Amdt5.9.4 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.

When government institutes condemnation proceedings directed to property, or mistakenly grants privately held property rights to third parties,1 it “takes” such property and the Fifth Amendment requires just compensation. In contrast, where government action causes physical damage to property, limits activity on property, or otherwise deprives property of value,2 determining whether such actions constitute “takings” in the Fifth Amendment sense is more complex.

In early cases, the Supreme Court considered the Fifth Amendment requirement that the government pay just compensation for property taken for public use to refer only to “direct appropriation, and not to consequential injuries resulting from the exercise of lawful power.” 3 Accordingly, the Supreme Court has held a variety of consequential injuries not to constitute takings, including: damage to abutting property resulting from the authorization of a railroad to erect tracts, sheds, and fences over a street;4 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;5 the forced sale of cattle due to loss of grazing land due to government flooding,6 and a federal irrigation project that resulting in raised groundwater and lake water impacting nearby properties.7 Nor did the Court hold the government liable for extra expenses property owners incurred addressing the consequences of governmental actions, such as expenses incurred by a railroad in planking an area condemned for a crossing, constructing gates, and posting gatemen,8 or by a landowner in raising the height of dikes around his land to prevent their partial flooding consequent to private construction of a dam under public licensing.9

The Court has decided that the government can “take” land by physical invasion or occupation when it floods land permanently or recurrently, thereby triggering the just compensation requirement.10 In its 1947 decision United States v. Dickinson, the Court stated 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.” 11 The Court thus held in Portsmouth Harbor Land & Hotel Co. v. United States that the government had imposed a servitude for which it must compensate the owner on land adjoining its fort when it repeatedly fired guns at the fort across the land and established a fire control service there.12 In two cases—United States v. Causby and Griggs v. Allegheny County—the Court held that lessees or operators of airports were required to compensate owners of adjacent land when the noise, glare, and fear of injury occasioned by low altitude overflights during takeoffs and landings made the land unfit for the use to which the owners had applied it.13 The Court has also held in Cedar Point Nursery v. Hassid that a law requiring employers to allow union organizers to enter a business property effectuated a physical taking, and thus was unconstitutional in the absence of just compensation.14 The term “inverse condemnation” is often used to refer to cases where the government has not instituted formal condemnation proceedings, but the property owner has instead sued for just compensation, claiming that governmental action or regulation has “taken” his property.15

The Fifth Amendment generally does not prohibit the government from collecting administrative and other fees incidental to conducting government business. For example, in United States v. Sperry Corp., the Court held that a 1% user fee deducted from awards granted by an international tribunal to cover the costs of administering that tribunal did not constitute a taking, but simply a “user fee.” 16 The Court further noted that “[t]he amount of a user fee need not be precisely calibrated to the use that a party makes of governmental services.” 17 The Court, however, has found other government fees to be excessive enough to constitute a taking for which there must be just compensation.18

The Court’s repeated holdings that riparian ownership is subject to Congress’s power to regulate commerce is an important reservation to the law of liability in the taking area. When government improvements to a river’s navigable capacity or to a nonnavigable river designed to affect navigability elsewhere cause damage, the Court has generally not considered such damage to be a taking of property but merely an exercise of a servitude to which the property is always subject.19 This exception does not apply to lands above the ordinary high-water mark of a stream;20 hence, it 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.21 Furthermore, when previously nonnavigable waters are made navigable by private investment, government may not assert a navigation servitude and direct the property owners to afford public access without paying just compensation.22

United States v. Creek Nation, 295 U.S. 103 (1935). back
There is continuing uncertainty regarding whether the actions of a court may constitute a taking. In Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, Justice Antonin 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 Anthony Kennedy and Justice Stephen 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 remains unresolved. back
The Legal 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. back
Meyer v. City of Richmond, 172 U.S. 82 (1898). back
Sauer v. City of N.Y., 206 U.S. 536 (1907). back
Bothwell v. United States, 254 U.S. 231 (1920). back
John Horstmann Co. v. United States, 257 U.S. 138 (1921). back
Chi., B. & Q. R.R. v. City of Chi., 166 U.S. 226 (1897). back
Manigault v. Springs, 199 U.S. 473 (1905). back
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 & Fish Comm’n v. United States, 568 U.S. 23 (2012) (downstream timber damage caused by changes in seasonal water release rates from government dam). However, the Court has found damages due to flooding caused by government efforts to prevent erosion not to constitute a taking. Bedford v. United States, 192 U.S. 217 (1904). The Court has also held that flooding resulting from the construction of a canal was not a taking unless the overflow was a “direct result of the structure” and constituted an “actual, permanent invasion of the land, amounting to an appropriation of and not merely an injury to the property.” Sanguinetti v. United States, 246 U.S. 146, 149 (1924). The Court in Arkansas Game & Fish addressed the seeming inconsistency of its decision with this language in the Sanguinetti decision, noting that to the extent the Court “indeed meant to express a general limitation on the Takings Clause, that limitation has been superseded by subsequent developments in our jurisprudence.” Ark. Game & Fish, 568 U.S. at 34. back
United States v. Dickinson, 331 U.S. 745, 748 (1947) back
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). back
United States v. Causby, 328 U.S. 256 (1946); Griggs v. Allegheny Cnty., 369 U.S. 84 (1962). The Court held a corporation chartered by Congress to construct a tunnel and operate railway trains liable for damages when the plaintiff’s property was so injured by smoke and gas forced from the tunnel as to amount to a taking. Richards v. Wash. Terminal Co., 233 U.S. 546 (1914). back
Cedar Point Nursery v. Hassid, No. 20-107 (U.S. June 23, 2021). back
Discussing the term “inverse condemnation,” the Supreme Court has noted: “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 & Elec. Co. v. City of San Diego, 450 U.S. 621, 638 n.2 (1981) (Brennan, J., 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). back
United States v. Sperry Corp., 493 U.S. 52 (1989). back
Id. at 60–62. See also Cal. Reduction Co. v. Sanitary Reduction Works, 199 U.S. 306 (1905) (disposal fee and designated disposal site imposed on waste generator did not constitute a taking). back
See, e.g., Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 160–65 (1980) (interest earned on interpleader fund deposited in the registry of a county court was the property of the parties just like the principal, and the government could not retain it as an administrative fee for managing the fund); Norwood v. Baker, 172 U.S. 269 (1898) (special assessment on certain property owners to pay for road construction are justified if those owners receive special benefits, but assessment exceeding value of benefit amounts to a taking). back
Gibson v. United States, 166 U.S. 269 (1897); Scranton v. Wheeler, 179 U.S. 141 (1900); Union Bridge Co. v. United States, 204 U.S. 364 (1907); 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); Greenleaf-Johnson Lumber Co. v. Garrison, 237 U.S. 251 (1915); 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). back
United States v. Va. Elec. & Power Co., 365 U.S. 624, 628 (1961). back
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. Kan. City Life Ins. Co., 339 U.S. 799 (1950); Va. Elec. & Power Co., 365 U.S. 624. back
Kaiser Aetna v. United States, 444 U.S. 164 (1979); Vaughn v. Vermillion Corp., 444 U.S. 206 (1979) back