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Eminent Domain: From Biblical Times to the Present - September 2015

September 22, 2015

by D. Rossen S. Greene

I: A Brief History of Eminent Domain:

A French jurist of the early 19th century, Merlin de Douai, claimed that the earliest known reference to the use of eminent domain is in the Old Testament in the Book of Kings, which describes the acquisition of Naboth’s vineyard by King Ahab: “And Ahab spake unto Naboth, saying, give me thy vineyard, that I may have it for a garden of herbs, because it is near unto my house: and I will give thee for it a better vineyard than it; or, if it seem good to thee, I will give thee the worth of it in money.”[1] However, further examination reveals that only the initial line quoted resembles eminent domain, and what happens after that in the Book of Kings definitely does not resemble what we know of as eminent domain.

Given the phrase “all roads lead to Rome” one would expect the Romans to have been great believers in eminent domain, but the aqueducts and famous straight military roads were generally laid out through conquered territory which was not the property of Roman citizens but belonged to the government.[2]

Under the English feudal system, all land was held under a tenure which recognized the ultimate ownership of the sovereign.[3] The construction of a public improvement therefore did not involve the taking of property for compensation in its modern sense; highways were often simply laid out without compensation to anyone. The crown did have the royal prerogative of purveyance and preemption, i.e. the king had the right to seize provisions for the use of the royal household, without the consent of the owner, and to pay for them at a fair valuation made by appraisers.[4] However, the concept of “eminent domain” with regard to realty as we think of it in the U.S. was only in its crude beginnings in English law at the time of the founding of the first American colonies.[5] Therefore, unlike in other subjects, English common law cases are not necessarily helpful on the subject. The English also use the much easier to understand term “compulsory purchase” rather than “eminent domain.”

During the colonial period, the southern American colonies largely retained the practice of laying out highways without compensation to the owner of the land.[6] In Virginia an inquest by jury was introduced in highway cases by statute.[7] The interesting aspect of this process, which was called a “writ ad quod damnum,” was that although the matter was before a jury, it could be entirely ex parte, that is it could be conducted without any notice to or participation by the landowner, or even identifying the landowners in advance of the hearing.[8]

With American independence from Great Britain, each existing colony became a sovereign state, and assumed sovereign control over the persons and property within its jurisdiction.[9]        New states joined the union with all the sovereign powers of the old ones.[10] Each one of the states now, at least theoretically, has sovereign control over the persons and property within its jurisdiction subject to the limits of its own constitution, deducting only the powers granted to the United States and the powers each state is forbidden to exercise by the constitution of the United States.[11]

II: A Selection of Recent Virginia Cases Related to Eminent Domain:

a. Taking of property by eminent domain, which resulted in parcel being landlocked, did not give rise to any implied grant of access rights over the lands of others.Clifton v. Wilkinson, 286 Va. 205, 211, 748 S.E.2d 372, 375, 2013 Va. LEXIS 97, *9, 2013 WL 4854351 (Va. 2013).

b. Plaintiff argued that it had obtained an easement by express reservation across property acquired in 1938 by the Commonwealth of Virginia under its power of eminent domain, which the Commonwealth conveyed to the United States government for construction of the Blue Ridge Parkway. The court held that the district court did not err in concluding that the Commonwealth acquired all the property described in the condemnation petition, without reservation of the alleged easement, because the description of the property in the petition and in the state highway commissioners' report did not reference such an easement. The court also held that the district court's decision did not constitute a collateral attack on the state circuit court's order confirming condemnation of the property described in the Commonwealth's petition and the property's value as set by the commissioners because the decision constituted only an examination of the scope of that order.Agape Motorcoach Retreat, LLC v. Brintle, 523 Fed. Appx. 948, 949 (4th Cir. Va. 2013).

c. A circuit court judge denied a portion of a defendant’s motion to dismiss a condemnation petition based on alleged failure to sufficiently identify the property in the caption, stating that “the caption has no operative effect to limit or preclude the condemnation,” although the court did note that the property was specifically described in the body of the petition. City of Richmond v. Haas, 2013 Va. Cir. 58 (Richmond Cir. Ct. June 18, 2013).

d. A railroad's plea in bar and motion for summary judgment were granted because the property owners' claim was preempted by 49 U.S.C.S. § 10501(b) where the railroad line at issue had been in active use since 1890, predating the development of the neighborhood in which the owners' properties were located, the harms alleged by the owners directly resulted from the railroad's operations, and subjecting the railroad to claims based on the alleged by-products (such as noise, vibration, and various discharges) of conventional and routine rail operations on the railroad's own property, whether brought as nuisance claims or the "property damage" provision in Virginia's inverse condemnation clause, would unduly burden interstate commerce, significantly hinder the railroad's ability to function, and amount to impermissible state regulation of the railroad's operations. Schilling v. Norfolk Southern Ry., 2015 Va. Cir. LEXIS 108, *1 (Va. Cir. Ct. June 15, 2015) (citing Norfolk So. Ry. Co.—Petition for Declaratory Order, Docket No. FD-35701, 2013 STB LEXIS 338 (Nov. 4, 2013)).

D. Rossen “Ross” S. Greene is part of Pender & Coward’s Eminent Domain practice group. He is AV-Rated (“Preeminent”) in Eminent Domain, Litigation and Real Estate by the Martindale-Hubbell Peer Review Ratings system. He has also been named one of Virginia’s Legal Elite. For more information, call (757) 502-7333 or send an email to rgreene@pendercoward.com.

 


[1] 1-1 Nichols on Eminent Domain § 1.21; 1 Kings 21 (KJV).

[2] Id.

[3] 1-1 Nichols on Eminent Domain § 1.21.

[4] Id.

[5] 1-1 Nichols on Eminent Domain § 1.22.

[6] Id.

[7] 1-1 Nichols on Eminent Domain § 1.22 (citing Stokes v. Upper Appomatox Co., 3 Leight (Va) 318.).

[8] See id.; 1-1 Nichols on Eminent Domain § 1.21

[9] 1-1 Nichols on Eminent Domain § 1.23

[10] Id.

[11] See id.