Main Requirement of Property for Public Use

Requirement of Property for “Public Use”
A private owner has absolute rights over the land that one owns. Notwithstanding that, when there is a requirement of the private property for public use, the government may make use of the land for the necessary public use. Seemingly, such a requirement would be against the rights of the private owner. However, the interest of the public supersedes the interest of the private. This does not mean that the government arbitrarily violates privacy rights. Hence, such a requirement must be compelling and indispensable. If there are other means of achieving the facility for public use, then there is no compelling requirement of the private property for public use.

It is important to understand what constitutes “public use” for taking private land for any project. A public use generally requires conferring a benefit to the public. Such public use must be necessary, and the government cannot take away a property for an unnecessary benefit in the name of public use. Initially, “public use” was limited to the actual use of the property by the public, such as roads or schools, but the definition of “public use” was even extended to “public purpose.” Even if the property is not directly used by the public, the property could be for the purpose of the public, which is of indirect use to the public. For example, land might be required for the construction of a prison or a power plant.

The Right of Eminent Domain
The government’s right to seize private land for public use is known as eminent domain. As a result, if the property is for public use, the government has the authority to confiscate it. However, even the owner of the property has a right to compensation for the loss his or her private property. The power of the government to take private property has long existed as a natural attribute of the sovereign government. However, such a powerful right must be properly restricted to prevent abuse of the right. In fact, the right of eminent domain has been abused by many governments of many states for acquiring the lands of African-Americans and Japanese-Americans. The Fifth Amendment’s “Takings” provision requires that the use of the right of eminent domain be limited.

The ‘Takings’ Clause
The “Takings” clause of the Fifth Amendment is the law for the regulation of the right of eminent domain of the state. The “Takings” clause provides that, “No private property will be seized for public purpose without reasonable compensation.” The “Takings” clause does not confer the state the right of eminent domain but limits it. The makers of the Constitution were mostly landowners and did not trust the federal government and so adopted the “Takings” clause in the Fifth Amendment. The main purpose of the “Takings” clause is the protection of the individual rights of people against violation, even if it is for the benefit of the public.

There are three important attributes in the application of the “Takings” clause:

It applies to only private property. The government may make use of public land for whatever purpose without the application of the “Takings” clause.

Private property may be taken by the government for public purpose only. As established by jurisprudence, the government cannot seize private property for its personal use but only for public purpose.

The government has to provide just compensation to the owner of the private property. Accordingly, the government must compensate the private owner with respect to the market value of the land.