It can be legislatively delegated by the state to municipalities, government subdivisions, or even to private persons or corporations, when they are authorized to exercise the functions of public character.
[1] Property taken by eminent domain may be for government use or by delegation to third parties, who will devote it to public or civic use or, in some cases, to economic development.
[2] Some jurisdictions require that the condemnor make an offer to purchase the subject property, before resorting to the use of eminent domain.
[5][6] The term "condemnation" is used to describe the formal act of the exercise of the power of eminent domain to transfer title to the property from its private owner to the government.
Condemnation via eminent domain indicates the government is taking ownership of the property or some lesser interest in it, such as an easement, and must pay just compensation for it.
[9] The power of governments to take private real or personal property has always existed in the United States, as an inherent attribute of sovereignty.
The legislature may also delegate the power to private entities like public utilities or railroads, and even to individuals for the purpose of acquiring access to their landlocked land.
In Clark v. Nash (1905), the Supreme Court acknowledged that different parts of the country have unique circumstances and the definition of public use thus varied with the facts of the case.
That view ended in 1896 when, in the Chicago, Burlington & Quincy Railroad Co. v. City of Chicago case, the court held that the eminent domain provisions of the Fifth Amendment were incorporated in the Due Process Clause of the Fourteenth Amendment and thus were now binding on the states, or in other words, when the states take private property they are required to devote it to a public use and compensate the property owner for his loss.
An expansive interpretation of eminent domain was reaffirmed in Berman v. Parker (1954), in which the U.S. Supreme Court reviewed an effort by the District of Columbia to take and raze blighted structures in order to eliminate slums in the Southwest Washington area.
The Supreme Court's decision in Kelo v. City of New London, 545 U.S. 469 (2005) went a step further and affirmed the authority of New London, Connecticut, to take non-blighted private property by eminent domain, and then transfer it for a dollar a year to a private developer solely for the purpose of increasing municipal revenues.
This 5–4 decision received heavy press coverage and inspired a public outcry criticizing eminent domain powers as too broad.
The Takings Clause does not provide a definition for just compensation, but American courts have held that the preferred measure of "just compensation" is "fair market value," i.e., the price that a willing but unpressured buyer would pay a willing but unpressured seller in a voluntary transaction, with both parties fully informed of the property's good and bad features.
[16] The court held in United States v. 50 Acres of Land that this standard does not allow increased compensation for subjective values which might be considered personal to a particular owner.
[23][24] Eminent domain has been used to acquire land from African-Americans for urban renewal redevelopments[25] and in other cases to dispossess them and remove them from areas where their presence was not desired by white neighbors, e.g. Bruce's Beach subdivision in Los Angeles, California.
Eminent domain was used to take property from Japanese-Americans incarcerated by the United States government during World War II.