Eminent Domain: The Power To Take Private Property For Public Use
a. What is the power of eminent domain? What is condemnation?
The power of eminent domain entitles governmental entities to take private property and convert it to public uses, such as highways, public transportation and schools. Governmental entities exercise their power of eminent domain through condemnation, which is the legal process for the taking of property.
b. Who has the power of eminent domain?
The power of eminent domain resides in federal and state governments. The federal and state governments can delegate the power to lesser entities, such as counties, cities, transportation districts, water districts and school districts. In some instances, the government can delegate its power of eminent domain to private entities, such as railroads and utilities.
For simplicity, this Handbook will refer to governmental takings of property, though the procedures applicable to takings by private entities are generally the same.
c. How much of my property can or must the government take?
The government can take only as much property as it can justify for the particular public use. Similarly, it is not required or permitted to acquire a whole parcel of property if only part of the parcel is necessary for the public use.
d. What is an acceptable public use? Who decides?
The United States Supreme Court has defined what is an acceptable public use very broadly to encompass not only traditional public uses such as roads and schools, but also economic development—i.e., taking property from one private owner and then conveying it to another private owner for the purpose of developing the property in accordance with the development goals of the government. Most states, including Oregon, have narrowed state law on what is an acceptable public use. Ultimately, a judge may be called upon to decide if the desired use of the property by the government meets the public-use standard.