Quick answer

Eminent domain is the inherent power of the State to take private property for public use upon payment of just compensation; expropriation is the legal proceeding by which that power is exercised. The Constitution limits the power: private property shall not be taken for public use without just compensation, and no person shall be deprived of property without due process of law. The requisites for a valid exercise of eminent domain generally are: the property taken is private property; there is a genuine necessity for the taking; the taking is for public use (broadly construed to include public purpose or public welfare); just compensation is paid; and due process of law is observed. The power is lodged primarily in Congress but may be delegated to the President, local government units, and certain public utilities and corporations, whose exercise is subject to stricter scrutiny and the limits of the delegating law. Expropriation proceedings have two stages. The first stage determines the authority of the plaintiff to exercise the power and the propriety of its exercise; it ends with an order of expropriation (or a dismissal), and upon deposit of the required amount, the plaintiff may enter and take possession of the property. The second stage determines just compensation, with the court appointing commissioners to ascertain and report the just compensation, after which the court renders judgment fixing it. Just compensation means the full and fair equivalent of the property taken; the measure is the owner's loss, not the taker's gain, and it is generally determined as of the date of the taking or the filing of the complaint, whichever came first, with legal interest on any unpaid balance. So the State may expropriate private property for public use through a two-stage proceeding, but only with genuine necessity, due process, and the payment of just compensation.

The Power and Its Limits

Eminent domain is the State's inherent power to take private property for public use upon just compensation; expropriation is the proceeding. The Constitution requires just compensation and due process.

The Requisites

The Two Stages and Just Compensation

Stage 1: determines the authority and propriety of the taking, ending in an order of expropriation; on deposit, the plaintiff may take possession. Stage 2: determines just compensation via commissioners. Just compensation = the full and fair equivalent (the owner's loss), reckoned at the taking or filing, whichever is earlier, with interest.

Practical Takeaways

Frequently Asked Questions

What is eminent domain? The inherent power of the State to take private property for public use upon payment of just compensation. Expropriation is the legal proceeding by which this power is exercised.

What are the requisites of a valid expropriation? The property taken is private, there is a genuine necessity for the taking, it is for public use or purpose, just compensation is paid, and due process of law is observed.

What are the two stages of expropriation? The first determines the plaintiff's authority and the propriety of the taking, ending in an order of expropriation, with possession allowed upon deposit. The second determines just compensation, generally with court-appointed commissioners.

How is just compensation determined? As the full and fair equivalent of the property taken, measuring the owner's loss rather than the taker's gain, generally reckoned as of the date of taking or the filing of the complaint, whichever came first, with legal interest on unpaid balances.

This commentary is for general informational purposes only and does not constitute legal advice. For guidance specific to your situation, please consult a licensed attorney.

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