The Original Meaning of 'Public Use' in Ohio: Returning to First Principles for the Protection of Individual Property Rights

Abstract

The government’s power to condemn private property is limited by the requirement that the property be for “public use.” According to the strictly applied public-use standard, private property may be condemned only when the public will use, or have the right to use, the appropriated property, or when the government will own/use the property. From 1802 to 1953, the Ohio Supreme Court held that the Ohio Constitution required this public-use rule. But in State ex rel. Bruestle v. Rich (1953), the Ohio Supreme Court adopted a broad, public-welfare rule, according to which the term “use” was read to mean “something useful to the public,” and under which the government may appropriate property in order to benefit the public-at-large or to promote the “public welfare.” Since 1953 in Ohio, private property may be appropriated “even though it is contemplated that there will at some future time be no use or right of use of the property taken on the part of the public or some limited portion thereof.” In City of Norwood v. Horney (2006), the Ohio Supreme Court - no doubt partly in response to the United State Supreme Court’s decision in Kelo v. City of New London (2005) - held that the Ohio Constitution precludes takings for economic development alone. Norwood, however, otherwise reaffirmed the broad, public-welfare standard adopted in Bruestle. This Article will show that the Bruestle ruling misinterpreted the Ohio Supreme Court's long-standing eminent-domain jurisprudence and ignored the Lockean rationales on which that jurisprudence was based. Therefore, this Article describes the “first principles” of Ohio’s fundamental law (its constitution) and the state’s pre-1953 eminent-domain jurisprudence. It is hoped that a return to first principles will lead to the full protection of individuals’ fundamental rights in private property.

Keywords: eminent domain, public use, property rights

JEL Classification: K10, K11