Why is Eminent Domain Legal?

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.

Our firm focuses on three practice areas: Disability, Personal Injury, and Eminent Domain. Every practice area has attorneys who have expertise in their respective area of practice. 

Chad Brown is a North Carolina Board Certified Social Security disability law specialist. Mr. Brown helps Social Security disability claimants at all stages of the disability process. He also works with people that have Long Term Disability denials and with people that are injured by drugs and defective medical products.

Your Questions Answered

Can Eminent Domain Take Your House?

The question assumes that eminent domain is a person or entity that can do something. Eminent domain is a tool, not an entity or person. It is analogous to a specific type of wrench that allows a mechanic to perform a specific task. The idea that the government may...

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Can Eminent Domain Be Used for Private Use?

Although to some it might seem inherently wrong for the government to take a private citizen’s property and give it to a private entity, that can indeed happen. The United States Supreme Court in Kelo v. New London, a landmark Supreme Court case in 2005, established...

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Can Eminent Domain be Stopped?

When challenging an action for eminent domain, the property owner generally has two avenues. The two avenues that can be used to stop or challenge a taking are found in the Fifth Amendment of the United States Constitution. First, the property owner can challenge the...

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