Whose Land Is It Anyway?

Carol Greenberger
According to Mayor Cain’s definition, this home with a one car garage would be considered “blighted” in Lakewood, Ohio.

Buying my first house was one of the most exhilarating, frightening and satisfying experiences of my life. Ownership gave me a sense of security and safety. This was my home and as long as I paid the mortgage no one could take it away from me. Or could they? Across America people are discovering that sometimes holding a deed is meaningless, thanks to the growing use of the government’s power of eminent domain.

Eminent domain is the power of the state to take private property. The 5th Amendment to the Constitution states that private property can be taken if two requirements are met: the taking must be for public use and just compensation must be given. Most of the litigation and debate over takings is two fold: what constitutes fair payment to a seller who is often unwilling, and what constitutes public use? The use of eminent domain in America parallels our country’s development. The first recorded uses were for building roads. The colonial governments also took property to give owners of land-locked properties access to public highways and for mill dams, allowing mill owners to flood lands belonging to others to provide water power. In most, but not all cases, landowners were compensated, although disputes arose over the amount of compensation. By the end of the colonial period, the use of eminent domain as a legal method for the government to take private property had begun to take shape. However, the question of the purposes eminent domain should be allowed for was not yet clearly defined.

At the time of the American Revolution there was nothing limiting takings by eminent domain to public uses. In 1776 only Pennsylvania and Virginia’s state constitutions mentioned “public use,” but neither actually limited takings for that reason. The provision that emerged in the Bill of Rights in 1789 was also ambiguous. Madison’s draft of the 5th Amendment originally included double jeopardy, compulsory testimony, and general due process clauses, along with an eminent domain clause stating, “No person shall be…obliged to relinquish his property, where it may be necessary for public use, without a just compensation.” The final revised language, “…nor shall private property be taken for public use, without just compensation” may have simply been an attempt to shorten the original clause or it may have been intended to weaken the public use provision. Some historians believe that eminent domain was just not of great concern to the men debating the Bill of Rights. The framers of the Constitution may have assumed that a representative government would adequately protect its citizens against abuses of eminent domain.

After independence, the primary uses of eminent domain continued to be road building and mill dams. Another class of benign uses was growing more common, as well. Takings to provide sites to carry on general government functions began, such as building town halls, courthouses, schools and post offices. Little litigation arose from these takings, suggesting either that the takings were infrequent or not thought of as unreasonable. Land was not scarce in America’s early days, and when possible governmental bodies probably purchased available land rather than taking it. These types of takings, when justly compensated, have been seen as legitimate from early times.

As rail lines began to span the country, eminent domain was put to more extensive use than ever before. By 1860 over 30,000 miles of track had been laid and the courts and legislatures helped ensure the rapid expansion of the railroad system. Damages and valuations were limited, and many states allowed railroads to take property at virtually no cost.

Controversy over government takings increased as private land was taken for public parks, to preserve historic sites, and create scenic easements. In 1896 the Supreme Court upheld a federal statute that provided for the taking, restoration, and preservation of the Gettysburg Battlefield. The definition of public use began to expand.

After transportation and industry were developed in the United States, a period of accelerated industrial development began. With it came a major expansion in mining. Under the Mineral Lease Act of 1920 and the Mining Law of 1872, the government made it easy to obtain the rights to prospect for and mine reserved minerals. The holder of the surface land had a right to compensation for damage to improved land, but no right to prohibit prospecting or mining. There is no evidence of mining companies using eminent domain to obtain claims, but they were almost always able to condemn property for access and transportation.

The surges in industrial growth and railroad expansion created a major drive to open western markets and exploit western resources. To spur development many western states handed out eminent domain to practically any source of capital that could use it. Some state constitutions declared that private property could be taken for private use. A new rationale employed by some state governments related the definition of public use to the nature of the state’s resources and industry. For example, a Nevada high court made a distinction between ordinary businesses capable of operating on a variety of sites from those, like mining, that were site-dependent. The court stated that the latter could legitimately be given eminent domain powers. This decision was cited over the next several decades because of its underlying general public benefit analysis.

The frenetic spurt of growth and expansion in America had slowed by the early 1900s and a large part of the necessary infrastructure to support industry was in place. State and federal courts began to tighten up the compensation requirement of takings to prevent abuse. Many states began to require jury trials in cases of private takings and to include a broader variety of damages in compensation formulas. Energy producers were then the largest users of eminent domain, as city-wide distribution became state-wide and then national. Eminent domain was becoming an instrument of large, industry related projects involving industry cooperation with government. The future of eminent domain was in infrastructure expansion and urban redevelopment.

The interstate highway system, authorized in 1944, and the Saint Lawrence Seaway, completed in 1959, made extensive use of eminent domain. These projects were largely uncontested. Takings by the Tennessee Valley Authority, however, placed the subject of eminent domain back in front of the Supreme Court. The TVA succeeded in taking land adjacent to a town that would be flooded, to create a reservoir. The Court rulings expanded the scope of takings that could be justified by public purpose, and gave federal agencies an expanded power of eminent domain. Since then the TVA has not lost any challenges on general public use grounds. Energy transportation and distribution have now moved into the forefront of eminent domain usage and disputes.

Rabun County residents are certainly familiar with an energy company’s attempt to use eminent domain. In March of 2000, Georgia Transmission Corporation (GTC) unveiled three potential corridors for a high voltage transmission line through Rabun County. Later that year the possible routes were increased to seven, increasing the number of citizens who could be affected. Homeowners, assisted by the Chattooga Conservancy, began to organize to protest the power line project. Residents in Cobb, Fulton, Gwinnett, Cherokee, Forsyth, Hall, White, Lumpkin and Dawson counties have also mounted opposition to proposed power lines through their neighborhoods. Homeowners accuse power companies of siting lines without public input and using their condemnation authority to take property when they face resistance. A question of whether or not the high voltage transmission delivery system is even needed became a hot topic of debate. An attempt was made to pass legislation in the last General Assembly session to require state oversight of transmission line routing, with public hearings mandated. The legislature will pick the issue back up this year. The power companies cite the need for quick construction of additional transmission lines to keep pace with growth. A Georgia Power executive noted that condemnation proceedings are used to acquire property for high-voltage power lines in only 3 percent of cases. Regarding the authority to take private property through eminent domain proceedings, GTC vice president Jerry Donovan said, "It's not a decision we take lightly. We feel we have been good stewards of eminent domain over the years." That is little consolation to homeowners who face losing their land.

One affected homeowner told his story to a subcommittee of the Georgia House Judiciary Committee at a hearing in January 2003. He said in part, “My grandfather came to Cobb County in a mule drawn wagon in the 1800’s. He was a hard working farmer and went on to accumulate property to pass down to my father and my father passed the property to me. I have worked for 40 years to maintain and preserve this property for my three children, eight grandchildren and two great-grandchildren. Then comes Georgia Transmission Company [Corporation] in October of 2001... GTC has condemned my property with their legal staff, unlimited resources took it away against my will and have only giving me a fraction of the fair value.” Other homeowners cited the cost of fighting a power company over a taking. Mike Carter, co-founder of Homeowners Opposing Power-line Encroachment, Inc. (H.O.P.E. of Georgia), told the subcommittee, “I feel there is a myth that people [who] have not experienced condemnation under the laws embrace. I know I did prior to my education. They hear that every property owner gets paid fair and just compensation and has rights, due process, because they have their own day in court. It sounds good. The facts as I have come to know them are you will spend many days in court, very expensive days. Just the transcripts from our hearings cost us right at $4,000. That was just to get a copy of what was said in the courtroom when they seized the land against our will and claimed it was in our best interest. Then you add up the cost of the appraiser, witnesses, engineers, and attorney’s fees, in most cases 60%-70% of the final judgment, goes out and is paid out to these other people. Actually you can only get to this point if you have lots of disposable income or go mortgage your property to raise money as in our case to be able to take the condemnation process to a jury trial. These services generally require payment upfront or at completion, which is well before you will see any money. There is no way under the current system for the average citizen to stand up for their rights when they are challenged by the enormous, well-funded, and seemingly invincible power industry.”

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