Right Of Eminent Domain

The inherent power of the sovereign or state to take private property, generally land, for public use, especially for a highway, with or without compensation. The Mishnah says of the king in mentioning his powers: "He leads the army in a voluntary war decreed by the Court of Seventy-one, and strikes out to make a highway for himself; and they do not hinder him; and the king's highway has no limit; and all the people take booty," etc. (Sanh. ii. 3). The reference in these last words to the incidents of war shows that only military roads were meant, not roads leading to the king's palace or garden. Maimonides ("Yad," Melakim, v. 3) adds after "no limit" the words "but according to what is needful, and he does not alter the direction of his lines to avoid this man's field, or that man's vineyard, but goes straight ahead."

As shown under Right of Way, a baraita fixes the width of highways between city and city, etc., as varying from eight to thirty-two cubits. The implication is that to obtain these highways the public has a right to condemn for the purpose strips of privately owned land. But the mode of procedure is not indicated in the Talmud; and later authorities, of course, do not discuss it, as the laying out of roads had then passed beyond the power and jurisdiction of the Jews.

It is not likely that the custom of allowing the state or a city community to condemn land for any other purpose than that of a highway ever prevailed in Israel—e.g., for public buildings, for King David set the precedent against such an action when hebought by private arrangement the thrashing-floor of Aravnah the Jebusite as a building-plot for the Tabernacle; or for the palace or pleasure-grounds of the king, for Elijah's stern rebuke against King Ahab for the latter's method of acquiring Naboth's vineyard stood out too strongly in men's memory as the highest testimony to the sacredness of private property in land. In short, the right of eminent domain was very closely limited.

E. C. L. N. D.