EMINENT DOMAIN, a term applied in law to the sovereign right of a State to appropriate private property to public uses, whether the owner consents or not. It is repeatedly employed by Grotius (e.g., De jure belli, bk. iii. c. 20, S. 7), Bynkershoek (Quaest. jur. pub., bk. 2, C. and Puffendorf (De jure naturae et gentium, bk. i. c. 1, s. 19 )—the two latter, however, preferring the word imperium to dominium; and by other Dutch jurists. But in modern times it is chiefly in the United States of America that the doctrine of eminent domain has received its application, and it is chiefly to American law that the following remarks refer. Eminent domain is distinguishable alike from the police power, by which restrictions are imposed on private property in the pub lic interest, e.g., in connection with the liquor traffic or public health (see re Hall [1904], 197 U.S. 488); from the power of taxation, by which the owner of private property is compelled to contribute a portion of it for public purposes; and from the war power, involving the destruction of private property in the course of military operations. The police power fetters rights of prop erty ; eminent domain takes them away. The power of taxation is analogous to eminent domain as regards the purposes to which the contribution of the taxpayer is to be applied ; but, unlike emi nent domain, it does not necessarily involve a taking of specific property for those purposes. The destruction of property in mili tary operations, or in the discharge of Government or other duties in cases of necessity, e.g., in order to check the progress of a fire in a city, clearly cannot be said to be an exercise of the power of eminent domain. The question whether the element of com pensation is necessarily involved in the idea of eminent domain has in modern times aroused much controversy. According to one school of thought (see Lewis, Eminent Domain, s. 1o), this question must be answered in the negative. According to a second, whose view has the support of the civilians (see Randolph, Emi nent Domain, s. 2 2 7 ; Mills, Eminent Domain, s. 1) compensation is an inherent attribute of the power. An intermediate view is ad vocated by Professor Thayer (Cases on Constitutional Law, vol. i. 953) , according to which eminent domain springs from the ne cessities of government, while the obligation to reimburse rests upon the natural right of individuals. The right to compensation is thus not a component part of the power to take, but arises at the same time and the latter cannot exist without it. The relation between the two is that of substance and shadow. The matter is not, however, of great practical importance, for the Federal Con stitution prohibits the exercise of the power "without just com pensation" (5th Amendment), while in most of the States the State constitution or other legislation has imposed upon it a sim ilar limitation; and the tendency of modern judicial decisions is in favour of the view that the absence of such a limitation will make an enactment so far unconstitutional and invalid.
In order to justify the exercise of the power of eminent do main, the purposes to which the property taken is to be applied must be "public," i.e., primarily public, and not primarily of pri vate interest and merely incidentally beneficial to the public (Madisonville Traction Co. v. Mining Co., 1904, 196 U.S. 239)• Subject to this definition, the term "public" receives a wide in terpretation. All kinds of property may be taken ; and the pro cedure indicated by the different legislatures must be followed.
See COMPENSATION. (A. W. R.)