Brief History of Eminent Domain

Eminent domain is the power to take private property for public use by the national and state governments, municipalities, other governmental entities, and other parties to whom the power has been delegated to exercise functions of public character. Neither the U.S. or State constitutions contain a provision granting the sovereign express power to condemn and take private property for its own use. The Courts, however, have generally held that the right of eminent domain was an inherent right of sovereignty and that a direct constitutional grant of that power was not necessary. Yet, the Bill of Rights of the U.S. Constitution has always contained the limitation that no person could be deprived of liberty or property except by due process of law. This limitation has also been in every Mississippi constitution since it was admitted into the Union in 1817.

The Federal government did not assert its power of eminent domain in its own name in its own courts until 1875. Though the Fourteenth Amendment, adopted in 1866, made the limitations of due process applicable to the states, it was not until 1896 that the Fifth Amendment limitations on federal takings were expressly found to apply to all eminent domain takings.

Mississippi courts also recognized early the “right inherent in all sovereignties” to eminent domain powers in a case in which legislative delegation of eminent domain power to railroads was approved. After 1832, the Mississippi Constitution had basically the same limitation of “due compensation” as the Fifth Amendment’s “just compensation.” In fact, since 1832, Mississippi constitutions had also contained the due compensation and public purpose limitations as was noted as early as 1860.

The first Mississippi Constitution of 1817 provided in Article I, Declaration of Rights, §10, that a person cannot be deprived of his life, liberty or property, but by due course of law. At this time only the southern one-third of the state was open to American settlement because the northern two-thirds was owned by the Chickasaw and Choctaw Indians. By 1832 all of these lands were ceded by the Indians and sold to American settlers and a new Mississippi Constitution was adopted. Its §10 was much the same as its 1817 due course of law predecessor but its §13 further provided that, “nor shall any person’s property be taken or applied to public use without the consent of the legislature, and without just compensation being first made therefor.”

The third constitution, adopted in 1868 included many changes brought about by the Civil War. Its Article I, Bill of Rights, carried forward in §2 its predecessor’s due process provisions and in its §10, set forth a provision that private property shall not be taken for public use, except upon due compensation first being made to the owner, or owners thereof, in a manner to be provided for by law with the requirement of approval by the Legislature being deleted.

This also was carried forward in later constitutions and ultimately into Article 3, §17 of the present Constitution of 1890 with the change added that the compensation was due if the property was “taken or damaged” and also an addition that when there was question as to whether a use was public, it was exclusively a judicial question regardless of legislative assertion.

Thus, the public use limitation has been a part of Mississippi constitutional law for more than 175 years as an express limitation upon eminent domain takings.



1 See, e.g., U.S. v. Jones, 109 U.S. 513 (1883).
2 Kohl v. U.S., 91 U.S. 367 (1875).
3 Fallbrook Irrigation District v. Bradley, 164 U.S. 112 (1896).
4 Brown v. Beatty, 34 Miss. 227, 5 George 227, 69 Am.Dec. 389 (1857).
5 Griffin v. Mixon, 38 Miss. 424, 9 George 429.