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Wednesday, March 16, 2005

Eminent Domain and Public~Private

A non-law friend is surprised to find Texas planning to exercise eminent domain:
Not only would the state be carving through hundreds of ranches and privately owned property with the highway, it would be doing so to reassign the property to a private company [this statement appears to be incorrect; TX-DOT will hold title to all project right-of-way property]. And not to just any company -- to be uncharacteristically protectionist about it -- but a foreign company, Spain's Cintra. Are we really watching leadership in the seat of the contemporary conservative movement seize property from private individuals and grant it to private, foreign corporations? As a bellwether, is this a bell tolling the passing of traditional conservative values?
In comments, a lawyer points out that such a taking has a long legal precedent behind it, and in situations where the public is much less obviously benefited than we would be by a new highway.

Even Missouri Pac. Ry. Co. v. State of Nebraska, linked by Publius in a post about Kelo as the one case invalidated by the Supreme Court on public use grounds, isn't actually saying that the use in question would be public. Justice Gray's opinion states, "The order in question was not, and was not claimed to be, either in the opinion of the court below, or in the argument for the defendant in error in this court, a taking of private property for a public use under the right of eminent domain." Instead, the State of Nebraska sought
to transfer an estate in part of the land which [the railroad] owns and holds, under its charter, as its private property and for a public use, to an association of private individuals, for the purpose of erecting and maintaining a building thereon for storing grain for their own benefit, without reserving any control of the use of such land, or of the building to be erected thereon, to the railroad company, for the accommodation of its own business, or for the convenience of the public.
The Court framed the case as being, if anything, a contradiction of the proper use of eminent domain, with the property held by the railroad "for a public use" being forcibly converted by the state to a private one. There's a tinge of "public accomodation" about this distinction; a use that is open to the public, even if for private profit (as with a highway, railroad or even sports arena) seems to fit much more easily within "public use" than one that has a more limited set of users.


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