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Within any zone of government action in which plenary power has been granted by the Constitution to the federal government, the federal government has all the inherent powers of sovereignty. Among the powers inherent in every sovereign is the power of eminent domain.
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Under the Constitution the power of eminent domain means the right to take property for public use on payment, under the provisions of the Fifth Amendment, of just compensation for its value determined as of the time and the place of its taking.
The right of eminent domain is described in Kohl v. United States, 91 U.S. 367, 371, 23 L. Ed. 449, as an "offspring of political necessity"; and as "inseparable from sovereignty, unless denied to it by its fundamental law." In that case the court aptly observed that the provision of the Fifth Amendment, to the effect that private property should not be taken for public use without just compensation, was in itself an implied recognition of the existence of the power of eminent domain in the federal government in the zones of governmental action delegated to it by the Constitution.
In United States v. Jones, 109 U.S. 513, Mr. Justice Field said at pages 518-519, 3 S.Ct. 346, 350, 27 L. Ed. 1015: "The power to take private property for public uses, generally termed the right of eminent domain, belongs to every independent government. It is an incident of sovereignty, and, as said in Mississippi R. River Boom Co. v. Patterson, 98 U.S. 403, 406 [25 L. Ed. 206], requires no constitutional recognition. The provision found in the fifth amendment to the federal constitution, and in the constitutions of the several states, for just compensation for the property taken, is merely a limitation upon the use of the power. It is no part of the power itself, but a condition upon which the power may be exercised. It is undoubtedly true that the power of appropriating private property to public uses vested in the general government — its right of eminent domain, which Vattel defines to be the right of disposing, in case of necessity and for the public safety, of all the wealth of the country — cannot be transferred to a state any more than its other sovereign attributes; and that, when the use to which the property taken is applied is public, the propriety or expediency of the appropriation cannot be called in question by any other authority."
The power of eminent domain extends to all kinds of property without exception, whether real or personal, tangible or intangible. The court said in United States v. Lynah, 188 U.S. 445, at page 465, 23 S.Ct. 349, 355, 47 L. Ed. 539:
"All private property is held subject to the necessities of government. The right of eminent domain underlies all such rights of property. The government may take personal or real property whenever its necessities, or the exigencies of the occasion, demand. So, the contention that the government had a paramount right to appropriate this property may be conceded, but the Constitution in the 5th Amendment guarantees that when this governmental right of appropriation — this asserted paramount right — is exercised it shall be attended by compensation.
"The government may take real estate for a postoffice, a courthouse, a fortification, or a highway; or in time of war it may take merchant vessels and make them part of its naval force. But can this be done without an obligation to pay for the value of that which is so taken and appropriated? Whenever in the exercise of its governmental rights it takes property the ownership of which it concedes to be in an individual, it impliedly promises to pay therefor. Such is the import of the cases cited as well as of many others."
On the condition of payment of just compensation, property of many kinds have been requisitioned by the federal government under the power of eminent domain, and various methods have been used in its exercise of that power. The questions in which such requisitions have been concerned have usually come up only in cases involving the amount of compensation to be paid; for the right to requisition has, as far as I know, been unchallenged at least in the sense that it is challenged here. Instances of property taken by the federal government are: Coal, by the Navy, United States v. New River Collieries Company, 262 U.S. 341, 43 S.Ct. 565, 67 L. Ed. 1014; a bridge and the franchise therefor, by the War Department to improve a waterway, Monongahela Navigation Company v. United States, 148 U.S. 312, 13 S.Ct. 622, 37 L. Ed. 463; a site for a nitrate plant, by the War Department, Campbell v. United States, 266 U.S. 368, 370, 45 S.Ct. 115, 69 L. Ed. 328; land for lighthouses, by the Treasury Department, Chappell v. United States, 160 U.S. 499, 16 S.Ct. 397, 40 L. Ed. 510; contracts for the construction of ships by the President under the Emergency Shipping Act of June 15, 1917 (see 40 Stat. 182), Brooks Scanlon Corporation v. United States, 265 U.S. 106, 44 S.Ct. 471, 68 L. Ed. 934; Russian Volunteer Fleet v. United States, 282 U.S. 481, 51 S.Ct. 229, 75 L. Ed. 473, and Dutch merchant vessels in our ports seized by the President in 1917 during the World War. There has not been, so far as I am aware, any litigation in our courts over such seizure because this extreme exercise of the sovereign's right of eminent domain is recognized under
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international law in time of war and is therein called the right of angary. Pitt Cobbett's Cases on International Law (4th Ed.) vol. II, pp. 384-387.
Eminent domain
