Eminent Domain Use to Help Mall Is Unusual

The legal principle of eminent domain has been used since the early days of the republic, allowing the government to lawfully obtain private land for public projects. But private-sector involvement, although on the rise in recent years, is not entirely new.

When Hurst used Texas’ eminent domain law, the city bought out 117 homeowners and took the remaining 10 holdouts so a shopping mall could expand. This is--and isn’t--entirely unprecedented.

“It’s unique in that it involves a shopping mall,” says Michael Allan Wolf, a professor of law and history at the University of Richmond who studies property law. “It’s not unique in that it involves a displacement of persons for what’s perceived as economic betterment of the community.”

From the first decades after the American Revolution, there was an understanding that individuals could not stand in the way of the greater good. Case law suggested--and still suggests--that “overriding public benefit” is a valid reason for taking land.

Even in the early 19th century, Wolf says, there was private involvement in public land decisions: state legislatures providing special power to mill owners, for example.

Later in the 1800s, the expansion of the railroads--profit-making enterprises owned by individuals or stockholders--caused great disputes when land was taken. But as government saw it, railroads were public transport for public good.

The 20th-century equivalents, public highways, are actually publicly owned. And, since a 1954 U.S. Supreme Court decision, eminent domain has also been used to effect urban renewal by condemning what government perceives as blight.

In recent decades, industry has been increasingly viewed as what Wolf calls “the engine of public progress.” Certain manufacturing facilities, a General Motors plant among them, were built on land claimed by eminent domain. In such cases, the overwhelming benefit was private, and the public benefit--jobs, for example--was a useful side effect for the community.

Late 20th-century case law dictates that “as long as there is an incidental public benefit, the use of eminent domain is proper,” Wolf says. “And the Hurst case uses that precedent.”

He cites a gradual pattern of allowing more latitude in eminent domain “because the landowner is getting just compensation”--at least in terms of money.

“In America, we don’t have a fundamental right to private property,” Wolf says. “What we have is a right to be compensated if our property is taken. As long as you get a good price, you really can’t do much. Sentimental value is not compensated in this country.”