The first case of eminent domain in English law is called the "Dobbie Process" or the "King's Prerogative in Saltpeter Case". The English king needed saltpeter for munitions and took a saltpeter mine from a private individual. The private party sued the king and the court established the right of the sovereign to take "private property for public use" without liability for trespass but requiring payment of compensation for the taken saltpeter. When the colonies became the United States and the English Common Law was adopted as the law of the new nation, this principle was recognized. Contrary to popular belief, the Fifth Amendment to the Constitution did not establish this right in the U.S., as it was already inherent in common law. The Fifth Amendment limited the right of eminent domain by requiring that takings be for "public use" and that "just compensation" be paid for the taken property. The term eminent domain is used primarily in the States, where the term was derived in the mid-19th century from the legal treatise, De Jure Belli et Pacis, written by the Dutch jurist Hugo Grotius in 1625, who used the term dominium eminens and described the power as follows:
"... the property of subjects is under the eminent domain of the state, so that the state or he who acts for it may use and even alienate and destroy such property, not only in the case of extreme necessity, in which even private persons have a right over the property of others, but for ends of public utility, to which ends those who founded civil society must be supposed to have intended that private ends should give way. But it is to be added that when this is done the state is bound to make good the loss to those who lose their property."
However, another noted jurist, Samuel von Pufendorf, in his work, De Jure Naturae et Gentium criticized the usage of the term "eminent domain". In his analysis of the control ("potestas") of property he made a classification as follows:
(a) Control, in the proprietary sense, as of that which is one's own, he termed "dominium";
(b) Control, in the governmental or sovereign sense, as of that which belongs to others, he termed "imperium". It was his conclusion that a more accurate term for the power to take property for public use would be "imperium eminens".
Many other jurists, like Cornelius Bynkershoek and Heineccius also were of the same opinion as Puffendorf. However, Heineccius noted that though there is a difference and it is imperium that belongs to rulers, still it would be futile to condemn the term when it has been so widely accepted.
The legal principle is that all property in a jurisdiction is "owned" by the sovereign of it, and that authority to make law for that property is ultimate ownership. In a democratic nation the sovereign is the people, collectively, over all the territory of that nation. What private parties can "own" is not the land itself, but an equitable interest in title to an estate in the land or property, and it is that equitable interest to which they are entitled for compensation if the title to the estate is taken.
The term compulsory purchase, also originating in the mid-19th century, is used primarily in England and Wales (see compulsory purchase order, and other jurisdictions that follow the elements of English law. Originally, the power of eminent domain was assumed to arise from natural law as an inherent power of the sovereign. Some states (New York, Louisiana) use the term appropriation as a synonym for the exercising of eminent domain.
"... the property of subjects is under the eminent domain of the state, so that the state or he who acts for it may use and even alienate and destroy such property, not only in the case of extreme necessity, in which even private persons have a right over the property of others, but for ends of public utility, to which ends those who founded civil society must be supposed to have intended that private ends should give way. But it is to be added that when this is done the state is bound to make good the loss to those who lose their property."
However, another noted jurist, Samuel von Pufendorf, in his work, De Jure Naturae et Gentium criticized the usage of the term "eminent domain". In his analysis of the control ("potestas") of property he made a classification as follows:
(a) Control, in the proprietary sense, as of that which is one's own, he termed "dominium";
(b) Control, in the governmental or sovereign sense, as of that which belongs to others, he termed "imperium". It was his conclusion that a more accurate term for the power to take property for public use would be "imperium eminens".
Many other jurists, like Cornelius Bynkershoek and Heineccius also were of the same opinion as Puffendorf. However, Heineccius noted that though there is a difference and it is imperium that belongs to rulers, still it would be futile to condemn the term when it has been so widely accepted.
The legal principle is that all property in a jurisdiction is "owned" by the sovereign of it, and that authority to make law for that property is ultimate ownership. In a democratic nation the sovereign is the people, collectively, over all the territory of that nation. What private parties can "own" is not the land itself, but an equitable interest in title to an estate in the land or property, and it is that equitable interest to which they are entitled for compensation if the title to the estate is taken.
The term compulsory purchase, also originating in the mid-19th century, is used primarily in England and Wales (see compulsory purchase order, and other jurisdictions that follow the elements of English law. Originally, the power of eminent domain was assumed to arise from natural law as an inherent power of the sovereign. Some states (New York, Louisiana) use the term appropriation as a synonym for the exercising of eminent domain.
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