The University of Wisconsin System has decided to exercise eminent domain in order to seize the Brothers Bar & Grill at the corner of University and Lake in order to complete the acquisition of land necessary for a planned performance hall for the School of Music. An agreement had been reached for the sale of the property last year for $2.1 million plus moving costs, but after the agreement was all but done, the UW System reversed course and opted to exercise eminent domain to condemn the property and pay the appraised market value of $1.25 million.

As part of the state government, the UW System has been legally granted the ability to use eminent domain to acquire property, though it uses that right very rarely. In this case, the System has defended the use as saving taxpayers a significant amount of money. You know, the taxpayers besides the Fortney family, owners of the Brothers Bar and Grill.

Eminent domain should not be used for this purpose, it is a legal concept that only has legitimacy when attached to needs as opposed to wants. It is perfectly understandable that the UW System did not want to overpay for the property, indeed it is exactly the motivation that should drive our civil servants. But it was not unfair for the Fortneys to negotiate for what they did. The level at which they are willing to sell their private property is not required to be comparable to fair market value. If the fair market value of someone’s private property is less than they are willing to sell it for, it is their perfectly appropriate choice to choose not to sell it at all. That is the very definition of private property. It isn’t their concern if that decision disturbs a third party’s plans for property it does not own.

The exercise of eminent domain is a distasteful act that becomes the lesser of two evils in a single case: when it is unavoidable that a public project for the greater good has to use somebody’s property (new freeways in crowded areas, extensions of airport runways). The legitimacy of even this hinges on the definition of “greater good,” a case which the UW System is hard pressed to make in this particular instance. The legal standing may be such that the UW System is on firm ground, but that does not mean that ethically this seizure is anything more than theft perpetrated in the name of the public.