Land many issues surrounding the topic of
Land and Modern IndividualismThese days there have been many issues surrounding the topic of private property and eminent domain. I feel that eminent domain is a good way to keep the needs of the community and each persons individual property rights balanced. Even thought I believe individual property rights are more important that the needs of the community, I also believe the government sometimes has to take that property away for the better good of the community.
At the same time I also understand how people feel when they talk about NIMBY (not in my back yard), and also about their personal needs.Let me take you back into the history of the American land. After the 18th century, Americans turned their backs on the old ideas of the Puritans.
The Puritans believed in the population acting within the religious ways of the times. These new settlers had a very different idea in mind. They were going to claim this land anyway they could.
This brings us to Cronons argument in Bounding The Land. It is referring to the different beliefs on land ownership between the English colonists and the Native Americans. The English believed that the Indians squandered the lands natural resources and that they have no natural right to the land. Indians did not own the land, but only used, and lived off the lands resources. They only owned what they made and grew, and that was enough for them. But it certainly wasnt enough for the English.
They wanted to control the land using the technique of ownership or private property. That was the problem with Indian property rights. They didnt consist of any ownership or sovereignty. They had largely different perspectives on the ownership by the community and the individual ownership. Because of these large differences the English decided to take full control of the land. When they came to colonize they basically took the land from the Indians.
The only land that was rightfully the Indians was the land that was given to them by the English. What the English were doing bring us to the concept of eminent domain.Eminent domain is the moral groundwork by which government acquires private property through compulsory purchase. The idea holds that to advance the greater welfare of the public, government must be able to use land and other private goods to which it would not otherwise have access. It is defined at the 5th Amendment of the U.S.
Constitution as taking private property for public use with only compensation being paid to the landowner. This compensation was not seen in the case with the English and the Indians. These public uses have normally been railroads, highways, bridges, parks ext. Lately this eminent domain has been used for things completely different.
An example is in Pittsburgh, property owners are fighting to keep their land from being taken away to build malls, casinos and factories. This is one of the many examples of the abuse of eminent domain.This is where NIMBY is introduced. NIMBY, which stands for not in my backyard is used to 1.
Express opposition by local citizens to the locating in their neighborhood of a civic project. Some examples of these civic projects are: a jail, garbage dump, drug rehabilitation center, or anything that the community considers unsightly, dangerous and likely to lead to property values decreasing. From this is how they derived the compensation and eminent domain laws.
It is strange how they come up with these laws to compensate you after they have taken your land. This is where we come to the development of the property law. How did the protection of your private property come about? Protection and content are given to the ownership of property by custom or law. The type of property law in a society may be taken as an index of its social and economic system.
Even though there is a difference between realty and personality. Realty is chiefly land and improvements built thereon. Sometimes it is loosely described as lands, tenements, and hereditaments. Personality, or personal property, consists chiefly on movable, portable objects.
Personal property gives the owner the right to give, sell or determine the distribution of the property. Although this may be true, there are many different limits on ownership. Public authority does not own may be transferred where there is no heir to the owner. This is where the condemnation proceeding would come into play, which would be controlled by the power of eminent domain. So it seems that the government has a lot of power when it comes to your own property. This brings us to the term tenure, which is the landholding of any type of land. The nature of tenure has long been of great important, both in law and in the broader economic and political context.
They mention this term many times in the Bounding the Land article. It usually implies that the landholder does not have absolute possession but derives the right from another person. During these modern times land tenure has been a political issues throughout the world. It began the agitation between legislation and personal landowners. The struggle is whether land should be freely alienable dominated in the English land law. Sovereignty is also a function of tenure. We can thank Thomas Jefferson for his large contribution to sovereignty.
He espoused sovereignty for private property in the U.S. He said, Nothing is ours, which another may deprive us of. They are most certainly true today as they were then. He felt that the ownership of land is what separated the U.S. from England.
He felt that to own land was the right of every American. So in conclusion, the power and authority to condemn land does not originate from a constitutional or statutory provision. This power is overwhelming in all sovereign governments and, if not checked by constitutional and statutory provisions, the power is limitless. First, private property can be condemned, often by a wide variety of articles, as long as those articles are first given that authority by the legislative body. Second, private property may be taken for public purpose, a concept that has multiple meanings, so long as just compensation is provided to the private property owner. Third, private property owners are offered statutory protection from the random condemnation of property under principles of necessity and greatest public good with the least private injury.
Finally, these cases provide a glimpse into the judiciary’s interpretation of laws designed to protect the public. The courts have defined concepts governing public use, due process, necessity, and just compensation. They have also demonstrated their respect for legislative authority by recognizing and upholding the understanding that eminent domain is under control of the legislative body. Central to the evolution of the eminent domain statutes was the knowledge that condemning private property for public uses still required compensation, still required a legitimate purpose, and still required adequate protections for private property rights.
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