The power of eminent domain is not totally unlimited – there are areas in which the power to take can be challenged.
The Fifth Amendment to the United States Constitution and Article 3, Section 17 of the Mississippi Constitution allow the taking of private property only for a public use. Traditional examples of public use for which the government might exercise its power of eminent domain include such things as roads and highways, schools, police or fire stations and similar direct public uses.
Less traditional examples of public use include uses that are not open to the public but provide some public benefit include such things as electric power lines, gas transmission lines and similar uses. If the taking is for a use that is not a public use, the owner may be able to challenge the taking itself.
Even if the taking is for a public use, the taking still must be necessary for the completion of the public project for which it is taken. In some limited circumstances, the property owner may be able to challenge the taking on the grounds that the taking is not necessary. The Courts, however, defer generally to the governing boards of condemning agencies to decide what property is necessary.
Only when the Court finds that the board has abused its discretion will the property owner prevail in a lack of public necessity claim.
Finally, challenges can sometime be based on the failure of the condemning agency to follow condemnation procedures required by statute.
