If you consult American eminent domain treatises, all you get is confusion. “Nichols on Eminent Domain,” Section 4.105 (Lexis/Nexis 2002) had it for years that there were no juries in British eminent domain cases. Its more recent editions contain a lengthy, confusing discussion that gets involved with sovereign immunity and such, but avoids a clear cut statement of the rule and its British basis.
But the other authoritative eminent domain treatise, Orgel, “Valuation Under Eminent Domain,” Vol. 2, Section 25, pp. 268–71 (Michie Co. 1953), states with no equivocation that that trial by jury was used in British eminent domain cases until 1919 when it was abolished by Parliament. Neither treatise cites any British sources supporting its position. Older editions of Nichols tried but failed. Nichols used to make a passing reference to Blackstone’s Commentaries, but cited the wrong part of Blackstone’s treatise (2 Blackstone 259), which says nothing that remotely bears on the subject. However, at 3 Blackstone 258–259, we learn that the “inquest of office” said by the old Nichols text to be the old British nonjury proceeding to acquire land had nothing to do with eminent domain. It was a medieval procedure used to ascertain the king’s entitlement to land in cases of escheat, treason, intestacy, forfeiture, and the like. More important, Blackstone makes clear that even these proceedings were triable to juries, except in cases of forfeiture for treason. “For it is a part of the liberties of England, and greatly for the safety of the subjects, that the king may not enter upon or seize any man’s possession upon bare surmises without the intervention of a jury.” (Emphasis added).
You need not take my word for any of this. You can skip the confusing ancient stuff that few people understand (as our courts have done) and consult the horse’s mouth in the form of the modern British Court of Appeal opinion in De Keyser’s Royal Hotel Ltd. v. The King (1919). There, their Lordships review pertinent legal history (1708 to 1798) and, with the concurrence of all parties, including the British attorney general, conclude that “in default of agreement with the owners the true value [of the taken property] is to be ascertained by a jury.” So much for denying jury trials in English eminent domain cases.
British history also fails to support the belief that inverse condemnation cases were only the flip side of eminent domain, as American conventional wisdom has it. Indeed, if they were like British eminent domain cases, then on that logic alone they had to be triable to juries. But what about the notion that inverse condemnation is some newfangled American constitutional proceeding unknown to the common law and that the government was shielded from it by sovereign immunity? Not really.
Until the mid-19th century, most British eminent domain cases were filed by private “promoters” who, in each case, were authorized by Parliament to take private property for roads, railroads, canals, etc., upon payment of compensation to the taken land’s owners. But when promoters failed to pay or the parties could not agree on a price, British property owners could sue in tort, using a writ of trespass to recover damages. See the discussion in the De Keyser’s case. Like all other common law actions, these were triable to juries.
That is also the view of Professor Keith Davies, the leading authority on British eminent domain law (or “compulsory purchase” as the Brits put it) and the author of the foremost British treatise on the subject. Davies clarified things for us Colonials when he appeared as a guest lecturer and presented a paper titled “The Jury in Eminent Domain” at the ALI-ABA Course on Eminent Domain and Land Valuation Litigation in 2001, relying inter alia on Baron de Bode’s Case (1845). This case dispenses with the sovereign immunity myth by concluding with a court order that a jury be convened and try Baron de Bode’s claim against the Queen of England wherever she then may be in the realm. In short, the notion that cases of determining compensation for takings of private property were not tried to juries in England is mistaken, and this is as true of direct as of inverse condemnation cases.
It is a bedrock constitutional principle and a part of the civic ethos of our country that trial by jury is enshrined in the Bill of Rights for good reason: It is treasured as a fundamental guarantee of Americans’ freedoms that interposes the judgment of the community as a shield between the citizen and government excesses. Why then, when it comes to eminent domain, trial by jury is suddenly disfavored by judges, as if some sort of pesky impediment to good governance, is obscure. The purpose of the Bill of Rights was to protect the people from the government, not the other way around, and juries provide that protection in eminent domain cases as well as in others, as correctly noted by Justice William Douglas in United States v. Reynolds, 397 U.S. 14, 23–24 (1970).
Obviously, it is a tall order to ask the courts to reconsider a rule, even an erroneous one, that they have been repeating for over two centuries. But it seems to me that the intellectual integrity of the law and a candid acknowledgment of historical truth are too important to let this legal dog lie.