Liberal Decisions of the Courts about Eminent Domain

In general, the trend of court decisions, state and federal, has been to greatly expand the scope of eminent domain by expanding the definition of “public use,” leading one commentator to describe it to be of “wondrous elasticity.” From an early date the courts drew a distinction between a contribution to the prosperity of a community and situations where the public had a right to use the facility or service for which the property was taken. The former did not meet the “use” test and was therefore not a public use. Though there are many cases which attack the scope of the eminent domain power, they have not checked the growth of the power which now extends to many entities.

Considerable litigation developed in the latter half of the 19th century after states, to further settlement, delegated the power of eminent domain to private corporations such as railroads and utility companies. This led to a significant broadening of the definition of public use both in state and federal law, especially involving projects such as the T.V.A. in the 1930’s and 40’s and urban redevelopment and renewal in the 1960’s and 70’s. Ultimately, the U.S. Supreme Court held that a private home could be taken by a city from a citizen and transferred to a private corporation for a nominal sum on the premise that this property would be developed so that it would increase tax revenues and improve the city economically. The majority opinion relied upon previous cases dealing with “blighted” areas being redeveloped and a case from Hawaii which changed an old property ownership situation where a small group owned most of the private land.

That same expansive view of public use was adopted in Mississippi with the development of the Barnett Reservoir in the 1960’s, which involved leasing portions of the property acquired by eminent domain for single home developments, apartments, marinas, restaurants, shopping centers, and other facilities owned and operated by individuals for their own profit. There were a series of decisions by the Mississippi Supreme Court that this was to accommodate facilities for the use of the public patrons of the development, and notwithstanding the transfers to private individuals, the use was public.

Then in 1967, the concept of acquiring blighted property and selling it to private persons as a part of a redevelopment or urban renewal was approved if necessary to accomplish the purpose of renewal.
Other authorities demonstrate that as governments grow and economies develop in Mississippi the power of eminent domain has greatly expanded and the definition of public use has become so vague as to only be what the court says it is under any particular set of facts, so that Mississippi authority could lead to the same result as was reached in Kelo.


6 Kelo v. City of New London, 545 U.S. 469, 125 S.Ct. 2655 (2005)
7 See, e.g. Pearl River Val. Water Supply Dist. v. Brown, 156 So.2d 572 (Miss. 1963); Horne, 162 So.2d 504 (Miss. 1964).
8 Paulk v. Housing Authority of City of Tupelo, 195 So.2d 488 (Miss. 1967).