Right of Eminent Domain

Right of Eminent Domain

      Section 9. Private property shall not be taken for public use without just compensation.

   By eminent domain is meant the superior dominion of the sovereign power over all properties within  the state which authorizes it to appropriate all or any part thereof to a necessary public use upon payment of just compensation. It is a portion of sovereignty and it may be exercised by the State or its subdivisions like provinces, cities and municipalities.

   The foundation of the exercise of the  power of eminent domain are:

      a) That the property to be expropriated is a private property;
      b) There is necessity be of a public character; and
      c) Payment of just compensation

What Constitutes Taking

   The taking of private property by the State in the exercise of its power of eminent domain contemplates not only the actual physical seizure or appropriation of the property but also to its destruction or impairment, or to limitation of its usual and necessary employment or use by its owner, not as consequence of police power.

   Thus, there is taking of property under the power of eminent domain:

      1) when the owner is actually deprived or dispossessed of his property;
      2) when there is practical destruction or material impairment of the value of his property;
      3) when he is deprived of the ordinary use of his property;
      4) when he is deprived of the jurisdiction, supervision and control of his property.

Public Use

   The phrase for "public use" within the meaning of the constitutional provision contemplates public benefit, public utility or public advantage for the general public.

Just Compensation

   Just compensation means the value of the property at the time of the taking. It means a fair and full equivalent for the loss sustained by the owner of the property, to which must be added consequential benefits, if any. The market value of the property, which should be determined at the time of the taking, is the price which it will command where it is offered for sale by one who desires, but is not obliged to sell and is bought by one who is under no necessity of having it.

Authority to Expropriate

   The power of eminent domain belongs to the government. bu the determination  as to when this power is to be exercised, the purpose, and the property to be taken is a prerogative of the lawmaking body. It may exercise it directly by enacting the corresponding law or by any government act having the force and effect of law. It may exercise this power indirectly by delegating the same to any government official or agency, or provincial, city, municipal or barangay government or any private corporation engaged in enterprises imbued with public interest.

Kinds of Property to be Taken

   The constitutional provision contemplates the taking of all private property in the exercise of the governmental power of eminent domain of whatever nature and the purpose or object to which it is to be used. It may be real or personal property, tangible or intangible; franchises and contracts, copyrights and patents, but not including money raised by taxation.

Police Power

   Complimenting the power of the State to expropriate private property for public use upon payment of just compensation is the power of the State to take property under its police power and the power of taxation.

   Under its police power, the State may enact laws, regulations affecting persons and property as may be necessary for the welfare and convenience of the people in the field of public health, public morals, and public safety.

Power of Taxation

   On the other hand, under the taxation power of the State, the government may impose burden upon persons, property and property rights for the support of the operation of governmental
activities appropriate for the performance of its functions. The government cannot exist without the necessary funds to pay for expenses in the operation of its governmental activities. Consequently, the State has the right to compel all its citizens and their property to contribute their share by way of paying taxes.