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1981 Wis. L. Rev. 1263 (1981)
Reassessing the Impact of Eminent Domain in Early American Economic Development

handle is hein.journals/wlr1981 and id is 1279 raw text is: REASSESSING THE IMPACT OF EMINENT DOMAIN IN EARLY AMERICAN ECONOMIC DEVELOPMENT* TONY FREYER** Eminent domain, the right of government to take private property for public use, is an integral element of sovereignty in the United States. The delegation of this right to private enter- prise, though often controversial, has been a dynamic factor in the development of the nation's economy. During the nineteenth century, incorporation of transportation companies, particularly canal and railroad companies, was essential to the process of in- dustrialization that was transforming the nation. In both practi- cal and symbolic terms these corporations were instruments of the rising industrial order, and the right of eminent domain was vital to the construction of railroads and canals. The operation of this legal principle within the industrialization process reveals important patterns of character and power in American society.1 The right of eminent domain has generally been thought to have served the special needs of transportation companies to the detriment of others, particularly the landowner. This thesis has generally been supported by reference to those appellate court cases that supported the companies right to take property. Un- answered, however, is the extent to which these appellate deci- sions mirror the application of eminent domain law at the local level. This article examines the role of eminent domain in resolving local disputes. Far from supporting the thesis of one- * I wish to thank the Regional Economic History Research Center of the Eleuther- ian Mills-Hagley Foundation, the National Endowment for the Humanities, and the Charles Warren Center for financial aid in preparing this essay. I also wish to thank Willard Hurst, Stanley N. Katz, Stanley Engerman, Glenn Porter, Richard Latner, Jack Michael, William Nelson, Jennifer Nedelsky, Peter Temin, and Lois Green Carr for com- ments and criticisms. ** Assistant Professor of History, University of Alabama. B.A., San Diego State University; Ph.D., in History and Law, Indiana University. 1. E. DODD, AMERICAN BUSINESS CORPORATIONS UNTIL 1860, at 8, 44, 125-26, 158-61, 260, 404-05 (1954); H. FREND, PRECEDENTS OF CONVEYANCES AND OTHER INSTRUMENTS RE- LATING TO THE TRANSFER OF LAND TO RAILWAY COMPANIES (1846); I. REDFIELD, A PRACTI- CAL TREATISE UPON THE LAW OF RAILWAYS 111 (1858); T. SEDGWICK, A TREATISE ON THE MEASURE OF DAMAGES (1847); Thayer, The Right of Eminent Domain, 19 MON. L. RmP. 241, 301 (1856). 1263

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