PROCEDURE IN THE CONDEMNATION OF LAND
The extraordinary right of the community to take private land even against the will of the owner necessitates extraordinary protection to the individual. This protection is written into every state constitution excepting that of North Carolina, and the clause is interpreted, not as a declaration of the power of eminent domain, which is inherent in sovereignty, but as a limitation on that power. This protection is further guaranteed to the citizens of every state by the Fourteenth Amendment of the Federal Constitution. Private property can be taken for a public purpose only after “due legal process” and the payment of compensation, but the guarantee of the Federal Constitution does not compel uniformity in the provisions of all states. “Due legal process” in condemnation proceedings is satisfied by a great variety of statutory requirements, the only essential being that they shall contain provisions for determining compensation, for giving proper notice, and for hearing remonstrants. On the methods of determining these three essentials depend the simplicity and economy of condemnation procedure.
Most states give the further right to the land owner at some stage of the proceedings of having his compensation ascertained by a common law jury. In the absence of specific language to that effect it is generally held that the owner has no right to a jury in land damage cases, since at common law before 1787, in both England and America, compensation in such cases was ascertained by other tribunals without the right of appeal to a jury of twelve. Constitutions giving in general terms a right of trial by jury are interpreted to refer only to such cases as were tried by jury at the common law. Many states, however, have granted jury trials in eminent domain cases by statute, while other states have construed clauses of their constitutions as applicable to eminent domain proceedings and have allowed a jury trial.
The method of ascertaining the compensation is the first consideration of a municipality endeavoring to reduce the cost of taking land for public purposes, but the other elements of “due legal process” are responsible for much of the delay in condemnation procedure and may affect considerably the amount of compensation. Every hearing requires either a notice to property owners or legal service in hand, by mail, or by publication. After every hearing, time must be allowed for protest and appeals and the report of every hearing must be published. As the hearings grow more numerous the expense of advertising becomes a large item, and every addition to the length or complexity of the procedure involves an increase of counsel and witness fees or other legal expenses. Consequently, the elimination of any one of the steps in condemnation procedure has an important bearing on the question of reducing the size of the city’s investment. We may best consider the provisions for notice and hearing together.