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Eminent domain, ' public use ', and the conundrum of original intent

Author
Melton B.F.
Journal/Series
Natural Resources Journal | Vol. 36(1); 59 - 85; 27 p.
Date
1996
Source
IUCN (ID: ANA-058567)
Publisher | Place of publication
University of New Mexico School of Law | Albuquerque, NM, USA
Language
English
Country/Territory
United States of America
Subject
Environment gen.
Keyword
Property rights
Abstract

The Fifth Amendment to the United States Constitution reads, in part, that private property shall not 'be taken for public use, without just compensation'. Several state constitutions place similar public use limitations on the eminent domain power. Some state courts reacted to the rise of the corporation by reading the public use limitation strictly, requiring actual public access to the property taken in order to justify the taking. Other courtss adhered to a broader interpretation, which required only that the public benefit in some fashion from the taking. This debate produced a persistent confusion in legal doctrine that lasted for decades. Late twentieth century application of the 'public benefit' theory, now almost universal in the US, is thus congruent with the early meaning of'public use'