Eminent domain is the right or power of a sovereign state to appropriate private property to particular uses to promote public welfare.

It is an indispensable attribute of sovereignty; a power grounded in the primary duty of government to serve the common need and advance the general welfare. Thus, the right of eminent domain appertains to every independent government without the necessity for constitutional recognition. The provisions found in modern constitutions of civilized countries relating to the taking of property for the public use do not by implication grant the power to the government, but limit a power which would otherwise be without limit. A number of circumstances must be present in the taking of property for purposes of eminent domain: 1. 2. 3. 4. the expropriator must enter a private property; the entrance into private property must be for more than a momentary period; the entry into the property should be under warrant or color of legal authority; the property must be devoted to a public use or otherwise informally appropriated

or injuriously affected; and 5. the utilization of the property for public use must be in such a way as to oust the

owner and deprive him of all beneficial enjoyment of the property.

Our own Constitution provided two constraints or limitations in the power of eminent domain that:

Private property shall not be taken for public use without just compensation

under Article III (Bill of Rights), Section 9.

Just compensation is the full and fair equivalent of the property taken from its

owner by the expropriator, and the gauge for computation is not the taker's gain but the owner's loss. In order for the payment to be "just," it must be real, substantial, full, and ample; made within a reasonable time from the taking of the property. However, the definition of the word public use is not specific. But in a more general acceptable meaning, it is a public advantage, convenience, or benefit, and that anything which tends to enlarge the resources, increase the industrial energies, and promote the productive power of any considerable number of the inhabitants of a section of the state, or which leads to the growth of towns and the creation of new resources for the employment of capital and labor, which contributes to the general welfare and the prosperity of the whole community.

The due process and equal protection clauses act as additional safeguards

against the arbitrary exercise of this governmental power under Art. III, Sec. 1. There are two stages in every action of expropriation. The first is concerned with

the determination of the authority of the plaintiff to exercise the power of eminent domain and the propriety of its exercise in the context of the facts involved in the suit. It ends either with an order of dismissal or an order of condemnation. The second phase is concerned with the determination by the court of the "just compensation for the property sought to be taken. Limitations of the Power of Eminent Domain

A R TI C L E 3

SECTION

No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.

A R TI C L E 3

SECTION

Private property shall not be taken for public use without just compensation.