How Government Acquires Private Land for Public Use - dummies

How Government Acquires Private Land for Public Use

By Alan R. Romero

The government often acquires legal title from individuals. Of course, a private individual may give or sell title to the government, just as she may give or sell title to third parties. But the government acquires title from individuals in other ways too, including dedication, eminent domain, escheat, and forfeiture.

Transferring land rights through dedication

A private owner may give land to the government or to the public by dedication. Under the common law, a dedication is a private owner’s declaration that she intends to dedicate her land for a public use, such as a highway, a park, or a school. She may indicate her intention by a written instrument, or she may instead indicate her intention by words and actions.

Statutes also may specify circumstances in which a private owner dedicates land to the local government. Unlike common law dedications, statutory dedications actually give title to the government. For example, statutes commonly say that publicly recording a subdivision plat map that shows public streets, parks, or other public areas has the effect of dedicating those lands to the government for the purposes indicated on the plat map.

Taking property rights through eminent domain

Federal and state governments have the inherent sovereign power, called eminent domain, to take property from private owners for the benefit of the public. States generally grant this power to local governments and some quasi-public entities like utilities as well.

The government may take property for actual public use, such as for a park or school, or for a private use that will benefit the public, such as by economically revitalizing a depressed area.

The Fifth Amendment (which applies to state and local governments through the Fourteenth Amendment) requires the government to pay just compensation for land that it takes by eminent domain. So do state constitutional clauses. Just compensation generally means the market value of the property taken.

Taking property rights through escheat

If a person dies without validly conveying property by will, state statutes specify the person’s heirs who are entitled to take the property. But if the person has no heir who can take the property, the state takes title to it by escheat.

Taking property rights through forfeiture

Private owners may forfeit land to the government. Some state and federal statutes say that if someone uses property to commit a crime or buys property with money from criminal activity, such as drug trafficking, the property is forfeited to the government. Some state statutes also provide that if a corporation acquires land in violation of law, the land shall be forfeited to the state.