A State’s Right of Taking Under Eminent Domain or Police Powers

In: Business and Management

Submitted By atjohns
Words 768
Pages 4
Anthony Johnson

Professor Aragon

Real Estate Law – FIR 4310

23 April 2015

Essay Assignment

A State’s Right of Taking Under Eminent Domain or Police Powers

Johnny Appleseed’s 356 acre fruit orchard was flooded and, as a result, he lost his crop for that year in addition to fruit trees that were damaged beyond repair. The government released water from a damaged dam to prevent it from catastrophically flooding a valley below. The question is was this a taking under the state’s right of eminent domain, therefore requiring compensation, or a taking under the state’s police powers, therefore no compensation is required. In my opinion, the damage to Johnny’s fruit orchard is a taking under the state’s police powers; therefore no compensation is required.

A “taking” defines as “to acquire possession or control of something” (Herman). However, the practice of eminent domain do not provide a clear context of taking, thus American courts put it into three categories: per se takings, regulatory takings, and exactions. Johnny’s case could be under the regulatory takings category. “Regulatory takings demand a fact-intensive, multi-factored inquiry into whether the governmental action amounts to an unreasonable interference with one’s private land rights, as to trigger the takings clause” (Herman).

But first, I want to define what police powers and eminent domain are. According to Encyclopedia Britannica, police power is “in U.S. constitutional law, the permissible scope of federal or state legislation so far as it may affect the rights of an individual when those rights conflict with the promotion and maintenance of the health, safety, morals, and general welfare of the public. Eminent domain, “also called condemnation or expropriation, is the power of government to take private property for public use with the owner’s consent…requiring the…...

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