Most people know the Fifth Amendment includes the right to remain silent. But a less-talked-about piece of the Fifth Amendment protects private property from being seized by the government without compensation. This is known as the “takings clause.”
“…nor shall private property be taken for public use, without just compensation.”
United States Library of Congress, The Constitution of the United States of America: Analysis and Interpretation
“The Fifth Amendment to the Constitution says ‘nor shall private property be taken for public use, without just compensation.’ This is a tacit recognition of a preexisting power to take private property for public use, rather than a grant of new power.1 Eminent domain appertains to every independent government. It requires no constitutional recognition; it is an attribute of sovereignty.2 In the early years of the nation the federal power of eminent domain lay dormant as to property outside the District of Columbia,3 and it was not until 1876 that its existence was recognized by the Supreme Court.
In Kohl v. United States4 any doubts were laid to rest, as the Court affirmed that the power was as necessary to the existence of the National Government as it was to the existence of any state. The federal power of eminent domain is, of course, limited by the grants of power in the Constitution, so that property may only be taken for the effectuation of a granted power,5 but once this is conceded the ambit of national powers is so wide-ranging that vast numbers of objects may be affected.6 This prerogative of the National Government can neither be enlarged nor diminished by a state.7 Whenever lands in a state are needed for a public purpose, Congress may authorize that they be taken, either by proceedings in the courts of the state, with its consent, or by proceedings in the courts of the United States, with or without any consent or concurrent act of the state.8
Prior to the adoption of the Fourteenth Amendment, the power of eminent domain of state governments was unrestrained by any federal authority.9 The Just Compensation Clause of the Fifth Amendment did not apply to the states,10 and at first, the contention that the Due Process Clause of the Fourteenth Amendment afforded property owners the same measure of protection against the states as the Fifth Amendment did against the Federal Government was rejected.11 However, within a decade the Court rejected the opposing argument that the amount of compensation to be awarded in a state eminent domain case is solely a matter of local law. On the contrary, the Court ruled, although a state legislature may prescribe a form of procedure to be observed in the taking of private property for public use, it is not due process of law if provision be not made for compensation. The mere form of the proceeding instituted against the owner cannot convert the process used into due process of law if the necessary result is to deprive him of his property without compensation.12 Although the guarantees of just compensation flow from two different sources, the standards used by the Court in dealing with the issues appear to be identical, and both federal and state cases will be dealt with herein without expressly continuing to recognize the two different bases for the rulings.
The power of eminent domain is inherent in government and may be exercised only through legislation or legislative delegation. Although such delegation is usually to another governmental body, it may also be to private corporations, such as public utilities, railroad companies, or bridge companies, when they are promoting a valid public purpose.13
Explicit in the Just Compensation Clause is the requirement that the taking of private property is for public use; one cannot be deprived of his property for any reason other than public use, even with compensation.14 The question of whether a particular intended use is a public use is clearly a judicial one,15 but the Court has always insisted on a high degree of judicial deference to the legislative determination.16 The role of the judiciary in determining whether that power is being exercised for a public use is an extremely narrow one.17 When it is state action being challenged under the Fourteenth Amendment, there is the additional factor of the Court’s willingness to defer to the highest court of the state in resolving such an issue.18 As early as 1908, the Court was obligated to admit that, notwithstanding its retention of the power of judicial review, [n]o case is recalled where this court has condemned as a violation of the Fourteenth Amendment a taking upheld by the state court as a taking for public uses.19
However, in a 1946 case involving federal eminent domain power, the Court cast considerable doubt upon the power of courts to review the issue of public use. We think that it is the function of Congress to decide what type of taking is for a public use and that the agency authorized to do the taking may do so to the full extent of its statutory authority.20 There is some suggestion that the scope of the judicial power to determine what is a ‘public use’ may be different as between Fifth and Fourteenth Amendment cases, with greater power in the latter type of cases than in the former,21 but it may well be that the case simply stands for the necessity for great judicial restraint.22 Once it is admitted or determined that the taking is for public use and is within the granted authority, the necessity or expediency of the particular taking is exclusively in the legislature or the body to which the legislature has delegated the decision, and is not subject to judicial review.23
At an earlier time, the factor of judicial review would have been vastly more important than it is now, inasmuch as the prevailing judicial view was that the term public use was synonymous with use by the public and that if there was no duty upon the taker to permit the public as of right to use or enjoy the property taken, the taking was invalid. But this view was rejected some time ago.24 The modern conception of public use equates it with the police power in the furtherance of the public interest. No definition of the reach or limits of the power is possible, the Court has said, because such definition is essentially the product of legislative determinations addressed to the purposes of government, purposes neither abstractly nor historically capable of complete definition. Public safety, public health, morality, peace and quiet, law and order—these are some of the traditional application[s] of police power. Effectuation of these matters being within the authority of the legislature, the power to achieve them through the exercise of eminent domain is established. For the power of eminent domain is merely the means to the end.25 Subsequently, the Court put forward an added indicium of public use: whether the government purpose could be validly achieved by tax or user fee.27 Traditionally, eminent domain has been used to facilitate transportation, the supplying of water, and the like,26 but the use of the power to establish public parks, to preserve places of historic interest, and to promote beautification has substantial precedent.28
The Supreme Court has also approved generally the widespread use of the power of eminent domain by federal and state governments in conjunction with private companies to facilitate urban renewal, destruction of slums, erection of low-cost housing in place of deteriorated housing, and the promotion of aesthetic values as well as economic ones. In Berman v. Parker,29 a unanimous Court observed: The concept of the public welfare is broad and inclusive. The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled. For public use, then, it may well be that public interest or public welfare is the more correct phrase.30 Berman was applied in Hawaii Housing Auth. v. Midkiff,31 upholding the Hawaii Land Reform Act as a rational effort to correct deficiencies in the market determined by the state legislature to be attributable to land oligopoly. The direct transfer of land from lessors to lessees was permissible, the Court held, there being no requirement that government possesses and use the property at some point during a taking.32 The ‘public use’ requirement is coterminous with the scope of a sovereign’s police powers, the Court concluded.33
The expansive interpretation of public use in eminent domain cases may have reached its outer limit in Kelo v. City of New London.34 There, a five-justice majority upheld as a public use the private-to-private transfer of land for purposes of economic development, at least in the context of a well-considered, areawide redevelopment plan adopted by a municipality to invigorate a depressed economy. The Court saw no principled way to distinguish economic development from the economic purposes endorsed in Berman and Midkiff, and stressed the importance of judicial deference to the legislative judgment as to public needs. At the same time, the Court cautioned that private-to-private condemnations of individual properties, not part of an integrated development plan raise a suspicion that a private purpose [is] afoot.35 A vigorous four-justice dissent countered that localities will always be able to manufacture a plausible public purpose, so that the majority opinion leaves the vast majority of private parcels subject to condemnation when a higher-valued use is desired.36 Backing off from the Court's past endorsements in Berman and Midkiff of a public use/police power equation, the dissenters referred to the errant language of these decisions, which was unnecessary to their holdings.37
If real property is condemned the market value of that property must be paid to the owner. But there are many kinds of property and many uses of property that cause problems in computing just compensation. It is not only the full fee simple interest in land that is compensable property,38 but also such lesser interests as easements39 and leaseholds. If only a portion of a tract is taken, the owner’s compensation includes any element of value arising out of the relation of the part taken to the entire tract.40 On the other hand, if the taking has in fact benefitted the owner, the benefit may be set off against the value of the land condemned,41 although any supposed benefit which the owner may receive in common with all from the public use to which the property is appropriated may not be set off.42 When certain lands were condemned for park purposes, with resulting benefits set off against the value of the property taken, the subsequent erection of a fire station on the property instead was held not to have deprived the owner of any part of his just compensation.43
The Court has also held that the government has a categorical duty to pay just compensation when it physically takes personal property, just as when it takes real property.44
In Horne v. Department of Agriculture, the Court held that a raisin marketing order issued under a Depression-era statute requiring raisin growers to reserve a percentage of their total crop for the federal government to dispose of in its discretion constituted a clear physical taking because, even though the scheme was intended to benefit the growers by maintaining stable markets for raisins, the actual raisins are transferred from the growers to the Government.45 The Court further held the government could not avoid paying just compensation for this physical taking by providing for the return to the raisin growers of any net proceeds from the government’s sale of the reserve raisins.46 The majority also rejected the government’s argument that the reserve requirement was not a physical taking because raisin growers voluntarily participated in the raisin market.47 In so doing, the Court noted that selling produce in interstate commerce is not a special government benefit that the Government may hold hostage, to be ransomed by the waiver of constitutional protection.48 In addition, the Court determined that the value of the raisins for takings purposes was their fair market value, with no deduction for the offsetting benefits of the overall statutory scheme, which is intended to maintain stable markets for raisins.49
Interests in intangible as well as tangible property are subject to protection under the Taking Clause. Thus compensation must be paid for the taking of contract rights,50 patent rights,51 and trade secrets.52 So too, the franchise of a private corporation is a property that cannot be taken for public use without compensation. Upon condemnation of a lock and dam belonging to a navigation company, the government was required to pay for the franchise to take tolls as well as for the tangible property.53 The frustration of a private contract by the requisitioning of the entire output of a steel manufacturer is not a taking for which compensation is required,54 but government requisitioning from a power company of all the electric power which could be produced by use of the water diverted through its intake canal, thereby cutting off the supply of a lessee which had a right, amounting to a corporeal hereditament under state law, to draw a portion of that water, entitles the lessee to compensation for the rights taken.55 When, upon default of a ship-builder, the Government, pursuant to contract with him, took title to uncompleted boats, the material men, whose liens under state laws had attached when they supplied the shipbuilder, had a compensable interest equal to whatever value these liens had when the government took or destroyed them in perfecting its title.56 As a general matter, there is no property interest in the continuation of a rule of law.57 And, even though state participation in the social security system was originally voluntary, a state had no property interest in its right to withdraw from the program when Congress had expressly reserved the right to amend the law and the agreement with the state.58 Similarly, there is no right to the continuation of governmental welfare benefits.59
The issue of whether one’s property has been taken with the consequent requirement of just compensation can hardly arise when government institutes condemnation proceedings directed to it. Where, however, physical damage results to the property because of government action, or where regulatory action limits activity on the property or otherwise deprives it of value,60 whether there has been a taking in the Fifth Amendment sense becomes critical.
The older cases proceeded on the basis that the requirement of just compensation for property taken for public use referred only to direct appropriation, and not to consequential injuries resulting from the exercise of lawful power.61 Accordingly, a variety of consequential injuries were held not to constitute takings: damage to abutting property resulting from the authorization of a railroad to erect tracts, sheds, and fences over a street;62 similar deprivations, lessening the circulation of light and air and impairing access to premises, resulting from the erection of an elevated viaduct over a street, or resulting from the changing of a grade in the street.63 Nor was government held liable for the extra expense which the property owner must obligate in order to ward off the consequence of the governmental action, such as the expenses incurred by a railroad in planking an area condemned for a crossing, constructing gates, and posting gatemen,64 or by a landowner in raising the height of the dikes around his land to prevent their partial flooding consequent to private construction of a dam under public licensing.65
But the Court also decided long ago that land can be taken in the constitutional sense by physical invasion or occupation by the government, as occurs when the government floods land permanently or recurrently.66 A later formulation was that property is taken in the constitutional sense when inroads are made upon an owner’s use of it to an extent that, as between private parties, a servitude has been acquired either by agreement or in course of time.67 It was thus held that the government had imposed a servitude for which it must compensate the owner on land adjoining its fort when it repeatedly fired the guns at the fort across the land and had established a fire control service there.68 In two major cases, the Court held that the lessees or operators of airports were required to compensate the owners of adjacent land when the noise, glare, and fear of injury occasioned by the low altitude overflights during takeoffs and landings made the land unfit for the use to which the owners had applied it.69 Eventually, the term inverse condemnation came to be used to refer to such cases where the government has not instituted formal condemnation proceedings, but instead the property owner has sued for just compensation, claiming that governmental action or regulation has taken his property.70
The repeated holdings that riparian ownership is subject to the power of Congress to regulate commerce constitute an important reservation to the developing law of liability in the taking area. When damage results consequentially from an improvement to a river’s navigable capacity, or from an improvement on an unnavigable river designed to affect navigability elsewhere, it is generally not a taking of property but merely an exercise of a servitude to which the property is always subject.71 This exception does not apply to lands above the ordinary high-water mark of a stream,72 hence is inapplicable to the damage the government may do to such fast lands by causing overflows, erosion, and otherwise, consequent on erection of dams or other improvements.73 And, when previously unnavigable waters are made navigable by private investment, government may not, without paying compensation, simply assert a navigation servitude and direct the property owners to afford public access.74
Read More: Regulatory Takings
1. United States v. Carmack, 329 U.S. 230, 241–42 (1946). The same is true of just compensation clauses in state constitutions. Boom Co. v. Patterson, 98 U.S. 403, 406 (1878). For in-depth analysis of the eminent domain power, see 1 Nichols on Eminent Domain (Julius L. Sackman, 2006).
2. Boom Co., 98 U.S. at 406.
3. Prior to this time, the Federal Government pursued condemnation proceedings in state courts and commonly relied on state law. Kohl v. United States, 91 U.S. 367, 373 (1876); United States v. Jones, 109 U.S. 513 (1883). The general statutory authority for federal condemnation proceedings in federal courts was not enacted until 1888. Act of Aug. 1, 1888, ch. 728, 25 Stat. 357. See 1 Nichols on Eminent Domain § 1.24 (Julius L. Sackman, 2006).
4. 91 U.S. 367 (1876).
6. E.g., California v. Central Pacific Railroad, 127 U.S. 1, 39 (1888) (highways); Luxton v. North River Bridge Co., 153 U.S. 525 (1894) (interstate bridges); Cherokee Nation v. Southern Kansas Ry, 135 U.S. 641 (1890) (railroads); Albert Hanson Lumber Co. v. United States, 261 U.S. 581 (1923) (canal); Ashwander v. TVA, 297 U.S. 288 (1936) (hydroelectric power). Once the object is within the authority of Congress, the right to realize it through the exercise of eminent domain is clear. For the power of eminent domain is merely the means to the end. Berman v. Parker, 348 U.S. 26, 33 (1954).
8. Chappell v. United States, 160 U.S. 499, 510 (1896). The fact that land included in a federal reservoir project is owned by a state, or that its taking may impair the state’s tax revenue, or that the reservoir will obliterate part of the state’s boundary and interfere with the state’s own project for water development and conservation, constitutes no barrier to the condemnation of the land by the United States. Oklahoma ex rel. Phillips v. Atkinson Co., 313 U.S. 508 (1941). So too, land held in trust and used by a city for public purposes may be condemned. United States v. Carmack, 329 U.S. 230 (1946).
11. Davidson v. City of New Orleans, 96 U.S. 97 (1877). The Court attached most weight to the fact that both due process and just compensation were guaranteed in the Fifth Amendment while only due process was contained in the Fourteenth, and refused to equate the missing term with the present one.
13. Noble v. Oklahoma City, 297 U.S. 481 (1936); Luxton v. North River Bridge Co., 153 U.S. 525 (1894). One of the earliest examples of such delegation is Custiss v. Georgetown & Alexandria Turnpike Co., 10 U.S. (6 Cr.) 233 (1810).
15. It is well established that in considering the application of the Fourteenth Amendment to cases of expropriation of private property, the question what is a public use is a judicial one. City of Cincinnati v. Vester, 281 U.S. 439, 444 (1930).
16. Kelo v. City of New London, 545 U.S. 469, 482 (2005). The taking need only be rationally related to a conceivable public purpose. Id. at 490 (Justice Kennedy concurring).
17. Berman v. Parker, 348 U.S. 26, 32 (1954) (federal eminent domain power in District of Columbia).
18. Green v. Frazier, 253 U.S. 233, 240 (1920); City of Cincinnati v. Vester, 281 U.S. 439, 446 (1930). See also Hawaii Housing Auth. v. Midkiff, 467 U.S. 229 (1984) (appeals court erred in applying more stringent standard to action of the state legislature).
19. Hairston v. Danville & Western Ry., 208 U.S. 598, 607 (1908). An act of condemnation was voided as not for a public use in Missouri Pac. Ry. v. Nebraska, 164 U.S. 403 (1896), but the Court read the state court opinion as acknowledging this fact, thus not bringing it within the literal content of this statement.
20. United States ex rel. TVA v. Welch, 327 U.S. 546, 551–52 (1946). Justices Reed and Frankfurter and Chief Justice Stone disagreed with this view. Id. at 555, 557 (concurring).
21. 327 U.S. at 552.
22. So it seems to have been considered in Berman v. Parker, 348 U.S. 26, 32 (1954).
23. Rindge Co. v. Los Angeles County, 262 U.S. 700, 709 (1923); Bragg v. Weaver, 251 U.S. 57, 58 (1919); Berman v. Parker, 348 U.S. 26, 33 (1954). When the legislature’s purpose is legitimate and its means are not irrational, our cases make clear that empirical debates over the wisdom of takings are not to be carried out in federal courts. Hawaii Housing Auth. v. Midkiff, 467 U.S. 229, 242–43 (1984).
26. Brown v. Legal Found. of Washington, 538 U.S. 216, 232 (2003). But see id. at 242 n.2 (Justice Scalia dissenting).
27. E.g., Kohl v. United States, 91 U.S. 367 (1876) (public buildings); Chicago M. & S.P. Ry. v. City of Minneapolis, 232 U.S. 430 (1914) (canal); Long Island Water Supply Co. v. Brooklyn, 166 U.S. 685 (1897) (condemnation of privately owned water supply system formerly furnishing water to municipality under contract); Mt. Vernon-Woodberry Cotton Duck Co. v. Alabama Interstate Power Co., 240 U.S. 30 (1916) (land, water, and water rights condemned for production of electric power by public utility); Dohany v. Rogers, 281 U.S. 362 (1930) (land taken for purpose of exchange with a railroad company for a portion of its right-of-way required for widening a highway); Delaware, L. & W.R.R. v. Town of Morristown, 276 U.S. 182 (1928) (establishment by a municipality of a public hack stand upon driveway maintained by railroad upon its own terminal grounds to afford ingress and egress to its patrons); Clark v. Nash, 198 U.S. 361 (1905) (right-of-way across neighbor’s land to enlarge irrigation ditch for water without which land would remain valueless); Strickley v. Highland Boy Mining Co., 200 U.S. 527 (1906) (right of way across a placer mining claim for aerial bucket line). In Missouri Pacific Ry. v. Nebraska, 164 U.S. 403 (1896), however, the Court held that it was an invalid use when a State attempted to compel, on payment of compensation, a railroad, which had permitted the erection of two grain elevators by private citizens on its right-of-way, to grant upon like terms a location to another group of farmers to erect a third grain elevator for their own benefit.
28. E.g., Shoemaker v. United States, 147 U.S. 282 (1893) (establishment of public park in District of Columbia); Rindge Co. v. Los Angeles County, 262 U.S. 700 (1923) (scenic highway); Brown v. United States, 263 U.S. 78 (1923) (condemnation of property near town flooded by establishment of reservoir in order to locate a new townsite, even though there might be some surplus lots to be sold); United States v. Gettysburg Electric Ry., 160 U.S. 668 (1896), and Roe v. Kansas ex rel. Smith, 278 U.S. 191 (1929) (historic sites). When time is deemed to be of the essence, Congress takes land directly by statute, authorizing procedures by which owners of appropriated land may obtain just compensation. See, e.g., Pub. L. No. 90-545, § 3, 82 Stat. 931 (1968), 16 U.S.C. § 79(c) (taking land for creation of Redwood National Park); Pub. L. No. 93-444, 88 Stat. 1304 (1974) (taking lands for addition to Piscataway Park, Maryland); Pub. L. No. 100-647, § 10002 (1988) (taking lands for addition to Manassas National Battlefield Park).
29. 348 U.S. 26, 32–33 (1954) (citations omitted). Rejecting the argument that the project was illegal because it involved the turning over of condemned property to private associations for redevelopment, the Court said: Once the object is within the authority of Congress, the means by which it will be attained is also for Congress to determine. Here one of the means chosen is the use of private enterprise for redevelopment of the area. Appellants argue that this makes the project a taking from one businessman for the benefit of another businessman. But the means of executing the project are for Congress and Congress alone to determine, once the public purpose has been established. The public end may be as well or better served through an agency of private enterprise than through a department of government—or so the Congress might conclude. Id. at 33–34 (citations omitted).
30. Most recently, the Court equated public use with public purpose. Kelo v. City of New London, 545 U.S. 469, 480 (2005).
31. 467 U.S. 229, 243 (1984).
32. 467 U.S. at 243.
33. 467 U.S. at 240. See also Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1014 (1984) (required data disclosure by pesticide registrants, primarily for benefit of later registrants, has a conceivable public character).
34. 545 U.S. 469 (2005).
35. 545 U.S. at 487.
36. Written by Justice O’Connor, and joined by Justices Scalia and Thomas, and Chief Justice Rehnquist.
37. 545 U.S. at 501.
40. Bauman v. Ross, 167 U.S. 548 (1897); Sharp v. United States, 191 U.S. 341, 351–52, 354 (1903). Where the taking of a strip of land across a farm closed a private right-of-way, an allowance was properly made for the value of the easement. United States v. Welch, 217 U.S. 333 (1910).
44. See Horne v. Dep't of Agric., 135 S. Ct. 2419, 2426 (2015). In deciding this case, the Court presumably intended to leave intact established exceptions when the government seizes personal property (e.g., confiscation of adulterated drugs). See, e.g., Bennis v. Michigan, 516 U.S. 442, 452 (1996) (Petitioner also claims that the forfeiture, in this case, was a taking of private property for public use in violation of the Takings Clause of the Fifth Amendment, made applicable to the States by the Fourteenth Amendment. But if the forfeiture proceeding here in question did not violate the Fourteenth Amendment, the property in the automobile was transferred by virtue of that proceeding from petitioner to the State. The government may not be required to compensate an owner for property which it has already lawfully acquired under the exercise of governmental authority other than the power of eminent domain.).
45. Horne, 135 S. Ct. 2419, 2422 (2015).
46. Id. at 2428–30.
47. The government’s argument might have carried more weight had the marketing order been viewed as a regulatory taking. Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302, 321–22 (2002) (The text of the Fifth Amendment itself provides a basis for drawing a distinction between physical takings and regulatory takings. Its plain language requires the payment of compensation whenever the government acquires private property for a public purpose, whether the acquisition is the result of a condemnation proceeding or a physical appropriation. But the Constitution contains no comparable reference to regulations that prohibit a property owner from making certain uses of her private property.); Bowles v. Willingham, 321 U.S. 503, 519 (1944) (rent control cannot be a taking of premises if [t]here is no requirement that the apartments be used for purposes which bring them under the [rent control] Act).
48. Horne, 135 S. Ct. at 2430–31. Here, the Court expressly rejected the argument that the raisin growers could avoid the physical taking of their property by growing different crops, or making different uses of their grapes, by quoting its earlier decision in Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 439 n.17 (1982) ([A] landlord’s ability to rent his property may not be conditioned on his forfeiting the right to compensation for a physical occupation.). The Court also distinguished the raisin reserve provisions from the requirement that companies manufacturing pesticides, fungicides, and rodenticides disclose trade secrets in order to sell those products at issue in Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984). It did so because the manufacturers in Ruckelshaus were seen to have taken part in a voluntary exchange of information that included their trade secrets, recognized as property under the Takings Clause, in exchange for a valuable Government benefit in the form of a license to sell dangerous chemicals. No such government benefit was seen to be involved with the raisin growers because they were making basic and familiar uses of their property.
49. Horne, 135 S. Ct. at 2431–32.
59. Congress is not, by virtue of having instituted a social welfare program, bound to continue it at all, much less at the same benefit level. Bowen v. Gilliard, 483 U.S. 587, 604 (1987).
60. The Court has not yet determined whether the actions of a court may give rise to a taking. In Stop the Beach Renourishment, Inc. v. Florida Dept. of Environmental Protection, Justice Scalia, joined by three other Justices, recognized that a court could effect a taking through a decision that contravened established property law. 560 U.S. 702 (2010). Justice Kennedy and Justice Breyer, each joined by one other Justice, wrote concurring opinions finding that the case at hand did not require the Court to determine whether, or when, a judicial decision on the rights of a property owner can violate the Takings Clause. Though all eight participating Justices agreed on the result in Stop the Beach Renourishment, Inc, the viability and dimensions of a judicial takings doctrine thus remains unresolved.
61. Legal Tender Cases, 79 U.S. (12 Wall.) 457, 551 (1870). The Fifth Amendment has never been supposed to have any bearing upon, or to inhibit laws that indirectly work harm and loss to individuals, the Court explained.
63. Sauer v. City of New York, 206 U.S. 536 (1907). But see the litigation in the state courts cited by Justice Cardozo in Roberts v. City of New York, 295 U.S. 264, 278–82 (1935).
66. Pumpelly v. Green Bay Co., 80 U.S. (13 Wall.) 166, 177–78 (1872). Recurrent, temporary floodings are not categorically exempt from Takings Clause liability. Ark. Game & Fishing Comm’n v. United States, 568 U.S. 23 (2012) (downstream timber damage caused by changes in seasonal water release rates from government dam).
68. Portsmouth Harbor Land & Hotel Co. v. United States, 260 U.S. 327 (1922). Cf. Portsmouth Harbor Land & Hotel Co. v. United States, 250 U.S. 1 (1919); Peabody v. United States, 231 U.S. 530 (1913).
69. United States v. Causby, 328 U.S. 256 (1946); Griggs v. Allegheny County, 369 U.S. 84 (1962). A corporation chartered by Congress to construct a tunnel and operate railway trains therein was held liable for damages in a suit by one whose property was so injured by smoke and gas forced from the tunnel as to amount to a taking. Richards v. Washington Terminal Co., 233 U.S. 546 (1914).
70. The phrase ‘inverse condemnation’ generally describes a cause of action against a government defendant in which a landowner may recover just compensation for a ‘taking’ of his property under the Fifth Amendment, even though formal condemnation proceedings in exercise of the sovereign’s power of eminent domain have not been instituted by the government entity. San Diego Gas & Electric Co. v. City of San Diego, 450 U.S. 621, 638 n.2 (1981) (Justice Brennan dissenting). See also United States v. Clarke, 445 U.S. 253, 257 (1980); Agins v. City of Tiburon, 447 U.S. 255, 258 n.2 (1980).
71. Gibson v. United States, 166 U.S. 269 (1897); Lewis Blue Point Oyster Co. v. Briggs, 229 U.S. 82 (1913); United States v. Chandler-Dunbar Water Power Co., 229 U.S. 53 (1913); United States v. Appalachian Power Co., 311 U.S. 377 (1940); United States v. Commodore Park, Inc., 324 U.S. 386 (1945); United States v. Willow River Power Co., 324 U.S. 499 (1945); United States v. Twin City Power Co., 350 U.S. 222 (1956); United States v. Rands, 389 U.S. 121 (1967).
73. United States v. Lynah, 188 U.S. 445 (1903); United States v. Cress, 243 U.S. 316 (1917); Jacobs v. United States, 290 U.S. 13 (1933); United States v. Dickinson, 331 U.S. 745 (1947); United States v. Kansas City Ins. Co., 339 U.S. 799 (1950); United States v. Virginia Electric & Power Co., 365 U.S. 624 (1961).