What Is Eminent Domain?
And what forms can it take?
on February 26, 2021
Updated on January 23, 2023
One of the most commonly misunderstood areas of the law is eminent domain. We spoke with Steven M. Silva, an eminent domain attorney at Blanchard Krasner & French in Reno, Nevada, to learn its origins, its misconceptions, and the forms it takes.
Where Does Eminent Domain Stem From?
If we start from the very beginning, eminent domain is what we call a sovereign power. You’ve heard the phrase, ‘It’s good to be the king.’ And it’s true: When you’re the sovereign over any area, you have a lot of powers. You can tax, you can go to war, you can conscript people, you can throw them in jail if they violate your laws. And, specific to the territory that you’re controlling as the sovereign, you can take back the land from whomever you say is the owner. That’s just what we call an inherent aspect of sovereignty—it’s part of what it means to be sovereign.
It can be surprising to many people to learn that if you do not want to sell, the government has the power to simply take your property, especially in America (although they do have to pay for it). Most of American law comes from the English common law system, which is judge-made law. A lot of it’s based on reasonableness, and balancing of rights and responsibilities, and what seemed just at the time to a particular judge hearing a case. And so, it’s very hodgepodge … as opposed to the civil law in Europe, where the statutes are really the be-all, end-all of things. Eminent domain, the concept, comes from a European civil law, first described by the legal philosopher Hugo Grotius. So, it’s kind of an odd fit in England and America’s common law system, but it exists: It is an inescapable part of our law.
In our law, the rule is this: The government shall not take private property for public use without paying just compensation—that’s a rephrase of the Fifth Amendment. We generally call it the ‘takings clause’ and most, but oddly not all, states have similar provisions in their Constitution. Interesting, Nevada has it in twice.
Is That Where a Lot of the Misconceptions Come From?
I think so. By high school, you’ve been exposed to the basic outlines of the Constitution. You’ve had some teacher go through the Bill of Rights in 20 minutes, you know? For a lot of people, that might be as far as they go. And even for people who study it further, that grade school constitution feels right. They’ve learned that, in America, property rights are sacrosanct. And a lot of people get the notion that they’re unconditional—that a house is a person’s castle.
So, a lot of people have the sense that eminent domain is somehow illegal or wrongful—that there’s something unconstitutional about it. And, for a person going through eminent domain, having their property taken away from them, it’s unpleasant. You are faced with the harsh reality that the government can totally come in and take it away from you, and you can’t stop them.
The main check on the exercise of eminent domain is they have to pay you for it. The second check is it’s got to be for public use. Even if you’re the government, you’re not really supposed to be able to seize John’s house to give it to Joe to live in. But the question of exactly what the government can take your property for is still open and fiercely contested.
What Are the Forms Eminent Domain Takes?
Eminent domain is the power to take property. Eminent domain litigation takes two basic forms: direct condemnation and inverse condemnation.
There’s what we call direct condemnation—that’s where the government takes your property on purpose; we want to take it so that we can build something else. The most common ones are road-widening projects. Over time, we need to expand roads or improve them, or widen the sidewalks to make them ADA compliant.
Depending on the scope of the widening, very often, we only need to take a portion of the property. If you drive through a recently expanded road, you’ll see lots of properties with slightly shorter front yards than usual because the government only needed a little slice. Eminent domain is a great area of practice, by the way, because you can drive around town and see lasting reminders of your cases. For example, I have a favorite driveway in Las Vegas that was the key to settling a case.
The other common form direct condemnation is for utility easements. Those are often fiercely contested, but have the least physical impact. You usually can’t see them, but if there’s an easement placed in a certain part of the property, it might impair its future developability. It might just be a house right now, but maybe you’re zoned where you can build multi-family. And if that easement comes in and drives a five-foot dagger through the heart of your parcel, now you can’t build that apartment complex you were going to go for.
The other major leg of eminent domain is what we call inverse condemnation. This is where most of the fighting actually happens. … Inverse condemnation is when the landowner says, ‘The government actually took my land without paying just compensation and without filing a condemnation suit.’ And maybe they didn’t mean to, but they did it; or maybe they meant to, but they’re trying to sneak it away. But the long and the short of it is: When you file an inverse condemnation suit, you are alleging that the government took your property as a matter of fact, without paying compensation.
I Assume the Inverse Cases Are More Difficult To Challenge for Property Owners?
Those are dog fights because, generally speaking, the government sincerely does not believe they’ve taken your property. And the landowner has at the very least had some negative governmental interaction that they want to be paid for.
The least controversial versions of inverse condemnation are cases where the government goes and widens a road, and paves five feet too far. So, they actually did physically take that land for the public use of a roadway, but it’s very easy to see. And now the landowner just wants to be paid for it, and that’s not a problem.
The more difficult ones are flooding cases. You live in a house at the bottom of the hill, you were already there, there was a natural system of water diversion and your house had never flooded. I’m the government, and I approve development uphill from your property. I approve and accept the dedication of hard paved roads. And, as part of it, I direct the developer to channel water down a natural creek instead of the new road I paved. Now, your house starts flooding. Did I, the government divert that water onto your house? And if so, have I now caused a physical invasion of water? The answer is sometimes yes, sometimes no—it really depends on the facts but also on the laws of that particular jurisdiction.
With direct condemnation, most commonly, you get a valuation fight: ‘I think I’m taking a slice of your residential front yard with some landscaping; you think I’m taking away future developability for an apartment complex on that lot.’ There’s a huge swing in value based on those two concepts, so we’re going to fight it out and see if it really could have been an apartment complex. It can be emotionally brutal, especially for the landowner, but at the end of the day, you do find somebody to tell you what the thing is worth. And then you move forward. You may see a rare challenge to the validity of the take.
Inverse condemnations, by contrast, almost always have a liability fight and then only if the landowner prevails on liability you have the same valuation fight. So, it’s twice the fighting. Even worse, if you’re the landowner and you lose an inverse fight, then you receive no compensation for whatever you perceive your loss to be. In a direct condemnation case, you receive the government’s valuation even if you lose.
What About Regulatory Takings?
The final main category of inverse condemnation is regulatory takings, where the government won’t let you build or do something you want to build or do, for whatever reason the government deems fit. Maybe you think that they don’t have a valid basis for denying your permit, and you contend that their denial has in fact taken away your development rights, so you sue them for taking. They’re incredibly hard cases to pull off. It’s very often that the government will simply let you continue doing what the land has been doing, but won’t let you do more. And if you’ve got what you always had, it can be very difficult to show the court that your lost opportunity is something that the government actually took from you for a public use.
So, those are the main three legs: You’ve got your classic direct condemnation cases where the government knows it’s taking something and does it on purpose. You’ve got your inverse condemnation cases that are based on physical acts like over-paving or consequential damages from flooding. And then, finally, you have your regulatory taking inverse condemnation cases.
If you’d like to learn more about the use of eminent domain, real estate, eminent domain cases, fair compensation, and land acquisition, please see our eminent domain law overview, or reach out to an experienced Nevada eminent domain attorney.