Editing Eminent domain

{{Short description|Legal power of a government to take private property for public use}}
[[File:Three Gorges Dam 2015-07-25.jpg|thumb|421x421px|The construction of the [[Three Gorges Dam]] in China led to the displacement of over 1.3 million people, highlighting the potential social and environmental costs of large-scale development projects using eminent domain.<ref>{{Cite news |title=Thousands being moved from China's Three Gorges - again |url=https://www.reuters.com/article/business/environment/thousands-being-moved-from-chinas-three-gorges-again-idUSBRE87L0ZX/ |archive-url=http://web.archive.org/web/20241203190140/https://www.reuters.com/article/business/environment/thousands-being-moved-from-chinas-three-gorges-again-idUSBRE87L0ZX/ |archive-date=2024-12-03 |access-date=2025-01-16 |work=Reuters |language=en-US}}</ref><ref>{{Cite journal |last1=Jackson |first1=Sukhan |last2=Sleigh |first2=Adrian |date=2000 |title=Resettlement for China's Three Gorges Dam: socio-economic impact and institutional tensions |url=https://www.jstor.org/stable/48609389 |journal=Communist and Post-Communist Studies |volume=33 |issue=2 |pages=223–241 |doi=10.1016/S0967-067X(00)00005-2 |jstor=48609389 |issn=0967-067X|url-access=subscription }}</ref>]]
{{Use dmy dates|date=December 2022}}

{{other uses|Eminent Domain (disambiguation){{!}}Eminent Domain}}

'''Eminent domain''',{{efn|United States, Philippines, Liberia}} also known as '''land acquisition''',{{efn|India, Malaysia,<ref>{{cite web |title=Land Acquisition |url=https://www.jpph.gov.my/V2/pdf/Land_Aquisition.pdf |access-date=19 October 2018}}</ref><ref>{{cite web |title=Land acquisition's chequered history |url=https://www.thestar.com.my/news/nation/2017/07/30/land-acquisitions-chequered-history/ |work=The Star |date=30 July 2017 |access-date=19 October 2018}}</ref> Singapore}} '''compulsory purchase''',{{efn|United Kingdom}} '''resumption''',{{efn|Hong Kong and Uganda}} '''resumption'''/'''compulsory acquisition''',{{efn|Australia, Barbados, New Zealand, Ireland}} or '''expropriation''',{{efn|Canada and South Africa}} is the compulsory acquisition of [[private property]] for [[public use]]. It does not include the power to take and transfer ownership of private property from one property owner to another private property owner without a valid public purpose.<ref>{{Cite book|title=Encyclopedia of the City|last=Caves|first=R. W.|publisher=Routledge|year=2004|page=216}}</ref> This power can be legislatively delegated by the state to municipalities, government subdivisions, or even to private persons or corporations, when they are authorized to exercise the functions of public character.<ref>{{cite journal |last1=Saxer |first1=Shelley Ross |title=Government Power Unleashed: Using Eminent Domain to Acquire a Public Utility or Other Ongoing Enterprise |journal=Indiana Law Review |date=2005 |volume=38 |issue=55 |page=55}}</ref>

The most common uses of property taken by eminent domain have been for roads, government buildings and [[public utility|public utilities]]. Many [[railroad]]s were given the right of eminent domain to obtain land or [[easement]]s in order to build and connect rail networks. In the mid-20th century, a new application of eminent domain was pioneered, in which the government could take the property and transfer it to a private third party for redevelopment. This was initially done only to a property that had been deemed "blighted" or a "development impediment", on the principle that such properties had a negative impact upon surrounding property owners, but was later expanded to allow the taking of any private property when the new third-party owner could develop the property in such a way as to bring in increased tax revenues to the government.

Some jurisdictions require that the taker make an offer to purchase the subject property, before resorting to the use of eminent domain. However, once the property is taken and the judgment is final, the condemnor owns it in [[fee simple]], and may put it to uses other than those specified in the eminent domain action.

Takings may be of the subject property in its entirety (total take) or in part (part take), either quantitatively or qualitatively (either partially in fee simple or, commonly, an easement, or any other interest less than the full fee simple title).

==Meaning==
{{refimprove|section|date=November 2023}}

The term "eminent domain" was taken from the legal treatise ''[[De jure belli ac pacis]]'' (''On the Law of War and Peace''), written by the [[Netherlands|Dutch]] [[jurist]] [[Hugo Grotius]] in 1625,<ref>{{cite book |first1=John E. |last1=Nowak |first2=Ronald D. |last2=Rotunda |title=Constitutional Law |publisher=Thomson West |location=St. Paul, MN |year=2004 |page=263 |edition=Seventh |isbn=0-314-14452-8}}</ref> which used the term {{lang|la|[[dominium]] eminens}} ([[Latin]] for "supreme ownership") and described the power as follows:
<blockquote>The property of subjects is under the eminent domain of the state, so that the state or those who act for it may use and even alienate and destroy such property, not only in the case of extreme necessity, in which even private persons have a right over the property of others, but for ends of public utility, to which ends those who founded civil society must be supposed to have intended that private ends should give way. But, when this is done, the state is bound to make good the loss to those who lose their property.</blockquote>

The exercise of eminent domain is not limited to [[real property]]. Condemnors may also take personal property,<ref>{{Cite book|url=https://books.google.com/books?id=7U2pK0Y69oQC&q=%22eminent+domain%22++%22personal+property%22&pg=PA63|title=Evicted! Property Rights and Eminent Domain in America: Property Rights and Eminent Domain in America|last=Schultz|first=David|date=2009-12-22|publisher=ABC-CLIO|isbn=9780313353451|language=en}}</ref>{{where|date=January 2019}} even intangible property such as [[contract]] rights, [[patent]]s, [[trade secret]]s, and [[copyright]]s.<ref>{{Cite news|last=Diles|first=Mitchell|title=Condemning Clothes: The Constitutionality of Taking Trademarks in the Professional Sports Franchise Context|work=Washington and Lee University School of Law|url=https://scholarlycommons.law.wlu.edu/cgi/viewcontent.cgi?article=1043&context=wlulr-online}}</ref> Even the taking of a [[Professional sports|professional]] [[sports team]]'s franchise has been held by the [[California Supreme Court]] to be within the purview of the "public use" constitutional limitation, although eventually, that taking (of the [[Oakland Raiders]]' [[NFL]] franchise) was not permitted because it was deemed to violate the interstate commerce clause of the U.S. Constitution.<ref>{{cite web |url=http://online.ceb.com/calcases/C3/32C3d60.htm |title=City of Oakland v. Oakland Raiders (1982) 32 C3d 60 |website=Online.ceb.com |access-date=2016-08-08}}</ref>

A taking of property must be accompanied by payment of "just compensation" to the [former] owner. In theory, this is supposed to put the owner in the same position {{linktext|pecuniarily}} that he would have been in had his property not been taken. But in practice courts{{where|date=January 2019}} have limited compensation to the property's fair market value, considering its highest and best use. But though rarely granted, this is not the exclusive measure of compensation; see ''[[Kimball Laundry Co. v. United States]]'' (business losses in temporary takings) and ''United States v. Pewee Coal Co.'' (operating losses caused by government operations of a mine seized during World War II). In most takings owners are not compensated for a variety of incidental losses caused by the taking of their property that, though incurred and readily demonstrable in other cases, are deemed by the courts{{where|date=January 2019}} to be noncompensable in eminent domain. The same is true of attorneys' and appraisers fees. But as a matter of legislative grace rather than constitutional requirement some of these losses (e.g., business goodwill) have been made compensable by state legislative enactments, and in the U.S. may be partially covered by provisions of the federal [[Uniform Relocation Assistance and Real Property Acquisition Act (1970)|Uniform Relocation Assistance Act]].

==Africa==
===Zimbabwe===
Since the 1990s, the [[Zimbabwe]]an government under [[Robert Mugabe]] has seized a great deal of land and homes of mainly white farmers in the course of the [[Land reform in Zimbabwe|land reform movement in Zimbabwe]]. The government argued that such land reform was necessary to redistribute the land to Zimbabweans dispossessed of their lands during [[colonialism]]. These farmers were never compensated for this seizure.<ref>Dancaescu, Nick. Note. Land reform in Zimbabwe. 15 Fla. J. Int'l L. 615 (2003).</ref>

==Asia==

=== China ===
In [[China]], "requisitions", the Chinese form of eminent domain, are constitutionally permitted as necessary for the public interest, and if compensation is provided. The 2019 Amendment of the Land Administration Law of China spells out rather detailed guidelines, guaranteeing farmers and those displaced greater financial security.<ref>{{cite journal |last1=Arya J. |first1=Taghdiri |title=A Comparative Perspective of Eminent Domain Laws in the United States & China |journal=Tsinghua China Law Review |date=December 20, 2019 |volume=12:115 |issue=12 |pages=115–141 |url=http://www.tsinghuachinalawreview.org/articles/PDF/TCLR_1201_Taghdiri.pdf|archive-url=https://web.archive.org/web/20210826112941/http://www.tsinghuachinalawreview.org/articles/PDF/TCLR_1201_Taghdiri.pdf |archive-date=26 August 2021 }}</ref>

=== India ===
{{Main|Land Acquisition in India|The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013}}
The [[Constitution of India]] originally provided for the [[Fundamental rights in India|Fundamental]] [[Right to property]] under Articles 19 and 31. Article 19 guaranteed to all citizens the right to "acquire, hold and dispose of property". Article 31 provided that "No person shall be deprived of his property save by authority of law." It also provided that compensation would be paid to a person whose property had been "taken possession of or acquired" for public purposes. In addition, both the state government as well as the union (federal) government were empowered to enact laws for the "acquisition or requisition of property" (Schedule VII, Entry 42, List III). It is this provision that has been interpreted as being the source of the state's "eminent domain" powers.<ref>{{cite web |url=http://openarchive.in/judis/1119.htm |title=THE STATE OF BIHAR v. MAHARAJADHIRAJA SIR KAMESHWAR SINGHOF DARBHANGA AND OTHERS |access-date=2008-10-15 |url-status=dead |archive-url=https://web.archive.org/web/20110721180417/http://openarchive.in/judis/1119.htm |archive-date=2011-07-21 }}</ref>

The provisions relating to the right to property were changed a number of times. The [[forty-fourth Amendment of the Constitution of India|44th]] [[Constitution of India#Amendments|amendment]] of 1978 deleted the right to property from the list of Fundamental Rights.<ref name="44amact">{{cite web |url=http://indiacode.nic.in/coiweb/amend/amend44.htm |title=The Constitution (Amendment) |website=Indiacode.nic.in |access-date=2016-08-08}}</ref> A new article, Article 300-A, was added to the constitution to provide, "No person shall be deprived of his property save by authority of law." Thus, if a legislature makes a law depriving a person of his property, it will not be unconstitutional. The aggrieved person shall have no right to move the court under Article 32. Thus, the right to property is no longer a fundamental right, though it is still a constitutional right. If the government appears to have acted unfairly, the action can be challenged in a court of law by citizens.<ref name="pgA33">Tayal, B.B. & Jacob, A. (2005), ''Indian History, World Developments and Civics'', p. A-33</ref>

Land acquisition in India is currently governed by the [[Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013]], which came into force on 1 January 2014.<ref name=LARR2011>{{cite web |title=The Land Acquisition, Rehabilation and Resettlement Bill, 2011 – Full Text of Bill |publisher=Ministry of Rural Development, Government of India |url=http://rural.nic.in/latest/bill_chapter_07092011_E.pdf/ |access-date=2014-01-07 |archive-date=2016-03-04 |archive-url=https://web.archive.org/web/20160304044800/http://rural.nic.in/latest/bill_chapter_07092011_E.pdf/ |url-status=dead }}</ref> Until 2013, land acquisition in India was governed by [[Land Acquisition Act, 1894|Land Acquisition Act of 1894]].<ref>{{cite journal |last1=Bhattacharyya |first1=Debjani |title=The history of eminent domain in colonial thought and legal practice, Special Section Artic… 9 Pages The history of eminent domain in colonial thought and legal practice |journal=Economic and Political Weekly |date=2015 |volume=50 |issue=50 |url=https://www.academia.edu/17572189 }}{{Dead link|date=September 2023 |bot=InternetArchiveBot |fix-attempted=yes }}</ref> However the new LARR (amendment) ordinance 31 December 2014 diluted many clauses of the original act.<ref>{{cite web |url=http://www.prsindia.org/uploads/media/Ordinances/RTFCTLARR%20Ordinance%202014.pdf |title=The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Amendment) Ordinance |date=2014 |website=Prsindia.irg |access-date=2016-08-08 |archive-date=10 February 2015 |archive-url=https://web.archive.org/web/20150210123705/http://www.prsindia.org/uploads/media/Ordinances/RTFCTLARR%20Ordinance%202014.pdf |url-status=dead }}</ref>
The liberalisation of the economy and the Government's initiative to set up special economic zones have led to many protests by farmers and have opened up a debate on the reinstatement of the fundamental right to private property.<ref>{{cite news |url=http://timesofindia.indiatimes.com/India/Should-right-to-property-return/articleshow/4202212.cms |work=[[The Times of India]] |first1=Dhananjay |last1=Mahapatra |title=Should right to property return? |date=28 February 2009}}</ref>

==Europe==
In many European nations, the [[European Convention on Human Rights]] provides protection from an appropriation of private property by the state. Article 8 of the Convention provides that "Everyone has the right to respect for his private and family life, his home, and his correspondence" and prohibits interference with this right by the state, unless the interference is in accordance with law and necessary in the interests of [[national security]], public safety, economic well-being of the country, prevention of disorder or crime, protection of health or morals, or protection of the rights and freedoms of others. This right is expanded by Article 1 of the [[European Convention on Human Rights#toc|First Protocol]] to the Convention, which states that "Every natural person or legal person is entitled to the peaceful enjoyment of his possessions." Again, this is subject to exceptions where state deprivation of private possessions is in the general or [[public interest]], is in accordance with law, and, in particular, to secure payment of [[tax]]es. Settled case-law of the European Court of Human Rights (ECtHR) provides that just compensation has to be paid in cases of expropriation.<ref>See ''[[James v United Kingdom]]'', decision of ECtHR dated by 21 February 1986, para 54.</ref>

===France===
In [[France]], the [[Declaration of the Rights of Man and of the Citizen]] similarly mandates just and preliminary compensation before expropriation; and a {{lang|fr|[[déclaration d'utilité publique]]}} is commonly required, to demonstrate a public benefit.

Notably, in 1945, by decree of General [[Charles de Gaulle]] based on untried<ref name="shame" /> accusations of collaboration with the Nazi occupier, the [[Renault]] company was expropriated from [[Louis Renault (industrialist)|Louis Renault]] posthumously and nationalised as {{lang|fr|Régie Nationale des Usines Renault|italic=no}},<ref name="shame">{{cite news |title=Louis Renault and the shame of a nation |work=The Daily Telegraph |first=Ian |last=Morton |date=14 May 2005 |url=https://www.telegraph.co.uk/motoring/2735296/Louis-Renault-and-the-shame-of-a-nation.html |location=London}}</ref> without compensation.<ref name="ogre">{{cite magazine |title=Foreign News: Was He Murdered? |magazine=[[Time (magazine)|Time]] |date=February 6, 1956 |url=http://www.time.com/time/magazine/article/0,9171,893292,00.html|archive-url=https://web.archive.org/web/20081214123926/http://www.time.com/time/magazine/article/0,9171,893292,00.html|url-status=dead|archive-date=December 14, 2008}}</ref>

===Germany===
The [[Basic Law for the Federal Republic of Germany]] states in its Article 14 (3) that "an expropriation is only allowed for the public good"<ref>{{cite web |url=https://www.gesetze-im-internet.de/englisch_gg/englisch_gg.html#p0083 |title=Basic Law for the Federal Republic of Germany: Article 14: Property – Inheritance – Expropriation |website=Gesetze im Internet |location=Germany |publisher=Federal Ministry of Justice |access-date=2023-03-04}}</ref> and just compensation must be made. It also provides for the right to have the amount of the compensation checked by a court.

===Italy===
[[File:Espropria graffiti in Turin October 2016.jpg|thumb|{{lang|it|Espropria}}, "expropriate", protest graffiti in [[Turin]]]]
{{lang|it|Esproprio}} – or more formally {{lang|it|espropriazione per pubblica utilità}} ("expropriation for public utility") – in [[Italy]] takes place within the frame of [[Civil law (area)|civil law]], as an expression of the {{lang|it|potere ablatorio}} ({{linktext|ablative}} power). The law regulating expropriation is the D.P.R. n.327 of 2001,<ref>{{cite web |url=http://www.camera.it/parlam/leggi/deleghe/01325dla.htm |title=D.P.R. 327/2001 |website=Camera.it |access-date=2016-08-08}}</ref> amended by D.Lgs. n.302 of 2002;<ref>{{cite web |url=http://www.parlamento.it/parlam/leggi/deleghe/02302dl.htm |title=Dlgs 302/2002 |website=Parlamento.it |access-date=2016-08-08}}</ref> it supersedes the old expropriation law, the Royal Decree n.2359 of 1865. Also other national and regional laws may apply, not always giving full compensation to the owner.<ref>In other countries (France, Germany, Great Britain, Germany) is provided fair compensation according to the free market value both for regular expropriations or for absolutely unlawful occupations: {{cite journal |last1=Buonomo |first1=Giampiero |title=Occupazione acquisitiva: nodo irrisolto nonostante le modifiche al Testo unico |journal=Diritto&Giustizia Edizione Online |date=2003 |url=https://www.questia.com/projects#!/project/89339045 |access-date=2016-03-28 |archive-date=2016-03-24 |archive-url=https://web.archive.org/web/20160324160801/https://www.questia.com/projects#!/project/89339045 |url-status=dead }}</ref> Expropriation can be total (the whole property is expropriated) or partial; permanent or temporary.

The article 42 of the [[Constitution of Italy|Italian Constitution]] and the article 834 of the [[Law of Italy|Italian Civil Code]] state that any private goods can be expropriated for public utility. Furthermore, the article 2 of the Constitution binds Italian citizens to respect their "mandatory duties of political, economic and social solidarity".

The implementation of the eminent domain follows two principles:<ref>{{Cite book|title=Manuale pratico dell'espropriazione|last1=Assini |first1=N. |last2=Tescaroli |first2=N. |year=2003|location=Padua}}</ref>
* legality: a public institution can expropriate private goods only in the cases law allows it and respecting its procedures (following article 23 of the [[Constitution of Italy|Italian Constitution]]);
* compensation: (art. 42/III) the State must provide a certain amount of money as compensation, which is determined by law. According to the [[Constitutional Court of Italy|Italian Constitutional Court]], this compensation is not required to be equal to the market value of the expropriated good, although this sum must not be merely symbolic.
{{lang|it|Nazionalizzazione}} ("nationalization"), instead, is provided for by article 43 of the Constitution; it transfers to governmental authority and property a whole industrial sector, if it is deemed to be a natural or de facto [[monopoly]], and an essential service of public utility. The most famous nationalization in Italy was the [[Enel|1962 nationalization of the electrical power sector]].

===Spain===
Article 33.3 of the [[Spanish Constitution of 1978]] allows forced expropriation ({{lang|es|expropiación forzosa}}) only where justified on the grounds of public utility or social interest and subject to the payment of appropriate compensation as provided for in law.<ref>[http://www.congreso.es/consti/constitucion/indice/titulos/articulos.jsp?ini=33&tipo=2 Spanish Constitution of 1978], Art 33 part 3. Congress of Deputies.</ref>

===Sweden===
The right of the state or a municipality to buy property when it is determined to be of "particular public interest" is regulated in {{lang|sv|Expropriationslagen}} (1972:719).<ref>{{cite web |url=https://lagen.nu/1972:719 |title=Expropriationslag (1972:719) (ExprL) |publisher=Lagen.nu |access-date=2016-08-05}}</ref> The government purchases the property at an estimated market value plus a 25% compensation. The law also states that the property owner shall not suffer economic harm because of the expropriation.

===United Kingdom===

====England and Wales====
{{main|Compulsory purchase in England and Wales}}
After his victory in 1066, [[William the Conqueror]] seized virtually all land in England. Although he maintained absolute power over the land, he granted [[fief]]s to landholders who served as stewards, paying fees and providing military services. During the [[Hundred Years' War]] in the 14th century, [[Edward III of England|Edward III]] used the Crown's right of [[purveyance]] for massive expropriations. Chapter 28 of [[Magna Carta]] required that immediate cash payment be made for expropriations. As the king's power was broken down in the ensuing centuries, tenants were regarded as holding ownership rights rather than merely possessory rights over their land. In 1427, a statute was passed granting commissioners of sewers in [[Lincolnshire]] the power to take land without compensation. After the early 16th century, however, Parliamentary takings of land for roads, bridges, etc. generally did require compensation. The common practice was to pay 10% more than the assessed value. However, as the voting franchise was expanded to include more non-landowners, the bonus was eliminated. In spite of contrary statements found in some American law, in the United Kingdom, compulsory purchase valuation cases were tried by juries well into the 20th century, such as ''[[Attorney-General v De Keyser's Royal Hotel Ltd]]'' (1919).

In [[England and Wales]], and other jurisdictions that follow the principles of [[English law]], the related term compulsory purchase is used. The landowner is compensated with a price agreed or stipulated by an appropriate person. Where agreement on price cannot be achieved, the value of the taken land is determined by the [[Upper Tribunal]]. The operative law is a patchwork of statutes and case law. The principal acts are the [[Lands Clauses Consolidation Act 1845]] ([[8 & 9 Vict.]] c. 18),<ref>{{Cite legislation UK |type=act |year=1845 |chapter=18 |act=Land Clauses Consolidation Act 1845}}</ref> the [[Land Compensation Act 1961]], the [[Compulsory Purchase Act 1965]], the [[Land Compensation Act 1973]],<ref>{{Cite legislation UK |type=act |year=1973 |chapter=26 |act=Land Compensation Act 1973}}</ref> the [[Acquisition of Land Act 1981]], part IX of the [[Town and Country Planning Act 1990]], the [[Planning and Compensation Act 1991]], and the [[Planning and Compulsory Purchase Act 2004]].

==== Scotland ====
{{main|Compulsory purchase laws in Scotland}}
In [[Scotland]], eminent domain is known as compulsory purchase. The development of powers of compulsory purchase originated in the [[Railway Mania|railway mania]] of the [[Victorian era|Victorian period]].<ref>[[Scottish Law Commission]], ''Discussion Paper on Compulsory Purchase'' (2014, SLC DP No: 159).</ref> Compensation is available to the landowner, with the [[Lands Tribunal for Scotland]] dealing with any disputes arising from the value of compensation.<ref>{{Cite legislation UK |type=act |year=1963 |chapter=51 |act=Land Compensation (Scotland) Act 1963 |section=8}}</ref> As in England and Wales, the law of compulsory purchase in Scotland is complex. The [[Compulsory purchase laws in Scotland#Current Legislation|current statutes]] regulating compulsory purchase include: the [[Lands<!--sic--> Clauses Consolidation (Scotland) Act 1845]] ([[8 & 9 Vict.]] c. 19);<ref>{{Cite legislation UK |type=act |year=1845 |chapter=19 |act=Lands Clauses Consolidation (Scotland) Act 1845}}</ref> the [[Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947]];<ref>{{Cite legislation UK |type=act |year=1947 |chapter=42 |act=Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947}}</ref> and the [[Land Compensation (Scotland) Act 1963]].<ref>{{Cite legislation UK |type=act |year=1963 |chapter=51 |act=Land Compensation (Scotland) Act 1963}}</ref> The [[Scottish Law Commission]] considered the current state of the law of compulsory purchase and advocated reforms in its ''Discussion Paper on Compulsory Purchase''. Such reforms have yet to be made by the [[Scottish Parliament]].<ref>[[Scottish Law Commission]], ''[https://www.scotlawcom.gov.uk/publications/discussion-papers-and-consultative-memoranda/2010-present/ Discussion Paper on Compulsory Purchase]'' (2014, SLC DP No: 159).</ref>

== Oceania ==

===Australia===
{{Main|Section 51(xxxi) of the Australian Constitution}}

In Australia, section 51(xxxi) of the [[Constitution of Australia|Australian Constitution]] permits the [[Parliament of Australia|Commonwealth Parliament]] to make laws with respect to "the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws."<ref>{{cite web |url=http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/s51.html/ |title=COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT - SECT 51 Legislative powers of the Parliament &#91;see Notes 10 and 11&#93; |access-date=2009-09-24 |url-status=dead |archive-url=https://web.archive.org/web/20090411044012/http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/s51.html |archive-date=2009-04-11 }}</ref> This has been construed as meaning that just compensation may not always include monetary or proprietary recompense, rather it is for the court to determine what is just. It may be necessary to imply a need for compensation in the interests of justice, lest the law be invalidated.<ref>{{cite web |url=http://www.austlii.edu.au/au/cases/cth/HCA/1941/20.html/ |title=''Andrews v Howell'' (1941) 65 CLR 255 |website=Austlii.edu.au |access-date=2016-08-08}}</ref>

Property subject to resumption is not restricted to real estate as authority from the [[Federal Court of Australia|Federal Court]] has extended the states' power to resume property to any form of physical property.{{Citation needed|date=September 2009}} For the purposes of section 51(xxxi), money is not property that may be compulsorily acquired.{{Citation needed|date=September 2009}}

The Commonwealth must also derive some benefit from the property acquired, that is, the Commonwealth can "only legislate for the acquisition of Property for particular purposes".<ref>Australian Constitutional Commission, ''Final Report of the Constitutionali Commission'' vol 1 (Canberra: Australian Government Publishing Service, 1988): 600. {{ISBN|0-644-06897-3}}.</ref> Accordingly, the power does not extend to allow legislation designed merely to seek to extinguish the previous owner's title.{{citation needed|date=July 2017}} The states and territories' powers of resumption on the other hand are not so limited. The section 43(1) of the Lands Acquisition Act 1998 (NT) grants the Minister the power to acquire land 'for any purpose whatever'.<ref>{{cite web |url=http://www.austlii.edu.au/au/legis/nt/consol_act/laa192/s43.html/ |title=LANDS ACQUISITION ACT - SECT 43 Acquisition generally |access-date=2011-01-14 |url-status=dead |archive-url=https://web.archive.org/web/20150423143837/http://www.austlii.edu.au/au/legis/nt/consol_act/laa192/s43.html |archive-date=2015-04-23 }}</ref> The High Court of Australia interpreted this provision literally, relieving the Territory government of any public purpose limitation on the power.<ref>{{cite web |url=http://www.austlii.edu.au/au/cases/cth/HCA/2008/20.html/ |title=Griffiths v Minister for Lands, Planning and Environment [2008&#93; HCA 20 (15 May 2008) |website=Austlii.edu.au |access-date=2016-08-08}}</ref> This finding permitted the Territory government to acquire land subject to Native Title, effectively extinguishing the Native Title interest in the land. Kirby J in dissent, along with a number of commentators, viewed this as a missed opportunity to comment on the exceptional nature of powers of resumption exercised in the absence of a public purpose limitation.<ref>{{Cite journal |last=Reale |first=Andreana |title=Assisted Theft: Compulsory land acquisition for private benefit in Australia and the US |journal=Alternative Law Journal |volume=34 |issue=3 |pages=147–51 |publisher=Legal Service Bulletin Co-operative Ltd |location=Melbourne |year=2009 |doi=10.1177/1037969X0903400301 |s2cid=152726985 |url=http://www.altlj.org/index.php?option=Articles&task=viewarticle&artid=69#1|url-access=subscription }}</ref>

The term ''resumption'' is a reflection of the fact that, as a matter of Australian law, all land was originally owned by [[the Crown]] before it was sold, leased or granted<ref>Samantha J. Hepburn, ''Principles of Property Law'', 2nd ed. (Newport, NSW: Cavendish, 2001):45-46. {{ISBN|1-876905-08-5}}.</ref> and that, through the act of compulsory acquisition, the Crown is "resuming" possession.

=== New Zealand ===

In New Zealand, the Public Works Act 1981 outlines the powers of the state in relation to land used for public purposes. Under Section 16 of the Public Works Act 1981 the Minister is "empowered to acquire under this Act any land required for a Government work". Local government authorities (such as City or District councils) are also empowered under the same section to acquire land for "local work for which it has financial responsibility."<ref>{{cite web |url=http://legislation.govt.nz/act/public/1981/0035/latest/DLM45776.html |title=Public Works Act 1981 (NZ Legislation Website) |author=<!--Not stated-->}}</ref>

== North America ==

===The Bahamas===
In the Bahamas, the Acquisition of Land Act operates to permit the acquisition of land where it is deemed likely to be required for a public purpose. The land can be acquired by private agreement or compulsory purchase (s7 of the Act). Under section 24 of the Acquisition of Land Act, the purchaser may purchase the interest of the mortgagee of any land acquired under the Act. To do so, the purchaser must pay the principal sum and interest, together with costs and charges plus 6 months’ additional interest.

=== Canada ===
In Canada, expropriation is governed by federal or provincial statutes. Under these statutory regimes, public authorities have the right to acquire private property for public purposes, so long as the acquisition is approved by the appropriate government body. Once a property is taken, an owner is entitled to "be made whole" by compensation for: the market value of the expropriated property, injurious affection to the remainder of the property (if any), disturbance damages, business loss, and special difficulty relocating. Owners can advance claims for compensation above that initially provided by the expropriating authority by bringing a claim before the court or an administrative body appointed by the governing legislation.<ref>{{Cite web |last=Government of Canada |first=Public Services and Procurement Canada |title=Information archivée dans le Web |url=https://publications.gc.ca/site/archivee-archived.html?url=https://publications.gc.ca/collections/collection_2023/spac-pspc/P4-116-2023-eng.pdf |access-date=2024-05-11 |website=publications.gc.ca}}</ref>

===Panama===
In Panama, the government must pay a fair amount of money to the owner of the property to be expropriated.

=== United States ===
{{main|Eminent domain in the United States}}

Most states use the term ''eminent domain'', but some U.S. states use the term ''[[appropriation (economics)|appropriation]]'' or ''expropriation'' (Louisiana) as synonyms for the exercise of eminent domain powers.<ref>{{cite web |title=New York Code, Public Lands, Art. 2, Sec. 27, Appropriations |url=https://www.nysenate.gov/legislation/laws/PBL/27 |website=NYSenate.gov |publisher=The New York Senate |access-date=17 May 2017}}</ref><ref>{{cite web |title=Louisiana Revised Statutes, Title 19, Expropriation |url=http://www.legis.la.gov/legis/laws_Toc.aspx?folder=75&level=Parent |website=Louisiana State Legislature |access-date=17 May 2017}}</ref> The term ''condemnation'' is used to describe the formal act of exercising the power to transfer title or some lesser interest in the subject property.

The constitutionally required "just compensation" in partial takings is usually measured by fair market value of the part taken, plus severance damages (the diminution in value of the property retained by the owner [remainder] when only a part of the subject property is taken). Where a partial taking provides economic benefits specific to the remainder, those must be deducted, typically from severance damages. Some elements of value, such as a business's connection to the location and the [[Goodwill (accounting)|goodwill of the public]], are only compensable in a few jurisdictions; where they are not, fair market value may be less than the value of the location to the current user.

The practice of condemnation came to the American colonies with the [[common law]]. When it came time to draft the [[United States Constitution]], differing views on eminent domain were voiced. The [[Fifth Amendment to the United States Constitution|Fifth Amendment]] to the Constitution requires that the taking be for a "public use" and mandates payment of "just compensation" to the owner.<ref>{{cite web |url=http://www.independent.org/pdf/tir/tir_12_03_04_benson.pdf |title=The Evolution of Eminent Domain: A Remedy for Market Failure or an Effort to Limit Government Power and Government Failure? |website=Independent.org |access-date=2016-08-05}}</ref>

In federal law, Congress can take private property directly (without recourse to the courts) by passing an Act transferring title of the subject property directly to the government. In such cases, the property owner seeking compensation must sue the United States for compensation in the U.S. Court of Federal Claims. The legislature may also delegate the power to private entities like public utilities or railroads, and even to individuals.<ref>See, e.g., {{cite web|title=''Linggi v. Garovotti'', 45 Cal.2d 20, 286 P.2d 15 (1955).|url=https://scholar.google.com/scholar_case?case=15917425264572652948|website=Google Scholar|access-date=13 May 2018}}</ref> The [[U.S. Supreme Court]] has consistently deferred to the right of states to make their own determinations of "public use".<ref>{{cite journal |last1=Portner |first1=Jonathan |title=The Continued Expansion of thePublic Use Requirement in Eminent Domain |journal=The University of Baltimore Law Review |date=Spring 1988 |volume=17 |issue=6 |page=543}}</ref>

Since the 1950's, the U.S. Supreme Court has issued four major rulings expanding the government's power of eminent domain; they are: ''[[Berman v. Parker]]'' (1954), ''[[Hawaii Housing Authority v. Midkiff]]'' (1984), ''[[Penn Central Transportation Co. v. New York City]]'' (1978) and ''[[Kelo v. City of New London]]'' (2005).

==South America==

=== Argentina ===
In Argentina expropriations are governed by federal law 21.499 of January 17, 1977.<ref>{{cite web |title=Ley 21 |url=http://servicios.infoleg.gob.ar/infolegInternet/anexos/35000-39999/37292/norma.htm |access-date=2022-06-14 |website=servicios.infoleg.gob.ar}}</ref> It has been used in many locations throughout the country's history most recently during the [[renationalization of YPF]]. which resulted in the expropriation of 51% of the [[YPF|energy company]]'s shares.

===Brazil===
Brazil's expropriation laws are governed by the Presidential Decree No. 3365 of June 21, 1941.<ref>{{cite web|title=DECRETO-LEI Nº 3.365, DE 21 DE JUNHO DE 1941|url=http://www.planalto.gov.br/ccivil_03/decreto-lei/Del3365.htm|publisher=Presidência da República|access-date=24 October 2017}}</ref>

===Chile===
Art. 19, No. 24, of the [[Chilean Constitution of 1980|Chilean Constitution]] says in part, "In no case may anyone be deprived of his property, of the assets affected or any of the essential faculties or powers of ownership, except by virtue of a general or a special law which authorizes expropriation for the public benefit or the national interest, duly qualified by the legislator. The expropriated party may protest the legality of the expropriation action before the ordinary courts of justice and shall, at all times, have the right to indemnification for patrimonial harm actually caused, to be fixed by mutual agreement or by a sentence pronounced by said courts in accordance with the law."<ref>{{cite web |url=http://confinder.richmond.edu/admin/docs/Chile.pdf |title=Chile |website=Confinder.richmond.edu |access-date=2016-08-08 |archive-date=2011-05-14 |archive-url=https://web.archive.org/web/20110514094542/http://confinder.richmond.edu/admin/docs/Chile.pdf |url-status=dead }}</ref>

==Religion==
===Christianity===
Since 1967, the encyclical ''[[Populorum progressio]]'', an [[encyclical]] on [[Catholic social teaching#Pope Paul VI|Catholic social teaching]] by [[Pope Paul VI]], allows the expropriation of land estates for [[Common good#In Catholic social teaching|common good]] needs.<ref>{{cite web|url=http://www.vatican.va/content/paul-vi/en/encyclicals/documents/hf_p-vi_enc_26031967_populorum.html|title=Encyclical "Populorum progressio"}} (at n. 24).</ref>

==See also==
* [[Angary]]: during wars
* [[Confiscation]]
* [[Individual reclamation]]
* [[Inverse condemnation]]
* [[Land bonds]]
* [[Law of the land (Jewish)]]
* [[Legal plunder]]
* [[Navigable servitude]]: waterways regulation
* [[Water law]]
* [[Manifest destiny]]
*[[Compulsory purchase order]]

==Notes==
{{Notelist|30em}}

==References==
{{Reflist|30em}}

==External links==
* {{Cite EB1911|wstitle=Eminent Domain|short=x}}

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[[Category:Eminent domain| ]]
[[Category:Legal doctrines and principles]]
[[Category:Real property law]]