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Eminent Domain, Property Takings (Fifth Amendment)

Eminent domain is one of those hot button policy issues that almost always draws the ire of private property owners, despite it usually resulting in large cash settlements for a property owner. Both the Missouri Constitution and Federal Constitution address eminent domain — that is, the government’s authority to take private property.

Article I, Section 26 of the Missouri Constitution provides:

That private property shall not be taken or damaged for public use without just compensation. Such compensation shall be ascertained by a jury or board of commissioners of not less than three freeholders, in such manner as may be provided by law

The Fifth Amendment to the U.S. Constitution provides in pertinent part:

nor shall private property be taken for public use, without just compensation

The analysis for both the Federal and Missouri takings clause is similar. The threshold issue in any takings question is whether there has been a “taking.” “Taking” has been interpreted liberally; indeed, governmental action does not need to result in an actual transfer of title to be considered a taking. However, Courts have consistently held that a permanent physical occupation — no matter how small — is a taking. (e.g., the government running a cable wire through an attic of someones property is a taking). Some governmental actions are less clear. What about actions which result in the temporary denial of all economic use? Regulations that result in the decrease of property value?

The public use requirement has in recent years been subject to political scrutiny. In short, the U.S. Supreme Court has interpreted “public use” to essentially mean “public purpose.” Thus, under this interpretation, the government may permissibly transfer title from one private owner to another private owner so long as the transfer serves the public purpose.

More often than not, though, many eminent domain issues will concern the “just compensation” requirement. Generally — the property owner is entitled to the reasonable value of the property at the time of the taking; i.e., its fair market value. All sorts of factors such as location, nature of the property, how long the property has belonged in a family, etc. can impact the just compensation requirement, thus creating a lot of gray area.

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