essays and articles by david g allen

Eminent Domain Has Become Imminent Domain


In the annals of property condemnation by the government’s exercise of eminent domain, there are winners and losers. And in rare cases, the status quo held.


The theory of the Communists may be summed up in this simple sentence: Abolition of private property.

Karl Marx and Frederick Engels, The Communist Manifesto, 1848


The winners, of course, are easy to spot. You see their land every time you exit the interstate. While ten houses on one street might have been cleared away for a new highway, the untouched adjoinder properties soared in value when the exit ramps opened to traffic. 

As for the status quo being unchanged, I invite you to travel US 50 in Harrison County. Just east of Salem stands the Bristol United Methodist Church, a rather substantial brick structure that originally sat alongside old US 50 until it was condemned for construction of Appalachian Corridor D, the present four-lane superhighway.

The Bristol congregation was not ready to see their church demolished, so they used their condemnation check to hire Goff Brothers Co. of Pullman, WV to move the church up on the hillside. If you had witnessed the church being lugged uphill to its present site, you would believe in miracles. Not a brick was lost nor a window cracked in the ascent.

The big losers in eminent domain condemnations tend to be the landowners whose property is partially taken. The William Kester farm in Harrison County is the best example of the ruinous effects of a partial taking that I know of.

Nearly every acre of Mr. Kester’s bottomland was condemned to build the Saltwell interchange of Interstate 79. That left him owning only hillside land on each side of the interchange. And as if done in a fit of spite, the new highway snipped five feet off of one corner of the Kester’s house, leaving it uninhabitable. But rather than tear his house down, Mr. Kester sawed off the small wedge that the state could not do without, and then he nailed siding boards across the diagonal to close the opening.

The Kester house overlooks Exit 125 from the southwest and remains as a monument to the cruelty that the government’s power of eminent domain can inflict on a proud farmer.

The well-connected and certain politicians have enjoyed their own version of eminent domain. These scurrilous cheats either had the new highway built to their land or knew years in advance where the highway was headed and bought the right land before the public was allowed to see the plans.

In the 1960’s, LOOK magazine featured an expose about a South Carolina Congressman who owned a large tract of rural land. By coincidence, if we are to believe the congressman’s story, the new interstate just happened to access his land with an interchange. 

Do the well-connected still take advantage of inside information? Perhaps. The mayor of Erie, PA faces trial for a land deal related to a race track and redevelopment project in that city. 

In 1954, the Supreme Court expanded the power of eminent domain when it ruled that blighted urban land could be seized for redevelopment. It was just a matter of time before the court reached its 5-4 decision in Kelo vs. City of New London which allows the taking of private property for “public benefit.” We will have to wait for a future decision (or decisions) for the court to set the limits of “public benefit.”

At present, the federal court system consistently restricts land use by humans whenever the Endangered Species Act comes into play. Even our national borders cannot be walled off because that would interfere with the migration of some of the animals and birds on the endangered list. Along with the Kelo decision, it is now fair to say that you, as a property owner, have almost no standing in the courts. The pygmy cactus owl or the colossus shopping mall can take your land on a whim.

Central planners decide which animals are classified as endangered species. Central planners decide the curricula that your children study in the public schools. Central planners decide the size of your local airport. Central planners even decide which military bases are to be closed. And with the high court’s blessing, central planners are defining the words “public benefit” as they have already done for New London, CT.

Central planners also decide where the highway exits are built. But as Nobel economist F. A. Hayek pointed out in The Road to Serfdom, it is the route that central planners invariably choose, and not the actual pavement, that gives the book its name.

David G. Allen
Clarksburg, WV 

David G. Allen is a former Assistant Commissioner of the WV Department of Highways.  "Eminent Domain" appeared in the July 22, 2005 issue of the West Virginia "State Journal."




Copyright 1990-2005  David G. Allen