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Amdt5.5.1.2.3 Physical Takings

Fifth Amendment:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The issue 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 property because of government action, or where regulatory action limits activity on the property or otherwise deprives it of value,1 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.2 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;3 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.4 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,5 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.6

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.7 A later formulation was that [p]roperty 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.8 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.9 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.10 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.11

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 a nonnavigable 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.12 This exception does not apply to lands above the ordinary high-water mark of a stream,13 hence is inapplicable to the damage the government may do to such fast lands by causing overflows, by erosion, and otherwise, consequent on erection of dams or other improvements.14 And, when previously nonnavigable 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.15

Footnotes

  1.  Jump to essay-1The 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.
  2.  Jump to essay-2Legal Tender Cases, 79 U.S. (12 Wall.) 457, 551 (1871). 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.
  3.  Jump to essay-3Meyer v. City of Richmond, 172 U.S. 82 (1898).
  4.  Jump to essay-4Sauer 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).
  5.  Jump to essay-5Chicago, B. & Q. R.R. v. City of Chicago, 166 U.S. 226 (1897).
  6.  Jump to essay-6Manigault v. Springs, 199 U.S. 473 (1905).
  7.  Jump to essay-7Pumpelly 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).
  8.  Jump to essay-8United States v. Dickinson, 331 U.S. 745, 748 (1947).
  9.  Jump to essay-9Portsmouth 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).
  10.  Jump to essay-10United 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).
  11.  Jump to essay-11The 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).
  12.  Jump to essay-12Gibson 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).
  13.  Jump to essay-13United States v. Virginia Elec. & Power Co., 365 U.S. 624, 628 (1961).
  14.  Jump to essay-14United 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).
  15.  Jump to essay-15Kaiser Aetna v. United States, 444 U.S. 164 (1979); Vaughn v. Vermillion Corp., 444 U.S. 206 (1979).
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