federal government exercised its right of eminent domain to condemn property for use as a custom house and post office. The Court in that case stated that eminent domain for public use is “essential to its independent existence and perpetuity.”
The Court, a few years later in Boom Co. v. Patterson, also confirmed the Federal government’s right to exercise eminent domain. In that case, the United States Supreme Court stated that the eminent domain “requires no constitutional recognition; it is an attribute of sovereignty.” The Federal government’s ability to exercise eminent domain is an inherent right that has gone unquestioned by the courts although challenged by property owners.
The states have a similar basis for exercising eminent domain. In North Carolina, the power of eminent domain is considered an inherent right that the state may exercise for the public benefit. The North Carolina Supreme Court stated in State v. Core Banks Club Properties, Inc. that, “The right to take private property for public use, the power of eminent domain, is one of the prerogatives of a sovereign state. The right is inherent in sovereignty; it is not conferred by constitutions.” This is a similar concept to the Federal government’s ability to exercise eminent domain.
However, since the government is sovereign, the government can confer on other entities the ability to exercise eminent domain. In North Carolina, the General Assembly has passed laws that allow specific private entities to exercise eminent domain. Therefore, the private entities may exercise eminent domain because the government has the right to exercise it.