What Levels of Government Have the Power of Eminent Domain?

Eminent domain is the power for the government to “condemn” private property and take it for some “public use.”  It is commonly used by governments to build roads or lay utility lines, but what levels of government can use that power?

Generally speaking, all levels of government have the power to use eminent domain.  The U.S. Constitution makes references to eminent domain, and most state constitutions govern the power of state and local governments to use eminent domain.  In these situations, “local” government refers to whatever subdivision is used in your state, whether that be county, township, city, or other municipal government.

For help with an eminent domain case, call the Dallas eminent domain attorneys at The Queenan Law firm today at (817) 476-1797.  Our attorneys offer free case reviews.

Federal Government Eminent Domain Powers

The U.S. Constitution’s Fifth Amendment has a clause known as the “Takings Clause.”  This clause states that the government cannot take private property for public use unless they provide “just compensation.”  This rule does not explicitly state that the U.S. Government has the power of eminent domain, but it certainly implies it.

The power of eminent domain stems from the government’s inherent powers rather than being explicitly listed in the Constitution.  The Constitution is actually what limits these powers and guarantees certain rights to the people and the states.

Other sections of the Fifth Amendment and the Constitution at large similarly reference other powers of government and place limits on them without explicitly stating what power the government has.  For example, the Fifth Amendment also says that the government needs to use a grand jury when charging people with a crime, but it doesn’t specifically authorize the government to charge people with a crime in the first place – that’s something that’s inherent to the powers of government.

It was confirmed that the federal government has the right to use eminent domain in an 1875 case called Kohl v. United States, where the U.S. Government wanted to seize a piece of land to build a post office on it.  However, the government used the power of eminent domain before this; that case was just a prominent case dealing with a challenge to the government’s eminent domain power.

All of the federal restrictions placed on eminent domain also apply to the states and other levels of government using eminent domain as well.  This means any level of government needs to pay “just compensation” when using eminent domain and use the land for a “public use.”

State Government Eminent Domain Powers

Every state also has the power of eminent domain.  Again, this is part of the individual state governments’ inherent powers.  In most cases, states do use the term “eminent domain,” but the word “appropriation” also means the same thing when used in this context by other states.

Some state constitutions do what the U.S. Constitution does and assume that the state government has the power of eminent domain, only laying out restrictions on that power.  For example, Texas has a similar setup to the U.S. Constitution, and the Texas Constitution does not have wording to grant the government the power of eminent domain, but it does put limits on that power.  Texas has even gone further and created a Texas Landowners Bill of Rights that lays out specific restrictions and processes on how eminent domain works in Texas.  If you are dealing with an eminent domain issue in Texas, an eminent domain lawyer in the state can help you with your case.

Other state constitutions may have more specific rules about eminent domain built into the text.  In either case, it is definitely possible for the state to use eminent domain to take property.

Local Government Eminent Domain Powers

Local governments are usually treated, legally speaking, as offshoots of the state government.  Rather than being completely separate governments that overlap like state and federal governments, governments for counties and cities are essentially subdivisions under the state government.  As such, state and local governments can still use the state’s eminent domain powers.

This might be used for small issues within an area, such as constructing telephone poles or laying power lines.  It is also possible that a city or local government might seize land to build a local community center or park.

In general, the term “local government” or “municipal government” refers to any of the following levels of government:

  • County (or parish)
  • City
  • Village
  • Town or township
  • Borough
  • School district

Other terms might be used in various areas as well.  However, local government does not usually refer to “towns” or campuses owned by private companies or religious institutions such as church parishes or diocese that might also have a geographic boundary.  If you are in doubt as to whether the claim for eminent domain is coming from a real government entity, contact a Houston eminent domain lawyer immediately.

Can Non-Government Entities Use Eminent Domain?

The power of eminent domain is only granted to the government.  However, many private entities can ask the government to use eminent domain to give them land for some purpose.  However, there are restrictions on this.

The 2005 Supreme Court case Kelo v. City of New London dealt with a city government seizing property in order to give it to a company to build a new plant that would provide “economic recovery” to the area.  The Court allowed with this use, saying that giving the land to the private company would indeed provide a “public use” by helping to stimulate the economy.

Most situations where the government uses eminent domain to give the land to a private company have a much clearer, more direct “public use” attached.  For instance, eminent domain is often used to give land to private cable, internet, and utility companies to build utility boxes or lay lines/cables.  However, even these small takings must be properly compensated, and you can hire an eminent domain lawyer to help protect your rights.

For Help with Eminent Domain, Call an Eminent Domain Lawyer

The eminent domain lawyers at The Queenan Law Firm help those in our communities protect their property rights in eminent domain cases.  For a free case review, call us today at (817) 476-1797.