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Condemnation of Mining Properties—Reflections on the Substantive Power of Eminent Domaina1

Robert S. Campbell, Jr., Proceedings of 14th Annual Rocky Mountain Mineral Law Institute (1968)

In the legal diagnosis of the right of eminent domain as applied to mining property, we may take as a beginning reference the writings of the early Dutch jurist Hugo Grotius, who in his classic work De Jure Belli ac Pacis,1 stated that the property of subjects, although inviolable as against others:

[I]s under the eminent domain of the State, so that the State...may use and even alienate and destroy such property, not only in cases of extreme necessity...but for ends of public utility....But it is to be added that when this is done the State is bound to make good the loss to those who lose their property....

While the genesis of the right as seen by Grotius has come under question, case precedent and statute have [232] quite generally adopted this definition as the standard.2 It is thus the pre-eminent right of the sovereign to take private property against the owner's consent, conditioned upon the making of a fair compensation.

Natural Appendage of Government

While Grotius and others who followed have argued that eminent domain stems from a natural or implied reservation by the sovereign in the original property grant to the individual (the reservation to be exercised and the property recalled in case of public exigency),3 such position has not been accepted in the decisions. Its rejection is sound. Not only does the reservation theory do v