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The nature and elements of the power of eminent domain

Constitutional Law

Eminent domain or expropriation is the inherent right of the state to condemn private property to
public use upon payment of just compensation. A number of circumstances must be present in the
taking of property for purposes of eminent domain:

(1) the expropriator must enter a private property;

(2) the entrance into private property must be for more than a momentary period;

(3) the entry into the property should be under warrant or color of legal authority;

(4) the property must be devoted to a public use or otherwise informally appropriated or
injuriously affected; and

(5) the utilization of the property for public use must be in such a way as to oust the owner and
deprive him of all beneficial enjoyment of the property.

When private property is rendered uninhabitable by any entity with the power to exercise
eminent domain, the taking is deemed complete. NPC v. CA, G.R. No. 106804, August 12, 2004,
(436 SCRA 195). Taking occurs not only when the government actually deprives or dispossesses
the property owner of his property or its ordinary use, but also when there is a practical destruction
or material impairment of the value of the property. (Rep. v. CA, G.R. No. 147245, March 31,
2005, 454 SCRA 516; Heirs of Mateo Pidacan & Romana Eigo, et al. v. ATO, et al., G.R. No.
162779, June 15, 2007)


Nature of the power of eminent domain

Constitutional Law
In general, eminent domain is defined as “the power of the nation or a sovereign state to take, or to
authorize the taking of, private property for a public use without the owner’s consent, conditioned
upon payment of just compensation.” it is acknowledged as “an inherent political right, founded
on a common necessity and interest of appropriating the property of individual members of the
community to the great necessities of the whole community.”

Just Compensation
DEFINITION of 'Just Compensation'
Just compensation refers to compensation individuals receive when their property gets seized by
the government for public use. For example, when the national highway system was constructed in
the 1950s, many homeowners had their property seized because the government wanted the land
to build the interstate highway system. The just compensation remedy is provided by the Fifth
Amendment's takings clause and is usually considered to be fair market value. However, what the
government considers just compensation may not be regarded as such by the person whose
property is seized. The government’s power to take private property for public use if referred to as
“eminent domain.”

BREAKING DOWN 'Just Compensation'

Individuals who lose their home through eminent domain may not consider the fair market value
of the property to be just compensation because it does not take into account the time, stress and
expense of moving to a new property. Just compensation also fails to account for the loss of
neighborhood social networks or the emotional ties the owner may have to the property. (To help
determine the value of your home, see: Top 4 Things that Determines a Home’s Value.)

Determining Just Compensation

When determining just compensation, the following issues need thorough consideration:

Fair Market Value of Land: The price the property owner would receive if they were willing, not
forced, to sell can be used to help determine the fair market value of the land. For example, if a
landowner decided that they wanted a more significant piece of land and auctioned their existing
property, the auction sale price would be considered fair market value.

Fair Market Value of Land Improvement’s Seized: Land improvements refer to structures that
improve the value of taken land. Land improvement may include detached dwellings, barns and
separate garages. Intangible land improvements must also be taken into consideration. For
instance, land near an area with natural resources may be considered a land improvement.

Residue Damages: Residue damages to property as a result of eminent domain needs

consideration. Residue damages may include the inability to use the best part of the land, any
change or shape to the land and the land’s new proximity to public infrastructures, such as roads or
utility equipment.

Benefits: Although less frequent, property owners may benefit from publicly taken land. For
example, if part of an owner’s land gets seized for a new service road that allows the property to
be subdivided, that benefit can be used to offset the total compensation received.

Land is real estate or property, minus buildings and equipment, that is designated by fixed spatial
boundaries. Land ownership may offer the title holder the right to natural resources on the land.
The traditional school of economics dictates that land is a factor of production, along with capital
and labor. The sale of land results in capital gain or loss; under IRS tax laws, land is not a
depreciable asset.


The term land can be looked at in a number of ways, with its definition viewed differently
depending on the circumstances under which it is analyzed. The basic concept of land is that it is a
piece of earth, namely a piece of property that has an owner.