Takings Decisions of the U.S. Supreme Court: A Chronology

CRS Report for Congress
Takings Decisions of the
U.S. Supreme Court:
A Chronology
Updated October 19, 2005
Robert Meltz
Legislative Attorney
American Law Division

Congressional Research Service ˜ The Library of Congress

Takings Decisions of the U.S. Supreme Court:
A Chronology
This report is a reverse chronological listing of U.S. Supreme Court decisions
addressing claims that a government entity has “taken” private property, as that term
is used in the Takings Clause of the Fifth Amendment. A scattering of related, non-
takings decisions is also included.
Under the Takings Clause, courts allow two very distinct types of suit.
Condemnation occurs when a government or private entity formally invokes its
power of eminent domain by filing suit to take a specified property, upon payment to
the owner of just compensation. By contrast, a taking action — our topic here —
is the procedural reverse. It is a suit by a property holder against the government,
claiming that government conduct has effectively taken the property notwithstanding
that the government has not filed a formal condemnation suit. A typical taking action
complains of severe regulation of land use, though the Takings Clause reaches all
species of property: real and personal, tangible and intangible. The taking action
generally demands that the government compensate the property owner, just as when
government formally exercises eminent domain.
The Supreme Court’s takings decisions reach as far back as 1870, and are divided
here into three periods. The modern period, from 1978 to the present, is defined by
the Court’s effort to make its indicia for regulatory takings more explicit, with uneven
success, and to develop ripeness standards. In the preceding period, 1922 to 1978, the
Court first announced the regulatory taking concept — that government regulation
alone, without appropriation or physical invasion of property, may be a taking if
sufficiently severe. During this time, however, it proffered little by way of regulatory
takings criteria. In the earliest period of takings law, 1870 to 1922, the Court saw the
Takings Clause as protecting property owners only from two particularly intrusive
forms of government action: outright appropriation and physical invasion. Regulatory
restrictions were tested against other legal theories and generally upheld.

I. Takings Law Today: Penn Central (1978) to the Present.................3
II. The Dawn of Regulatory Takings Law:
Pennsylvania Coal Co. (1922) to 1978............................11
III. Appropriations and Physical Takings Only: 1870 to 1922..............16

Takings Decisions of the U.S. Supreme
Court: A Chronology
Once in the constitutional wings, the Takings Clause of the Fifth Amendment
today stands center stage. No debate on the proper balance between private property
rights and conflicting societal needs is complete without it.
The reasons for the Takings Clause’s ascendancy are clear. Starting with the
advent of comprehensive zoning in the early twentieth century, federal, state, and local
regulation of private land use has become pervasive. Beyond comprehensive zoning,
recent decades have seen explosive growth in the use of historic preservation
restrictions, open-space zoning, dedication and exaction conditions on building
permits, nature preserves, wildlife habitat preservation, wetlands and coastal zone
controls, and so on. In the Supreme Court, the appointment of several conservative
justices since the 1970s has prompted a new scrutiny of government conduct vis-a-vis
the private property owner.
As a result, the Court since the late Seventies has turned its attention toward the
takings issue with vigor, clarifying some issues and raising new ones. Through the
1980s and 1990s, property owner plaintiffs scored several major victories; by and
large, the substantive doctrine of takings shifted to the right. Recent decisions,
however, have moved the analytical framework in a more government-friendly
direction, though it is too soon to discern whether this signals a lasting shift.
By way of background, the Fifth Amendment of the U.S. Constitution states:
“nor shall private property be taken for public use, without just compensation.” Until
the late nineteenth century, this clause was invoked only for condemnation: the
formal exercise by government of its eminent-domain power to take property
coercively, upon payment of just compensation. In such condemnation suits, there is
no issue as to whether the property is “taken” in the Fifth Amendment sense; the
government concedes as much by filing the action. The only question, typically, is
how much compensation must be paid.
Beginning in the late nineteenth century, the Supreme Court gave its imprimatur
to a very different use of the Takings Clause. When the sovereign appropriated or
caused a physical invasion of property, as when a government dam flooded private
land, the Court found that the property had been taken just as surely as if the sovereign
had formally condemned. Therefore, it said, the property owner should be allowed to
vindicate his constitutional right to compensation in a suit against the government.
In contrast with condemnation actions, then, such takings actions have the property
owner suing government rather than vice-versa, hence the synonym “inverse
condemnation actions.” The key issue in takings actions is usually whether, given
all the circumstances, the impact of the government action on a particular property
amounts to a taking in the constitutional sense.

In 1922, in the most historically important taking decision,1 the Supreme Court
extended the availability of takings actions from government appropriations and
physical invasions of property to the mere regulation of property use. This critical
extension opened up vast new legal possibilities for property owners, and underlies
most of the Supreme Court’s takings decisions since 1922.
* * * * *
This report compiles only Supreme Court decisions addressing issues unique to
takings (inverse condemnation) actions, not those on formal condemnation or
property valuation. Thus the recent headline-grabbing Supreme Court opinion in Kelo
v. City of New London,2 principally a formal condemnation case, is not included here.
On the other hand, a scattering of due process cases is interspersed where they address
property-use restrictions or have been cited by the Court as authority in its takings
In the interest of brevity, we mention no dissenting opinions, and almost no
concurrences. Thus, the report does not reveal the closely divided nature of some
Supreme Court takings opinions.
Decisions are in reverse chronological order.

1 Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922).
2 125 S. Ct. 2655 (2005).

I. Takings Law Today:
Penn Central (1978) to the Present
In 1978, the Supreme Court ushered in the modern era of regulatory takings law
by attempting to inject some coherence into the ad hoc analyses that had characterized
its decisions before then. In Penn Central Transportation Co. v. New York City, the
Court declared that whether a regulatory taking has occurred in a given case is
influenced by three principal factors: the economic impact of the regulation, the extent
to which it interferes with distinct (in most later decisions, “reasonable”) investment-
backed expectations, and the “character” of the government action. After Penn
Central, ad hocery in judicial taking determinations emphatically still remains, but
arguably is confined within tighter bounds.
The Court’s many takings decisions since Penn Central have developed the
jurisprudence in each of its main areas: ripeness, takings criteria, and remedy. As for
takings criteria, the Court announced several “per se taking” rules in the two decades
after Penn Central (see, e.g., Loretto and Lucas), though more recently it has again
been extolling the multifactor, case-by-case approach of that decision (see Palazzolo,
Tahoe-Sierra, and Lingle). In Lingle, one of its newest takings decisions, the Court
summed up the four types of takings claims it now recognizes:
a plaintiff seeking to challenge a government regulation as an
uncompensated taking of private property may ... alleg[e] a
“physical” taking, a Lucas-type “total regulatory taking,” a Penn
Central taking, or a land-use exaction violating the standards set
forth in Nollan and Dolan.
CaseAction attackedHolding/rationale
San Remo Hotel,City requirement that hotelierFederal full faith and credit statute (barring relitigation of issues that
L.P. v. City andpay $567,000 fee forhave been resolved by state courts of competent jurisdiction) admits of
County of Sanconverting residential roomsno exception allowing relitigation in federal court of takings claims
Francisco, 125 S.to tourist rooms, underinitially litigated in state court pursuant to "state exhaustion" ripeness
Ct. 2491 (2005)ordinance seeking to preserveprerequisite of Williamson County, infra page 8. Court rejects
supply of affordable rentalargument that whenever claimant reserves his federal taking claim in
housingstate court, federal courts should review the reserved federal claim de
novo, regardless of what issues the state court decided.
Lingle v. ChevronState statute limiting rent thatNo taking. Rule announced in Agins, infra page 9, that government
U.S.A. Inc., 125 S.oil companies may chargeregulation of private property is a taking if it “does not substantially
Ct. 2074 (2005) service station operators whoadvance legitimate state interests,” is not a valid takings test. Takings
lease stations owned by oillaw looks at the burdens a regulation imposes on property. Thus, the
companies, in order to holdphysical taking, total taking, and Penn Central tests (infra page 10)
down retail gasoline priceseach aims to identify government actions that are “functionally
equivalent” to a direct appropriation. In contrast, thesubstantially
advancestest focuses on the regulations effectiveness, a due-process-
like inquiry. Moreover, assessing the efficacy of regulations is a task
to which courts are ill-suited.

CaseAction attackedHolding/rationale
Brown v. LegalState’s use of interest earnedIOLTA program satisfies public use” requirement of Takings Clause,
Found. ofby small or short-livedgiven the compelling interest in providing legal services for the poor.
Washington, 538deposits of title companysAs to whether there was a taking, a per se test like that in Loretto, infra
U.S. 216 (2003)clients funds to support legalpage 8, seems appropriate, and we assume such a taking occurred. But
services for the poor — underthere is still no constitutional violation. The Takings Clause proscribes
Interest on Lawyers Trusttakings without compensation. IOLTA mandates use of the interest
Accounts (IOLTA) programonly when it could generate no net interest for the client, owing to
administrative costs. Thus, the compensation owed is zero.
Verizon Commu-FCC regulations underArgument that historical costs should be used to avoid the possibility
nications, Inc. v.Telecommunications Act ofof takings does not present a serious question. Incumbents do not
FCC, 535 U.S. 4671996 providing that ratesargue that any particular rate is so unjust as to be confiscatory, but
(2002)charged by incumbent localgeneral rule is that any question about the constitutionality of
exchange carriers to newratesetting is raised by rates, not ratesetting methods. Nor is FCC’s
competitors are to be basedaction placed outside this rule by any clear signs that takings will occur
on forward-looking costif the historical-costs interpretation is allowed.
methodology, rather than
historical costs
Tahoe-SierraBuilding moratoria imposed1981-1984 moratoria are not per se takings. The argument that a
Preservation1981-1984 until bistatemoratorium prohibiting all economic use of a property, no matter how
Council, Inc. v.agency could formulate newbriefly, is a per se taking must be rejected. Rather, such moratoria are
Tahoe Regionalregional land-use plan plusto be analyzed under the ad hoc balancing test of Penn Central, infra
Planning Agency,freeze on building permitspage10. Neither First English, infra page 7, nor Lucas, infra page 6,
535 U.S. 302from 1984 to 1987 undersupport the per se taking argument. And the parcel as a whole” rule
(2002)court injunction against 1984bars segmentation of a parcels temporal dimension, precluding
plan, plus restrictions underconsideration of only the moratorium period. Finally, “fairness and
1987 plan justice” and the need for informed land-use planning support an ad hoc
approach here. (Post-1984 restrictions not addressed.)
Palazzolo v. RhodeState denials rejectingTaking claim is ripe. Given state’s interpretation of its regulations,
Island, 533 U.S.developer’s proposals to fillthere was no ambiguity as to extent of development (none) allowed on
606 (2001)in all or most of principallywetlands portion of lot. Similarly, value of uplands portion, where a
wetland lot adjacent to coastalsingle home may be built, was also settled. Hence, lot owner need not
pondmake further applications to satisfy “final decision” requirement of
ripeness doctrine. On the merits, a taking claim is not barred by fact
that property was acquired after effective date of state regulation. And,
a regulation permitting a landowner to build a substantial house on a
20-acre parcel is not a total taking under Lucas, infra page 6, but must
instead be evaluated under the Penn Central test, infra page 10.
City of MontereyCitys failure to approveIssue of whether city was liable for taking, raised through civil rights
v. Del Monteproperty owner’sclaim under 42 U.S.C. § 1983, was in this case an essentially fact-
Dunes atdevelopment plans after five,bound one, and thus properly submitted by district court to jury. Suit
Monterey, Ltd.,progressively scaled-backfor legal relief under section 1983 is action at law sounding in tort, and
526 U.S. 687proposals accommodatingis thus within jury guarantee in Seventh Amendment. Also “rough
(1999) citys progressively lowerproportionality” standard of Dolan, infra page 5, is not appropriate
development caps takings test. It was designed to address exactions on development
permits, not, as here, denials of development.

CaseAction attackedHolding/rationale
Eastern Enter-Federal statute requiringCoal Industry Retiree Health Benefit of 1992 is unconstitutional as
prises v. Apfel,company to fund healthapplied to Eastern. In opinion accompanying judgment, four justices
524 U.S. 498benefits of miner who workedfind taking because statute imposes severe retroactive liability on a
(1998)for it decades earlier, wherelimited class of parties that could not have anticipated the liability, and
company left mining businessthe extent of liability is substantially disproportionate to the companys
before promise of lifetimeexperience in mining field. This points to a taking under Penn Central
benefits in collectivetest, infra page 10. Also, remedy for taking based on generalized
bargaining agreementsmonetary liability is invalidation rather than compensation, supporting
became explicit in 1974jurisdiction in district court.
Remaining justice supporting judgment sees instead a substantive
due process violation.
Phillips v.State’s use of interest earnedInterest is property of clients, not state. Despite fact that interest would
Washington Legalon small or short-livednot exist but for IOLTA program, state’s rule that “interest follows
Foundation, 524deposits of lawyers’ clients’principal” must be followed. Nor can interest be regarded as mere
U.S. 156 (1998) funds to support legal servicesgovernment-created value. Remanded for decision on whether taking
for the poor under Interestoccurred.
on Lawyers Trust Accounts
(IOLTA) program
Suitum v. TahoeAgency’s ban on new landTaking claim is ripe despite plaintiff’s not having applied for TRPA
Regional Planningcoverage in “Stream Envi-approval of her sale of transferrable development rights (TDRs).
Agency, 520 U.S.ronment Zones, under whichFinal decision” requirement of Williamson County, infra page 8, does
725 (1997)plaintiff was barred fromnot embrace such TRPA approval, since parties agree on TDRs to
building home on residentialwhich plaintiff is entitled and no discretion remains for TRPA. TDRs’
lot value here is simply an issue of fact, which courts routinely resolve
without benefit of a market transaction.
Babbitt v. Youpee,Federal statute’s ban onTaking occurred. The amendment, made in 1984, did not cure taking
519 U.S. 234descent or devise of smallthat Hodel v. Irving, infra page 7, found in pre-amendment version of
(1997)interests in allotted Indianstatute. Amendment narrowed ban only as regards income-producing
land as ban was narrowedability of the land, not its value. More important, amendment’s
by amendmentallowance of devise to current owners in same parcel still offends
Hodel by continuing to “severely restrict[]” Indians right to direct
descent of his property.
Bennis v.Forfeiture of car, ownedNo taking (of wifes joint interest in car). To be sure, wife had no prior
Michigan, 516jointly by plaintiff and herknowledge of husband’s planned use of car. But government may not
U.S. 442 (1996)husband, because ofbe required to compensate an owner for property which it has already
husbands illegal sexuallawfully acquired under authority other than eminent domain. Then,
activity in cartoo, the cases authorizing forfeiture are “too firmly fixed to be now
disp laced.
Dolan v. City ofConditions imposed by cityTaking occurred. While greenway dedication condition rationally
Tigard, 512 U.S.for granting building permit,advanced a purpose of permit scheme (flood prevention), requiring
374 (1994)requiring applicant tolandowner to allow public access to greenway did not. Hence, latter
dedicate public greenwayviolatednature of the permit condition taking criterion in Nollan,
along stream and adjacentinfra page 6. Other condition, that pathway be dedicated, was not
bike/pedestrian pathwayshown by city to impose burden on applicant that was roughly
proportional to impact of applicants proposed project on community.
Hence, it violates the “degree of burden” taking criterion that Court
announces here. Also, burden of proof is on government to
demonstrate “rough proportionality.”

CaseAction attackedHolding/rationale
Concrete Pipe &Federal statute requiring thatNo taking. Taking claim is not aided by fact that collective bargaining
Products, Inc. v.employer who withdrawsagreement predating statute protected employer from liability to plan
Constructionfrom multi-employer pensionbeyond specified contributions. Three-factor Penn Central test, infra
Laborers Pensionplan pay a fixed debt to planpage 10, does not point to taking: (1) government action merely
Trust, 508 U.S.adjusted benefits and burdens of economic life; (2) withdrawal liability
602 (1993)was not disproportionate; and (3) given longstanding federal regulation
in pension field, employer lacked reasonable expectation it would not
be faced with liability for promised benefits.
Lucas v. SouthDevelopment ban imposed onGovernment regulation of land that completely eliminates economic
Carolina Coastalvacant lots under state’suse is a per se taking, even when the legislature asserts a prevention-of-
Council, 505 U.S.beachfront managementharm purpose. There is a prior inquiry, however, as to whether
1003 (1992)statuteproposed use is inherent in landowner’s title under “background
principles of the state’s law of property and nuisance” existing when
land was acquired. If not, there is no taking, since regulation does not
take anything owner ever had.
Yee v. City ofMobile home rent-controlNo physical taking occurred. Neither state nor local law on its face
Escondido, 503ordinance, combined withrequires landowner to dedicate his land to mobile home rentals, nor
U.S. 519 (1992)state law forcing mobile homeoverly limits his ability to terminate such use. Per se rule in Loretto,
park owner to acceptinfra page 8, applies only when permanent physical occupation is
purchasers of mobile homescoerced. Claim that procedure for changing use of park is overly
in park as new tenantsburdensome is not ripe, since plaintiff has not gone through procedure.
Regulatory taking claim is not properly before Court, since not
subsumed by questions in petition for certiorari.
Preseault v. ICC,Federalrails-to-trails”Premature for Court to evaluate taking challenge to statute, because
494 U.S. 1 (1990)statute, under which unusedeven if it causes takings of reversionary interests, compensation is
railroad rights of way areavailable under Tucker Act (authorizing suits against U.S. for
converted to recreationalcompensation). Nothing in statute suggests the “unambiguous
trails notwithstandingintention to withdraw Tucker Act remedy which this Court requires.
reversionary propertyFor example, Congress expressed desire that program operate atlow
interests under state lawcost might merely reflect its rejection of a more ambitious federal
program, rather than withdrawal of Tucker Act remedy.
United States v.Statutory 1-1/2% deductionNo taking. 1-1/2% deduction is a reasonable “user fee” intended to
Sperry Corp., 493from awards of Iran-Unitedreimburse United States for its costs in connection with tribunal.
U.S. 52 (1989)States Claims Tribunal asAmount of fee need not be precisely tailored to use that party makes of
reimbursement to Unitedgovernment services. Fee here is not so great as to belie its claimed
States for expenses incurredstatus as a user fee.
in the arbitration
Duquesne LightState agency’s refusal toNo taking. Under the circumstances, overall impact of preventing
Co. v. Barasch,allow inclusion of cost ofamortization of such costs was small, and not shown to be unjust or
488 U.S. 299canceled nuclear plants inconfiscatory.
(1989)utilitys rate base
Pennell v. City ofRent control ordinanceNot ripe. There was no evidence that hardship provision had in fact
San Jose, 485 U.S.allowing rent increases ofever been relied upon to limit a rent increase. Also, ordinance did not
1 (1988)greater than set percentagerequire rent limit in event of tenant hardship, only that hardship be
only after consideringconsidered.
economic hardship caused to
t e na nt s
Nollan v.State’s grant of buildingTaking occurred. Permit condition (recording easement) did not
California Coastalpermit on condition propertysubstantially advance a government purpose that would justify denial
Commn, 483 U.S.owners record easementof permit (ensuring visual access to beach). Where such linkage exists,
825 (1987)allowing public to traversehowever, no taking occurs even if outright appropriation of the
beach on propertyproperty infringement (here, the easement) would be a taking.

CaseAction attackedHolding/rationale
Bowen v. Gilliard,Amendments to federalNo taking. Family has no property right to continued welfare benefits
483 U.S. 587welfare program resulting inat same level. Child receiving support payments suffers no substantial
(1987)lower benefits and assignmenteconomic impact, since payments were likely used for entire family
of child support payments tobefore amendments.
entire family
First EnglishInterim ordinance prohibitingIf a regulation is held to have taken property, Takings Clause requires
Evangelicalconstruction of any structurescompensation for the time during which regulation was in effect i.e.,
Lutheran Church v.in flood zoneuntil date of repeal or judicial invalidation. Mere invalidation of
County of Losregulation is not a constitutionality sufficient remedy. (Existence of
Angeles, 482 U.S.taking assumed by Court owing to posture of case.)
304 (1987)
Hodel v. Irving,Federal statute declaring thatTaking occurred. Statute amounts to complete abrogation, rather than
481 U.S. 704small interests in allottedregulation, of right to pass on property a right which, like the right
(1987)Indian land may not descendto exclude others, is basic to the concept of property.
by intestacy or devise, but
must escheat to tribe
KeystoneState regulation requiring thatNo taking. Unlike similar anti-subsidence law held a taking in
Bituminous Coalat least 50% of undergroundPennsylvania Coal Co., infra page 15, the statute here has a broad
Ass’n v.coal be left in place, wherepublic purpose and does not rule out profitable mine operation.
DeBenedictis, 480mining coal might cause
U.S. 470 (1987)subsidence damage to surface
structur es
FCC v. FloridaFederal regulation requiringNo taking. Per se rule in Loretto, infra page 8, applies only when
Power Corp., 480that utility greatly reduce rentpermanent physical occupation is coerced, unlike here where utility
U.S. 245 (1987)charged cable TV companyvoluntarily entered into contract with cable company. And new rent
for attaching its cables toordered by FCC was not confiscatory, hence not a taking.
utilitys poles
MacDonald,Countys rejection ofNot ripe. Developer must first obtainfinal and authoritative
Sommer & Fratesdevelopers first-submitteddetermination of the type and intensity of development that will be
v. Yolo County,subdivision platpermitted. Countys rejection of first-submitted plat does not preclude
477 U.S. 340possibility that submissions of scaled-down version of project might
(1986)not be approved. Also, a court cannot determine whether compensation
is “just until it knows what compensation state or local government
will provide.
Bowen v. PublicStatutory repeal of provisionNo taking. Repealed provision is not “property, since Congress
Agencies Opposedin federal-state agreementsreserved right to amend agreements in enacting governing statute, and
to Social Securityallowing states to end socialclause was not a debt or obligation of U.S.
Entrapment, 477security coverage of state and
U.S. 41 (1986)local employees
Connolly v.Federal act requiring thatNo taking. Taking does not occur every time law requires one person
Pension Benefitemployers who withdrawto use his assets for benefit of another. Nor can statute be defeated by
Guaranty Corp.,from a multi-employerpre-existing contract provision protecting employers from further
475 U.S. 211pension plan pay a fixed debtliability.
(1986)to the plan
United States v.Corps of Engineers’ assertionNot ripe. Mere assertion of regulatory jurisdiction by Corps is not
Riverside Bayviewof dredge and fill jurisdictiontaking; only when permit is denied so as to bar all beneficial use of
Homes, Inc., 474over certain freshwaterproperty is there a taking. Also, fact that broad construction of statute
U.S. 121 (1985)wetlandsmight yield more takings is not reason to construe statute narrowly,
since taking is unconstitutional only if no means to obtain
compensation exists. Such means does exist here, since Tucker Act
authorizes compensation for federal takings.

CaseAction attackedHolding/rationale
Williamson CountyCounty’s rejection ofNot ripe. Taking claim against state/local government in federal court
Regional Planningdeveloper’s subdivision platis not ripe unless (1) there is final and authoritative decision by
Commn v.government as to type and intensity of development allowed, and (2)
Hamilton Bank,avenues for obtaining compensation from state forums have been
473 U.S. 172exhausted. Here, developer failed to seek variances following initial
(1985)denial, thus has not received a final decision. Nor did developer use
an available state procedure for obtaining compensation. Absence of
exhaustion requirement in 42 U.S.C. § 1983 distinguished.
United States v.Federal statute voidingNo taking. Loss of claim could have been avoided with minimal
Locke, 471 U.S. 84unpatented mining claimsburden. No taking when property can continue to be held through
(1985)when claim holder fails toowners compliance with reasonable regulations. Texaco, Inc., v.
make timely annual filingsShort, infra page 8, found controlling.
Ruckelshaus v.Public disclosure and otherTaking occurred. Trade secrets are property, but only those submitted
Monsanto Co., 467use by EPA of industry-1972-78, when federal pesticide statute contained a confidentiality
U.S. 986 (1984)generated trade-secret dataguarantee, were taken. Before and after this period, there was no
submitted with application forinvestment-backed expectation of confidentiality, hence no taking.
pesticide registrationTucker Act remedy (right to seek money from U.S. in Court of
Federal Claims) was not withdrawn by pesticide act. Pesticide act
reveals no such intention, and withdrawal would amount to disfavored
repeal by implication of Tucker Act. Also, federal pesticide act sets up
exhaustion of agency remedies as precondition to any Tucker Act
Kirby ForestFiling of condemnation actionNo taking. Mere act of filing leaves landowner free, during pendency
Industries, Inc. v.by U.S. to acquire land forof condemnation action, to make any use of property or to sell it (but
United States, 467national parkloss in market value from such action is not compensable).
U.S. 1 (1984)
United States v.Retroactive use of bankruptcyStatute will not be applied retroactively to property rights established
Security Industrialstatute to avoid liens onbefore enactment date, in absence of clear congressional intent. There
Bank, 459 U.S. 70debtor’s property thatis substantial doubt whether retroactive destruction of liens comports
(1982)attached before statute waswith Takings Clause, and statutory reading raising constitutional issues
enactedshould be avoided where possible.
Loretto v.State statute requiringTaking occurred. Where as here government causes a “permanent
Teleprompterlandlords to allow installingphysical occupation of property, it is a per se taking — no matter how
Manhattan CATVof cable TV equipment onimportant the public interest served or how minimal the economic
Corp., 458 U.S.premises, for one-time pay-impact. In contrast, temporary physical invasions must submit to
419 (1982)ment of one dollarbalancing of factors.
Texaco, Inc. v.State statute extinguishingNo taking. It is the owners failure to use the mineral estate or timely
Short, 454 U.S.severed mineral estatesfile a statement, not the state’s imposition of reasonable conditions on
516 (1982)unused for long time unlessestate retention, that causes the property right to lapse.
owner filed statement within
prescribed period
Dames & Moore v.President’s nullification ofNo taking. Attachments were revocable and subordinate to President’s
Regan, 453 U.S.attachments on Iranian assetspower under International Emergency Economic Powers Act. Hence,
654 (1981)in U.S., during hostage crisisthere was no property in the attachments such as would support claim
for compensation. Also, possibility that suspension of claims against
Iranian assets may effect taking makes ripe the question whether there
is Tucker Act remedy here. We hold there is.
Hodel v. Indiana,Restrictions in federal statuteNo taking. Plaintiffs failed to allege that any specific property was
452 U.S. 314on surface mining of primetaken. Mere enactment of statute was no taking, since prime farmland
(1981)farmlandsprovisions do not on their face deny landowners all economic use of
such lande.g., do not restrict non-mining uses thereof.

CaseAction attackedHolding/rationale
Hodel v. VirginiaDemand in federal act thatNo taking. Plaintiffs failed to allege that any specific property was
Surface Mining &surface miners restore steeptaken. Mere enactment of statute was no taking, since challenged
Reclamationslopes to original contour, andprovisions do not on their face deny landowners all economic use of
Assn, 452 U.S.surface mining prohibitionsaffected land. In any event, taking claim is not ripe, since plaintiffs
264 (1981)thereinnever used avenues for administrative relief in act e.g., variance
from original-contour requirement.
San Diego Gas &Citys adoption of open-spaceNo final judgment by state court below as to whether a taking had
Electric Co. v. Sanplanoccurred, hence no Supreme Court jurisdiction under 28 U.S.C. § 1257.
Diego, 450 U.S.
621 (1980)
Webb’s FabulousCounty court declaring asTaking occurred. On facts presented, interest could not be viewed
Pharmacies, Inc.,public money the interest onsimply as fee to cover court costs. State may not take interest simply
v. Beckwith, 449interpleader fund depositedby calling a deposited fund “public money.
U.S. 155 (1980)by litigants with the court
United States v.1877 statute abrogating SiouxTaking occurred. In giving tribe rations until they became self-
Sioux Nation ofNations rights to Black Hills,sufficient, 1877 statute did not effect a mere change in the form of
Indians, 448 U.S.thus abrogating 1868 treatyinvestment of Indian tribal property (land to rations) by the federal
371 (1980)with tribetrustee. Rather, it effected a taking of tribal property set aside by the
1868 treaty. This taking implied an obligation bv the U.S. to make just
compensation to the Sioux.
Agins v. City ofMunicipal rezoning underNo facial taking; as-applied claim not ripe. Zoning law effects taking
Tiburon, 447 U.S.which property owner couldif it does not substantially advance legitimate state interests or denies
255 (1980)build between one and fiveowner economically viable use of his land. Thus, no facial taking here:
houses on his landenactment of ordinance is rationally related to legitimate public goal of
open-space preservation, ordinance benefits property owner as well as
public, and owner may still be able to build up to five houses on lot.
As-applied challenge is premature, since owner never submitted
development plan for approval under the new zoning.
Prune YardState constitutional mandateNo taking. Will not unreasonably impair value or use of property as a
Shopping Center v.that persons be allowed toshopping center, since facility is open to public at large. And owner
Robins, 447 U.S.engage in political expressionmay restrict time, place, and manner of expression.
74 (1980)in private shopping center
US v. Clarke, 445Municipalities’ entering intoFederal statute providing that allotted Indian lands may be
U.S. 253 (1980)physical possession of landcondemned” under state law does not allow cities to take land by
without bringingphysical possession in absence of formal condemnation proceeding.
condemnation actionTermcondemned” refers only to filing of condemnation by
government, not filing of “inverse condemnation” action by landowner.
Kaiser Aetna v.Federal order that owners ofTaking occurred. Infringement of marina owners right to exclude
United States, 444exclusive private marina,others, particularly where there’s investment-backed expectation of
U.S. 164 (1979)made navigable by privateprivacy, goes beyond permissible regulation. Navigation servitude
funds, grant access to boatingdoes not grant government absolute taking immunity.
Andrus v. Allard,Federal ban on sale of eagleNo taking. Denial of one traditional property right (selling) does not
444 U.S. 51 (1979)parts or artifacts madenecessarily amount to taking, even if it is most profitable use of
therefrom, as applied to stockproperty. Plaintiff retained right to possess, pass on, or exhibit for an
lawfully obtained before banadmission price, the affected inventory.

CaseAction attackedHolding/rationale
Penn CentralCitys use of historic preser-No taking. Generally, there are three factors ofparticular
Transp. Co. v.vation ordinance to blocksignificance” in a takings determination: (1) economic impact of
New York City,construction of office towerregulation on property owner; (2) extent to which regulation interferes
438 U.S. 104atop designated historicwith distinct investment-backed expectations; and (3) “character” of
(1978)landmarkgovernment action (meaning principally that regulation of use is less
likely to be taking than physical invasion). Here, landmark owner may
earn adequate return from building as is, and more modest additions to
building still might be approved. Citys offering of transferrable
development rights to building owner also weighs against a taking.
Finally, city cannot segment air rights over building from remainder of
property and claim that all use of air rights was taken.

II. The Dawn of Regulatory Takings Law:
Pennsylvania Coal Co. (1922) to 1978
The principle that government may "take" property in the Fifth Amendment sense
merely through regulatory restriction of property use — that is, without physical
invasion or formal appropriation of the property — was announced in 1922. In
Pennsylvania Coal Co. v. Mahon, the redoubtable Justice Oliver Wendell Holmes wrote
for the Supreme Court that a state law prohibiting coal mining that might cause surface
subsidence in certain areas was a taking of the mining company's mineral estate.
The first steps taken by this infant doctrine, however, were unsteady ones. Aside
from making clear that takings occur only with the most severe of property impacts, the
Court’s opinions during this period display little in the way of principled
decisionmaking. Moreover, the Court refused at times to part with its longstanding due-
process approach to testing property-use restrictions, vacillating between the two
CaseAction attackedHolding/rationale
Duke Power Co. v.Federal statute limitingWhere individuals seek declaratory judgment that statute (Price-
Carolinaamount recoverable byAnderson Act) is unconstitutional because it does not assure adequate
Environmentalinjured parties in the event ofcompensation in the event of a taking, rather than seeking
Study Group, 438a nuclear accidentcompensation, they may do so in district court under 28 U.S.C.
U.S. 59 (1978)§1331(a), and may do so before potentially uncompensable damages
are sustained. (Footnote 15) Also, it is unnecessary to reach taking
claim here, because statute does not withdraw the Tucker Act remedy
(right to seek compensation from U.S. in Court of Federal Claims).
(Footnote 39)
Regional RailFederal statute directingAvailability of Tucker Act remedy (right to seek compensation from
Reorganizationtransfer of bankrupt rail-U.S. in Court of Federal Claims) if rail act effects “erosion taking is
Act Cases, 419roads’ assets to federallyripe issue in view of distinct possibility that compelled rail operations
U.S. 102 (1974)created corporation andat a loss would erode railroads value beyond constitutional limits.
forcing continued operationSimilarly, issue of remedys availability if rail act effects “conveyance
of unprofitable linestaking is ripe, since act will lead inexorably to conveyance of assets.
On merits, Tucker Act remedy is available for both alleged takings
because rail act indicates no contrary intent; availability need not be
Calero-Toledo v.Puerto Rico’s seizure ofNo taking. Forfeiture is not rendered unconstitutional because it
Pearson Yachtyacht used for unlawfulapplies to property of innocents. The property itself is treated as the
Leasing Co., 416activity by lessee, but havingoffender, making owners conduct irrelevant. Also, owner voluntarily
U.S. 663 (1974)innocent lessorentrusted the yacht to the lessee, and there was no allegation that the
owner did all it could to avoid having property put to unlawful use.
Hurtado v. UnitedPre-trial detention of federalNo taking. There is public duty to provide evidence; fact that pre-trial
States, 410 U.S.criminal witnesses who aredetention is involved here, and that financial burden may be great, is
578 (1973)likely to flee and cannot postimmaterial. Takings Clause does not make U.S. pay for performance
bond; payment of only oneof duty it is already owed. Hence, issue of whether one dollar is
dollar per dayadequate compensation need not be reached.

CaseAction attackedHolding/rationale
YMCA v. UnitedOccupation of plaintiff’sNo taking. Where private party is intended beneficiary of government
States, 395 U.S.buildings in Canal Zone byactivity, resultant losses need not be compensated even though activity
85 (1969)U.S. troops seeking towas also intended incidentally to benefit public. Also, damage by
protect buildings fromrioters was not caused directly and substantially by government
Panamanian riotersoccupation.
Heart of AtlantaFederal statute banning racialNo taking.The cases are to the contrary [of the taking claim].”
Motel, Inc. v.discrimination in public
United States, 379accommodations
U.S. 241 (1964)
Dugan v. Rank,Threatened storage andIf plaintiffs have valid water rights that are partially taken, their
372 U.S. 609diversion of water atremedy is not an injunction stopping the reclamation project but a
(1963)federally operated Centraltaking suit against the U.S. under the Tucker Act. Damages are to be
Valley Project dammeasured by the difference in market value of the plaintiffslands
before and after the taking.
Goldblatt v.Ordinance barring excavationNo taking. Fact that ordinance deprives property of its most
Hempstead, 369below water tablebeneficial use, even an existing one, does not render it a taking. No
U.S. 590 (1962)evidence that ordinance will reduce value of lot, and ordinance is
valid police-power regulation.
Griggs v.Low and frequent flightsTaking occurred of an air easement, per rule of United States v.
Allegheny County,over home near county-Causby, infra page 13. County, rather than U.S., must assume taking
369 U.S. 84owned airportliability, since notwithstanding federal airport standards that must be
(1962)met for receipt of federal funds, county promoted, built, owns, and
operates airport.
Armstrong v.Required transfer to U.S. ofTaking occurred. Destruction by government of all value of lien
United States, 364title to unfinished boat,(which is property) is not mere consequential injury, hence non-
U.S. 40 (1960)making a materialmen’s liencompensable, but is rather a direct result of U.S.’ exercising option
unenforceableunder contract to take title to vessel.
United States v.Federal wartime orderNo taking. Government did not occupy, use, or possess mines; rather
Central Eurekarequiring non-essential goldit sought only to free up essential equipment and manpower for critical
Mining Co., 357mines to closewartime uses. Such a temporary restriction during wartime is not a
U.S. 155 (1958)taking.
Tee-Hit-TonRemoval by U.S. of timberNo taking. Permissive Indian occupancy i.e., occupancy not
Indians v. Unitedfrom certain Indian-occupiedspecifically recognized by Congress as ownership — may be
States, 348 U.S.lands in Alaskaextinguished without compensation.
272 (1955)
United States v.Destruction by U.S. army ofNo taking. Wartime destruction of private property by U.S. to prevent
Caltexprivate oil terminal, toimminent capture by an advancing enemy is exception to taking
(Philippines), Inc.,prevent its capture byclause.
344 U.S. 149advancing enemy
United States v.Temporary seizure andTaking occurred. Government asserted total dominion and control
Pewee Coal Co.,operation of coal mine byover the mines.
341 U.S. 114U.S. during wartime to avert
(1951) str i ke
United States v.Building of federal dam thatNeed not reach taking question, since Congress has not attempted to
Gerlach Liveended seasonal inundation oftake, or authorized the taking without compensation, of any rights
Stock Co., 339plaintiffs grasslands, turningvalid under state law.

U.S. 725 (1950)them parched

CaseAction attackedHolding/rationale
United States v.Flooding of land by federalWhen government takes by a continuing process of physical events,
Dickinson, 331dam in gradual, successiveowner is not required to resort to piecemeal or premature taking
U.S. 745 (1947)stagesactions. Date of taking occurs when situation becomes “stabilized.”
United States v.Frequent flights of militaryTaking occurred of air easement. Flights over private land that are so
Causby, 328 U.S.aircraft over chicken farm atlow and frequent as to be direct and immediate interference with use
256 (1946)low altitudeand enjoyment of land effect a taking.
United States v.Raising of water level byNo taking. Dam operators interest in rivers water level is
Willow RiverU.S., impairing efficiency ofsubordinate to paramount authority of U.S. to improve navigation.
Power Co., 324upstream hydro- electric dam
U.S. 499 (1945)
Bowles v.Federal statute authorizingNo taking. Impossibility of fixing rents landlord by landlord and
Willingham, 321restriction of rents inexistence of war are germane to constitutional issue. Nothing in act
U.S. 503 (1944)defense areasto levels thatrequires offering accommodations for rent. Price control may reduce
are “generally” fair, rathervalue of property, but that does not mean there is taking.
than fair to each landlord
United States v.Raising of water level byNo taking. Embankment was built on low-water mark in bed of
Chicago, M., St. P.U.S., forcing railroad to incurnavigable stream; government’s navigation servitude covers entire bed
& P. Railroad Co.,costs to protect embankmentof such streams to high-water mark.
312 U.S. 592
Danforth v. UnitedEnactment of flood controlMere enactment of statute authorizing future action cannot be taking,
States, 308 U.S.statute authorizing con-since “[s]uch legislation may be repealed or modified, or
271 (1939)demnationappropriations may fail.”
United States v.Enactment of flood controlNo taking of land within floodway. Improvements under act had not
Sponenbarger, 308act and operations pursuantincreased flood hazard. Also, government effort to lessen flood
U.S. 256 (1939)to acthazard did not constitute taking of those lands not afforded as much
protection as others.
Chippewa IndiansFederal statute creatingTaking occurred. Mere enactment deprived tribe of all its beneficial
v. United States,national forest on land heldinterest in the land.
305 U.S. 479by U.S. in trust for tribe
Shoshone Tribe v.Federal sanction of ArapahoeFederal guardianship of tribal land does not include requiring tribe to
United States, 299occupancy of land promisedwhich exclusive occupancy has been pledged to share land with
U.S. 476 (1937)by treaty to exclusiveanother tribe absent compensation.
occupancy of Shoshone
Louisville JointFederal statute eliminatingTaking occurred. Act as applied deprives mortgagee bank of its
Stock Land Bankcertain rights of mortgageesproperty rights under state law to retain lien until indebtedness is paid,
v. Radford, 295in property held as securityto realize on the security through judicial public sale, to control
U.S. 555 (1935)property during default period, etc. Loss of these rights effects
substantial impairment of the security. Act has taken from bank, and
given to mortgagor, rights in specific property which are of substantial
va l ue .
RailroadRequired federal retirementDue process violation occurred. Under scheme, a railroad must, in
Retirement Bd. v.scheme for interstate carriersaddition to making its own contributions to pension fund, act as
Alton Railroadinsurer of contributions required of other railroads and railroad
Co., 295 U.S. 330employees. Though property of railroads is dedicated to public use,
(1935)it remains the private property of its owners, and may not be taken
without compensation.

CaseAction attackedHolding/rationale
United States v.Portion of treaty lands takenFederal guardianship of tribal land does not allow appropriation by
Creek Nation, 295by survey error of U.S.,U.S. without compensation.
U.S. 103 (1935)given to another tribe
Norman v. B. &Federal mandate thatNo taking. Relies entirely on Legal Tender Cases, infra page 19.
O. Rd. Co., 294obligations be dischargeable
U.S. 240 (1935)by payment of legal tender,
voiding gold clause in pre-
existing private contract
MullenAcquisition by U.S. of lands,No taking of bonds. No lien remained on land at time of purchase by
Benevolent Corp.frustrating the replenishmentU.S., and frustration of ability to replenish fund is merely
v. United States,of town’s fund for repaymentconsequential damage, hence noncompensable.
290 U.S. 89of bonds
International PaperWartime requisition by U.S.Taking occurred. Fact that requisition occurred by contract is of no
Co. v. Unitedof all power producible bymoment, since power company was bound under governing
States, 282 U.S.power company from waterrequisition statute to obey. Paper company had water right, a property
399 (1931)in canal, cutting off paperright, to use of canal water, and federal action terminated that right in
companys lease right to useits entirety. Omnia Commercial Corp., infra page 14, can be
portion of such waterdistinguished, since here government took the property that petitioner
owned, rather than merely frustrating future deliveries under contract.
Nectow v. City ofEuclid-style comprehensiveDue process violation occurred. Because of industrial uses to which
Cambridge, 277zoning ordinance, as appliedadjoining lands on two sides are devoted, subject land has little value
U.S. 183 (1928)to designate portion offor limited purposes permitted in a residential zone. Land-use
plaintiff’s tract residentialrestriction cannot be imposed where, as here, it does not bear
substantial relation to public health, safety, morals, or general welfare.
Miller v. Schoene,State order that cedar treesState did not exceed due process or proper bounds of police power.
276 U.S. 272infected with infectious rustState may order destruction of one class of private property to save
(1928)disease be cut down, so asanother of greater value to public.
not to endanger nearby cash
Village of EuclidComprehensive zoningNo violation of due process. Zoning, as a general matter, is
v. Ambler Realtyordinancereasonable use of police-power to deal with increasingly crowded
Co., 272 U.S. 365urban conditions. Fact that non-offensive as well as noxious uses are
(1926)barred from a zone is not fatal.
Everard’sFederal statute prohibitingNo taking of brewerys property. (No further discussion.)
Breweries v. Day,doctors from prescribing
265 U.S. 545intoxicating malt liquors for
(1924)medicinal purposes
Brooks-ScanlonWartime requisition by U.S.Taking occurred. U.S. put itself in plaintiff’s shoes and appropriated
Corp. v. Unitedof all ships underto its own use all the rights and benefits that an assignee of the
States, 265 U.S.construction by shipyard andcontract would have had — such as credit for payments already made
106 (1924)related contracts, includingby plaintiff. U.S. sought to enforce the contract. This case is easily
plaintiff’s purchase contractdistinguished from Omnia Commercial Co., infra page 14, where U.S.
frustrated, but did not take over, the contract.
Omnia Commer-Wartime requisition by U.S.No taking. Though contract rights are property, U.S. did not “take
cial Co. v. Unitedof steel plant’s entire output,those rights, but merely frustrated their exercise. The Constitution
States, 261 U.S.precluding plaintiff fromdoes not demand compensation for such consequential harm.

502 (1923)buying steel at favorable
price under preexisting
contract with plant

CaseAction attackedHolding/rationale
Pennsylvania CoalState law barring coal miningTaking occurred. “While property may be regulated to a certain
Co. v. Mahon, 260that might cause subsidenceextent, if regulation goes too far it will be recognized as a taking.” By
U.S. 393 (1922)of overlying land, applicableeliminating right to mine coal, state law leaves the mineral estate
only where surface estateowner with nothing. Moreover, because state law applies only where
owner is different fromsurface is in different ownership, it benefits a narrow private interest
mineral estate ownerrather than a broad public one. And surface owners had expressly
contracted away their right to subjacent support.

III. Appropriations and Physical Takings Only:
1870 to 1922
The 1870s marked the Supreme Court’s first clear acknowledgment that the
Takings Clause is not only a constraint on the government’s formal exercise of
eminent domain, but the basis as well for suits by property owners challenging
government conduct not attended by such formal exercise. However, until 1922 the
Court believed such “inverse condemnation” suits to be confined to government
appropriations or physical invasions of property. Cases involving the impacts of
government water projects (flooding, reduced access, etc.) were typical. When cases
involving mere restrictions on the use of property reached the Court, they were tested
under due process, scope of the police power, or ultra vires theories.
CaseAction attackedHolding/rationale
PortsmouthPositioning of military gunsOccasional firings and other evidence showed that U.S. might have
Harbor Land &for firing over private resortinstalled guns not simply as wartime defenses, but to subordinate
Hotel Co. v.island, and actual firing onresort to right of government to fire across it at will, in peacetime. If
United States, 260several occasionsso, effects an appropriation of a servitude and requires compensation.
U.S. 327 (1922)
Corneli v. Moore,Federal refusal underNo taking. Application of National Prohibition Act to plaintiffs,
257 U.S. 491National Prohibition Act todespite their purchase of the liquor prior to its enactment, does not
(1922)allow plaintiffs to removeeffect a taking. Takings argument isanswered ... by the National
purchased liquor barrels fromProhibition Cases, 253 U.S. 350, 387.”
warehouse, despite pre-Act
Block v. Hirsh,Statute allowing tenants toNo taking. Validity of rate regulation in the public interest is well
256 U.S. 135remain in possession at samesettled. Statute is justified only as temporary measure related to war
(1921)rent upon expiration of leaseeffort. Landlord is assured of rents that are “reasonable.”
Bothwell v. UnitedGovernment flooding ofNo taking as to cattle or business. The U.S. need only pay for
States, 254 U.S.private land, forcing sale ofproperty it actually takes.
321 (1920)cattle at low prices and
destroying business
Walls v. MidlandState ban on non-heatingWithin state’s police power and does not take property without due
Carbon Co., 254uses of natural gas, forcingprocess. State may curtail extravagant uses of a natural resource in
U.S. 300 (1920)closing of plant that used gaswhich many have rights, limiting one person’s rights in order that
to make carbon blackothers may enjoy theirs.
Jacob Ruppert,Federal statute extendingNo taking. As in Hamilton, infra page 16, there was no appropriation
Inc., v. Caffey,wartime ban on domesticof private property, but merely a lessening of value due to a
251 U.S. 264liquor sales to beer, includingpermissible restriction on its use. Nor is it significant that ban took
(1920)supplies on hand ateffect immediately.
enactme nt
Hamilton v.Federal statute imposingNo taking. There was no appropriation for public purposes.
Kentuckywartime ban on domesticMoreover, statute gave plaintiff nine months after enactment to sell
Distilleries &liquor sales, includingliquor, and imposed no restriction at any time on export. Finally,
Warehouse Co.,supplies on hand atrestrictions here are less severe than ones upheld in state takings cases
251 U.S. 146enactmentunder Fourteenth Amendment.


CaseAction attackedHolding/rationale
Corn ProductsState food and drug lawNo taking. Though plaintiff’s syrup is a proprietary food, made under
Refining Co. v.requiring that table syrupa secret formula, there is no constitutional right to sell goods without
Eddy, 249 U.S.manufacturer affix labels ongiving information to purchaser as to what it is that is being sold.
427 (1919)product disclosingHence, cannot be said that there istaking of ... property without due
ingredients process of law.
United States v.Federal lock and dam projectTaking of flowage easement occurred. Governments right to make
Cress, 243 U.S.that raised water abovenavigational improvements is subject to taking clause when natural
316 (1917)natural levels, periodicallybounds of stream are exceeded.
flooding private land
Hadacheck v.Ordinance barring brickPolice power not exceeded. Only limit on police power is that it not
Sebastian, 239manufacture in residentialbe exercised arbitrarily. Fact that when brick manufacturing
U.S. 394 (1915)section of city, allegedlycommenced, residences on surrounding land had not yet been built,
reducing site’s value by 92-does not avail manufacturer.
Reinman v. LittleOrdinance barring liveryPolice power not exceeded; due process not violated. It is within
Rock, 237 U.S.stables in section of citypolice power to declare that in certain situations, a type of business
171 (1915)shall be deemed a nuisance and prohibited, even if it is not a nuisance
per se, as long as this power is not exercised arbitrarily or with unjust
d i sc r i mi na t i o n.
Richards v.Harm to property fromProperty owner’s nuisance action against railroad may proceed.
Washingtonoperation of nearby railroadWhile Congress may legalize what would otherwise be a public
Terminal Co., 233located, constructed, andnuisance, it may not immunize congressionally chartered railroad from
U.S. 546 (1914)maintained under acts ofprivate nuisance actions so as to amount to taking of private property.
CongressPrivate nuisances amounting to takings in this context are those where
railroad operation subjects property owner to more than typical injury,
as is the case here.
Peabody v. UnitedPositioning of military gunsNo taking. If U.S. had installed guns to establish right to fire over
States, 231 U.S.with capability of firing overland at will in peacetime, would be a taking. But here, practice shots
530 (1913)private resort island, lastcan be aimed elsewhere, and indeed, guns have not been fired for
fired in 1902many years. Cf. Portsmouth Harbor Land & Hotel Co., supra page
Noble State BankState statute requiring banksNo taking. A public advantage may justify a small taking of private
v. Haskell, 219to pay assessment to fundproperty for what, in its immediate purpose, is a private use. In
U.S. 104 (1911)designed to secure fulladdition, benefit conferred on plaintiff bank through this scheme of
repayment of depositsmutual protection is sufficient compensation for correlative burden
that it must assume.
United States v.Flooding from governmentTaking occurred. Destruction of an easement is as much a taking of
Welch, 217 U.S.dam, cutting off right of wayit as is an appropriation.
333 (1910)
Welch v. Swasey,State statute limiting heightNo taking. Height limitation here, even though a discrimination, is
214 U.S. 91of buildings in areanot so unreasonable as to deprive owner of property of its profitable
(1909)containing plaintiff’s land touse without justification. The discrimination was justified by the
lower height than elsewherepolice power.
Juragua Iron Co.Wartime destruction of U.S.No taking. American company doing business in enemy territory is
v. United States,companys property indeemed enemy of the U.S. with respect to its property located in that
212 U.S. 297enemy territory, on order ofterritory. No compensation is owed when such property is destroyed
(1909)U.S. military officer, tothrough military action justified under laws of war.

prevent spread of yellow
fe ve r

CaseAction attackedHolding/rationale
Sauer v. City ofConstruction of elevatedNo taking. Under New York law, public-highway abutter has
New York, 206public viaduct in city street,easements of access, light, and air against erection of elevated
U.S. 536 (1907)impairing access, light, androadway by private corporation, but not against erection of same for
air reaching plaintiff’spublic use.
Manigault v.Construction of state-No taking. Flooding effects taking only where there is material
Springs, 199 U.S.authorized dam, compellingimpairment of flooded lands value not, as here, where plaintiff is
473 (1905)plaintiff to raise his dikes andmerely put to some extra expense in raising dikes (and even though
impairing access to his landsdams sole purpose is to enhance value of downstream lowlands for
agriculture). No compensation for impaired access either, since
within state’s police power.
CaliforniaOrdinance requiring thatNo taking. Imposing expense on waste generator (assuming
Reduction Co. v.waste generated within citytransporter passes on disposal fees) was not taking, since it has always
Sanitarybe disposed of at designatedbeen generator’s duty to have garbage removed from his premises.
Reduction Works,site, at transporters expenseNor did destruction of waste amount to taking, even if some of its
199 U.S. 306constituents had value.
Bedford v. UnitedGovernment revetmentsNo taking. Damage to land, if caused by revetment at all, was but an
States, 192 U.S.along river to halt widening,incidental consequence; distinguished from instance where
217 (1904)causing river to flow fastergovernment dam in river causes flooding of private land directly.
and erode/flood downstream
United States v.Flooding from governmentTaking occurred. Where government dam floods land so as to
Lynah, 188 U.S.dam, completely destroyingsubstantially destroy its value, there is a taking.
445 (1903)land’s value
Meyer v.City-authorized railroadNo taking. Obstruction was not on plaintiff’s land. Hence, impact on
Richmond, 172obstruction to street,plaintiff amounted only to consequential damages, which are
U.S. 82 (1898)reducing traffic at plaintiff’snoncompensable.
properties nearby
Gibson v. UnitedConstruction of governmentNo taking. No appropriation or direct invasion occurred, only
States, 166 U.S.dike near plaintiff’s land,incidental injuries from a lawful exercise of federal navigation
269 (1897)preventing ingress and egressservitude. No water was thrown onto plaintiff’s land; dike did not
of vessels to commercialphysically touch the land or cause deposits thereon.
wharf on plaintiff’s land
Mugler v. Kansas,Ban in state constitution onNo taking. A prohibition simply upon the use of property for
123 U.S. 623manufacture or sale of liquor,purposes declared by valid legislation to be noxious cannot be deemed
(1887)greatly reducing brewerysa taking.
va l ue
United States v.Government’s offset of itsRelated discussion asserts that government cannot be charged for
Pacific Rd., 120costs in rebuilding bridgesinjury to private property caused by wartime operations in the field,
U.S. 227 (1887)destroyed in Civil War,or by measures necessary for armys safety. But when property of
against railroad’s claim forloyal citizens is taken for armys use, it has been practice to
servicescompensate, though “it may not be within the terms of the
constitutional clause.”
United States v.Building of dam, whichTaking occurred. Where United States by its agents proceeds under
Great Falls Mfg.occupied plaintiff’s land andact of Congress to occupy property for public use, it must compensate.

Co., 112 U.S. 645took his water rights

CaseAction attackedHolding/rationale
Transportation Co.Construction of tunnel underNo taking. Acts done in proper exercise of government powers, and
v. Chicago, 99river, temporarily limitingnot directly encroaching on private property, are not a taking.
U.S. 635 (1878)access to wharf
Pumpelly v. GreenDam that flooded plaintiff’sTaking occurred. It is not required that property be formally taken in
Bay Co., 80 U.S.land continuouslyorder to implicate Takings Clause. Serious interference with the
(13 Wall.) 166common and necessary use of property, as by continuous flooding,
(1871)effects a constitutional taking.
Legal TenderFederal statutes making U.S.No taking. Takings Clause has always been understood as referring
Cases (Knox v.currency legal tender foronly to a direct appropriation; it has no bearing on laws such as this
Lee), 79 U.S. (12payment of all debts, evenone that only indirectly cause loss. Overrules Hepburn v. Griswold,
Wall.) 457 (1870)those entered into before75 U.S. (8 Wall.) 603 (1870) (finding legal tender acts violative of
enactmentdue process, but briefly raising taking issue).