First of all, our thanks to the Volokh Conspiracy for letting us know that there is a new blog that publishes on line short summaries of law review articles. Good idea. There used to be a print publication like that in the 1970s. You can thus read the nub of what each author has to say, without slogging through all the academic fog that so often afflicts law review articles. Just Google the phrase LegalWorkshop.org and you got it.
When we visited that site, our attention was attracted to an exchange in the University of Chicago Law Review, between Professors Abraham Bell and Richard Epstein, on the subject of private takings. We recommend you take a look at it.
What we found astonishing in reading that exchange is that Professor Bell does not seem to understand the difference between public use and public ownership. In other words, the Constitution does not say anything, one way or another, whether the taker-user of the property that is taken by eminent domain must be public. The Constitution speaks of public use, not public ownership. And privately owned entities like public utilities, railroads etc. that dedicate their facilities to public use and accept severe government regulation as part of the deal, provide a perfect example of public use being provided by privately owned entities. That is something that goes way back to grist mills that had to mill grain for all comers even though they were privately owned.
The power of eminent domain is a dormant legislative power that may not be exercised without legislative authorization. And the legislature can authorize any person or entity to exercise it, subject to the constitutional limitation of “public use.” The legislature is thus free to delegate the taking power to any party it chooses, not necessarily a public entity.
So we hope that this won’t come as too much of a shock to Professor Bell, but in all likelihood he personally holds the power of eminent domain. Most, if not all, states have statutes that authorize all persons to condemn access to their dwellings when they own landlocked land. Honest, Professor. We wouldn’t make that up, but if you doubt us, see California Civil Code § 1001. And if you want to have real fun, take a look at the pre-1976 version of that Code section. While you are at it, also see Linggi v. Garovotti, 45 Cal.2d 20, 286 P.2d 15 (1955) (condemnation of a sewer easement by a private owner of an apartment house is OK because sewers are a public use).