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In the United States, the right to own private property is fundamental. The Fifth Amendment to the U.S. Constitution restricts the government's use of power to seize private property by guaranteeing that private property will not be taken unless required for the greater public good, and that only with just compensation for the owner.(1)
Government can affect private property rights in two different ways: through the use of police power and through the use of eminent domain. The major differences between the two approaches are summarized in Figure 1. Terms commonly used in the discussion of eminent domain are explained in Figure 2.
FIGURE 1
GOVERNMENT'S REDUCTION OF PRIVATE PROPERTY RIGHTS: TWO APPROACHES
EMINENT DOMAIN--POLICE POWER
Government would enter the property--Government would not enter the property
Government will pay compensation--Government will not pay compensation
Prohibits use of property--Restricts use of property
Examples: easement, taking of property--Examples: zoning, building codes, environmental regulations
FIGURE 2
DEFINITIONS OF EMINENT DOMAIN TERMINOLOGY
EMINENT DOMAIN--The right by which a sovereign government, or some person acting in its name and under its authority, may acquire private property for public or quasi-public use upon payment of reasonable compensation and without consent of the owner.
CONDEMNATION--The act of government (federal, state, county, municipal), and of duly authorized units of government and public utility companies invested in right amount of eminent domain, to take private property for public use and benefit, upon the payment of just compensation. It is the act of the sovereign in substituting itself in place of the owner and/or the act of taking all or a part of the rights of an owner.
INVERSE CONDEMNATION--Inverse condemnation, or de facto appropriation, "is based on a showing that 'the government has intruded onto the citizen's property and interfered with the owner's property rights to such a degree that the conduct amounts to a constitutional taking requiring the government to purchase the property of the owner.'" (O'Brien v. City of Syracuse, 54 N.Y.2d 353, 357)
POLICE POWER--The rights of government to limit the exercise of property rights in real estate, without compensation, provided the limitation is to serve the interest of public health, public safety, public morals, and the general welfare.
EASEMENT--"An easement is a liberty, privilege, or advantage without profit, which the...