Order Code 97-122
CRS Report for Congress
Received through the CRS Web
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
Summary
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.

Contents
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.

CRS-2
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
decisions.
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).

CRS-3
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.
Case
Action attacked
Holding/rationale
San Remo Hotel,
City requirement that hotelier
Federal full faith and credit statute (barring relitigation of issues that
L.P. v. City and
pay $567,000 fee for
have been resolved by state courts of competent jurisdiction) admits of
County of San
converting residential rooms
no exception allowing relitigation in federal court of takings claims
Francisco, 125 S.
to tourist rooms, under
initially litigated in state court pursuant to "state exhaustion" ripeness
Ct. 2491 (2005)
ordinance seeking to preserve
prerequisite of Williamson County, infra page 8. Court rejects
supply of affordable rental
argument that whenever claimant reserves his federal taking claim in
housing
state court, federal courts should review the reserved federal claim de
novo, regardless of what issues the state court decided.
Lingle v. Chevron
State statute limiting rent that
No taking. Rule announced in Agins, infra page 9, that government
U.S.A. Inc., 125 S.
oil companies may charge
regulation of private property is a taking if it “does not substantially
Ct. 2074 (2005)
service station operators who
advance legitimate state interests,” is not a valid takings test. Takings
lease stations owned by oil
law looks at the burdens a regulation imposes on property. Thus, the
companies, in order to hold
physical taking, total taking, and Penn Central tests (infra page 10)
down retail gasoline prices
each aims to identify government actions that are “functionally
equivalent” to a direct appropriation. In contrast, the “substantially
advances” test focuses on the regulation’s effectiveness, a due-process-
like inquiry. Moreover, assessing the efficacy of regulations is a task
to which courts are ill-suited.

CRS-4
Case
Action attacked
Holding/rationale
Brown v. Legal
State’s use of interest earned
IOLTA program satisfies “public use” requirement of Takings Clause,
F o u n d . o f
by small or short-lived
given the compelling interest in providing legal services for the poor.
Washington, 538
deposits of title company’s
As to whether there was a taking, a per se test like that in Loretto, infra
U.S. 216 (2003)
clients’ funds to support legal
page 8, seems appropriate, and we assume such a taking occurred. But
services for the poor — under
there is still no constitutional violation. The Takings Clause proscribes
Interest on Lawyers’ Trust
takings without compensation. IOLTA mandates use of the interest
Accounts (IOLTA) program
only when it could generate no net interest for the client, owing to
administrative costs. Thus, the compensation owed is zero.
Verizon Commu-
FCC regulations under
Argument that historical costs should be used to avoid the possibility
nications, Inc. v.
Telecommunications Act of
of takings does not present a serious question. Incumbents do not
FCC, 535 U.S. 467
1996 providing that rates
argue that any particular rate is so unjust as to be confiscatory, but
(2002)
charged by incumbent local
general rule is that any question about the constitutionality of
exchange carriers to new
ratesetting is raised by rates, not ratesetting methods. Nor is FCC’s
competitors are to be based
action placed outside this rule by any clear signs that takings will occur
on forward-looking cost
if the historical-costs interpretation is allowed.
methodology, rather than
historical costs
T a h o e - S i e r r a
Building moratoria imposed
1981-1984 moratoria are not per se takings. The argument that a
P r e s e r v a t i o n
1981-1984 until bistate
moratorium prohibiting all economic use of a property, no matter how
Council, Inc. v.
agency could formulate new
briefly, is a per se taking must be rejected. Rather, such moratoria are
Tahoe Regional
regional land-use plan — plus
to be analyzed under the ad hoc balancing test of Penn Central, infra
Planning Agency,
freeze on building permits
page10. Neither First English, infra page 7, nor Lucas, infra page 6,
535 U.S. 302
from 1984 to 1987 under
support the per se taking argument. And the “parcel as a whole” rule
(2002)
court injunction against 1984
bars segmentation of a parcel’s temporal dimension, precluding
plan, plus restrictions under
consideration 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. Rhode
State denials rejecting
Taking claim is ripe. Given state’s interpretation of its regulations,
Island, 533 U.S.
developer’s proposals to fill
there was no ambiguity as to extent of development (none) allowed on
606 (2001)
in all or most of principally
wetlands portion of lot. Similarly, value of uplands portion, where a
wetland lot adjacent to coastal
single home may be built, was also settled. Hence, lot owner need not
pond
make 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 Monterey
City’s failure to approve
Issue of whether city was liable for taking, raised through civil rights
v. Del Monte
p r o p e r t y o w n e r ’ s
claim under 42 U.S.C. § 1983, was in this case an essentially fact-
D u n e s a t
development plans after five,
bound one, and thus properly submitted by district court to jury. Suit
Monterey, Ltd.,
progressively scaled-back
for legal relief under section 1983 is action at law sounding in tort, and
526 U.S. 687
proposals accommodating
is thus within jury guarantee in Seventh Amendment. Also “rough
(1999)
city’s progressively lower
proportionality” 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.

CRS-5
Case
Action attacked
Holding/rationale
Eastern Enter-
Federal statute requiring
Coal Industry Retiree Health Benefit of 1992 is unconstitutional as
prises v. Apfel,
company to fund health
applied to Eastern. In opinion accompanying judgment, four justices
524 U.S. 498
benefits of miner who worked
find taking because statute imposes severe retroactive liability on a
(1998)
for it decades earlier, where
limited class of parties that could not have anticipated the liability, and
company left mining business
the extent of liability is substantially disproportionate to the company’s
before promise of lifetime
experience in mining field. This points to a taking under Penn Central
b e n e fi t s i n co llective
test, infra page 10. Also, remedy for taking based on generalized
b a r g a i n i n g a g r e e me n t s
monetary liability is invalidation rather than compensation, supporting
became explicit in 1974
jurisdiction in district court.
Remaining justice supporting judgment sees instead a substantive
due process violation.
P h i l l i p s v .
State’s use of interest earned
Interest is property of clients, not state. Despite fact that interest would
Washington Legal
on small or short-lived
not exist but for IOLTA program, state’s rule that “interest follows
Foundation, 524
deposits of lawyers’ clients’
principal” must be followed. Nor can interest be regarded as mere
U.S. 156 (1998)
funds to support legal services
government-created value. Remanded for decision on whether taking
for the poor — under Interest
occurred.
on Lawyers’ Trust Accounts
(IOLTA) program
Suitum v. Tahoe
Agency’s ban on new land
Taking claim is ripe despite plaintiff’s not having applied for TRPA
Regional Planning
coverage in “Stream Envi-
approval of her sale of transferrable development rights (TDRs).
Agency, 520 U.S.
ronment Zones,” under which
“Final decision” requirement of Williamson County, infra page 8, does
725 (1997)
plaintiff was barred from
not embrace such TRPA approval, since parties agree on TDRs to
building home on residential
which 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 on
Taking occurred. The amendment, made in 1984, did not cure taking
519 U.S. 234
descent or devise of small
that Hodel v. Irving, infra page 7, found in pre-amendment version of
(1997)
interests in allotted Indian
statute. Amendment narrowed ban only as regards income-producing
land — as ban was narrowed
ability of the land, not its value. More important, amendment’s
by amendment
allowance of devise to current owners in same parcel still offends
Hodel by continuing to “severely restrict[]” Indian’s right to direct
descent of his property.
B e n n i s v .
Forfeiture of car, owned
No taking (of wife’s joint interest in car). To be sure, wife had no prior
Michigan, 5 1 6
jointly by plaintiff and her
knowledge of husband’s planned use of car. But government may not
U.S. 442 (1996)
h u s b a n d , b e c a u s e o f
be required to compensate an owner for property which it has already
husband’s illegal sexual
lawfully acquired under authority other than eminent domain. Then,
activity in car
too, the cases authorizing forfeiture are “too firmly fixed” to be now
displaced.
Dolan v. City of
Conditions imposed by city
Taking 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)
req uiring applicant to
landowner to allow public access to greenway did not. Hence, latter
dedicate public greenway
violated “nature of the permit condition” taking criterion in Nollan,
along stream and adjacent
infra page 6. Other condition, that pathway be dedicated, was not
bike/pedestrian pathway
shown by city to impose burden on applicant that was “roughly
proportional” to impact of applicant’s 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.”

CRS-6
Case
Action attacked
Holding/rationale
Concrete Pipe &
Federal statute requiring that
No taking. Taking claim is not aided by fact that collective bargaining
Products, Inc. v.
employer who withdraws
agreement predating statute protected employer from liability to plan
C o n s t r u c t i o n
from multi-employer pension
beyond specified contributions. Three-factor Penn Central test, infra
Laborers Pension
plan pay a fixed debt to plan
page 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. South
Development ban imposed on
Government regulation of land that completely eliminates economic
Carolina Coastal
vacant lots under state’s
use is a per se taking, even when the legislature asserts a prevention-of-
Council, 505 U.S.
beachfront management
harm purpose. There is a prior inquiry, however, as to whether
1003 (1992)
statute
proposed 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 of
Mobile home rent-control
No physical taking occurred. Neither state nor local law on its face
Escondido, 503
ordinance, combined with
requires landowner to dedicate his land to mobile home rentals, nor
U.S. 519 (1992)
state law forcing mobile home
overly limits his ability to terminate such use. Per se rule in Loretto,
park owner to accept
infra page 8, applies only when permanent physical occupation is
purchasers of mobile homes
coerced. Claim that procedure for changing use of park is overly
in park as new tenants
burdensome 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,
Federal “rails-to-trails”
Premature for Court to evaluate taking challenge to statute, because
494 U.S. 1 (1990)
statute, under which unused
even if it causes takings of reversionary interests, compensation is
railroad rights of way are
available under Tucker Act (authorizing suits against U.S. for
converted to recreational
compensation). Nothing in statute suggests the “unambiguous
t r a i l s n o t wi t h s t a n d i n g
intention” to withdraw Tucker Act remedy which this Court requires.
r e v e r s i o n a r y p r o p e r t y
For example, Congress’ expressed desire that program operate at “low
interests under state law
cost” 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% deduction
No taking. 1-1/2% deduction is a reasonable “user fee” intended to
Sperry Corp., 493
from awards of Iran-United
reimburse United States for its costs in connection with tribunal.
U.S. 52 (1989)
States Claims Tribunal as
Amount of fee need not be precisely tailored to use that party makes of
reimbursement to United
government services. Fee here is not so great as to belie its claimed
States for expenses incurred
status as a user fee.
in the arbitration
Duquesne Light
State agency’s refusal to
No taking. Under the circumstances, overall impact of preventing
Co. v. Barasch,
allow inclusion of cost of
amortization of such costs was small, and not shown to be unjust or
488 U.S. 299
canceled nuclear plants in
confiscatory.
(1989)
utility’s rate base
Pennell v. City of
Rent control ordinance
Not ripe. There was no evidence that hardship provision had in fact
San Jose, 485 U.S.
allowing rent increases of
ever been relied upon to limit a rent increase. Also, ordinance did not
1 (1988)
greater than set percentage
require rent limit in event of tenant hardship, only that hardship be
only after considering
considered.
economic hardship caused to
tenants
N o l l a n v .
State’s grant of building
Taking occurred. Permit condition (recording easement) did not
California Coastal
permit on condition property
substantially advance a government purpose that would justify denial
Comm’n, 483 U.S.
owners record easement
of permit (ensuring visual access to beach). Where such linkage exists,
825 (1987)
allowing public to traverse
however, no taking occurs even if outright appropriation of the
beach on property
property infringement (here, the easement) would be a taking.

CRS-7
Case
Action attacked
Holding/rationale
Bowen v. Gilliard,
Amendments to federal
No taking. Family has no property right to continued welfare benefits
483 U.S. 587
welfare program resulting in
at same level. Child receiving support payments suffers no substantial
(1987)
lower benefits and assignment
economic impact, since payments were likely used for entire family
of child support payments to
before amendments.
entire family
F i r s t E n g l i s h
Interim ordinance prohibiting
If a regulation is held to have taken property, Takings Clause requires
E v a n g e l i c a l
construction of any structures
compensation for the time during which regulation was in effect — i.e.,
Lutheran Church v.
in flood zone
until date of repeal or judicial invalidation. Mere invalidation of
County of Los
regulation 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 that
Taking occurred. Statute amounts to complete abrogation, rather than
481 U.S. 704
small interests in allotted
regulation, of right to pass on property — a right which, like the right
(1987)
Indian land may not descend
to exclude others, is basic to the concept of property.
by intestacy or devise, but
must escheat to tribe
K e y s t o n e
State regulation requiring that
No taking. Unlike similar anti-subsidence law held a taking in
Bituminous Coal
at least 50% of underground
Pennsylvania Coal Co., infra page 15, the statute here has a broad
A s s ’ n v .
coal be left in place, where
public purpose and does not rule out profitable mine operation.
DeBenedictis, 480
mining coal might cause
U.S. 470 (1987)
subsidence damage to surface
structures
FCC v. Florida
Federal regulation requiring
No taking. Per se rule in Loretto, infra page 8, applies only when
Power Corp., 480
that utility greatly reduce rent
permanent physical occupation is coerced, unlike here where utility
U.S. 245 (1987)
charged cable TV company
voluntarily entered into contract with cable company. And new rent
for attaching its cables to
ordered by FCC was not confiscatory, hence not a taking.
utility’s poles
M a c D o n a l d ,
Count y’s rej ectio n of
Not ripe. Developer must first obtain “final and authoritative
Sommer & Frates
developer’s first-submitted
determination” of the type and intensity of development that will be
v. Yolo County,
subdivision plat
permitted. County’s rejection of first-submitted plat does not preclude
477 U.S. 340
possibility 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. Public
Statutory repeal of provision
No taking. Repealed provision is not “property,” since Congress
Agencies Opposed
in federal-state agreements
reserved right to amend agreements in enacting governing statute, and
to Social Security
allowing states to end social
clause was not a debt or obligation of U.S.
Entrapment, 477
security coverage of state and
U.S. 41 (1986)
local employees
C o n n o l l y v .
Federal act requiring that
No taking. Taking does not occur every time law requires one person
Pension Benefit
employers who withdraw
to use his assets for benefit of another. Nor can statute be defeated by
Guaranty Corp.,
from a multi-employer
pre-existing contract provision protecting employers from further
475 U.S. 211
pension plan pay a fixed debt
liability.
(1986)
to the plan
United States v.
Corps of Engineers’ assertion
Not ripe. Mere assertion of regulatory jurisdiction by Corps is not
Riverside Bayview
of dredge and fill jurisdiction
taking; only when permit is denied so as to bar all beneficial use of
Homes, Inc., 474
over certain freshwater
property is there a taking. Also, fact that broad construction of statute
U.S. 121 (1985)
wetlands
might 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.

CRS-8
Case
Action attacked
Holding/rationale
Williamson County
Co unty’s r ej ectio n o f
Not ripe. Taking claim against state/local government in federal court
Regional Planning
developer’s subdivision plat
is not ripe unless (1) there is final and authoritative decision by
C o m m ’ n 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. 172
exhausted. 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 voiding
No taking. Loss of claim could have been avoided with minimal
Locke, 471 U.S. 84
unpatented mining claims
burden. No taking when property can continue to be held through
(1985)
when claim holder fails to
owner’s compliance with reasonable regulations. Texaco, Inc., v.
make timely annual filings
Short, infra page 8, found controlling.
Ruckelshaus v.
Public disclosure and other
Taking occurred. Trade secrets are property, but only those submitted
Monsanto Co., 467
use by EPA of industry-
1972-78, when federal pesticide statute contained a confidentiality
U.S. 986 (1984)
generated trade-secret data
guarantee, were taken. Before and after this period, there was no
submitted with application for
investment-backed expectation of confidentiality, hence no taking.
pesticide registration
Tucker 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
claim.
K i r b y F o r e s t
Filing of condemnation action
No taking. Mere act of filing leaves landowner free, during pendency
Industries, Inc. v.
by U.S. to acquire land for
of condemnation action, to make any use of property or to sell it (but
United States, 467
national park
loss in market value from such action is not compensable).
U.S. 1 (1984)
United States v.
Retroactive use of bankruptcy
Statute will not be applied retroactively to property rights established
Security Industrial
statute to avoid liens on
before enactment date, in absence of clear congressional intent. There
Bank, 459 U.S. 70
d ebtor’s property that
is substantial doubt whether retroactive destruction of liens comports
(1982)
attached before statute was
with Takings Clause, and statutory reading raising constitutional issues
enacted
should be avoided where possible.
L o r e t t o v .
State statute requiring
Taking occurred. Where as here government causes a “permanent
T e l e p r o m p t e r
landlords to allow installing
physical occupation” of property, it is a per se taking — no matter how
Manhattan CATV
of cable TV equipment on
important 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 dollar
balancing of factors.
Texaco, Inc. v.
State statute extinguishing
No taking. It is the owner’s failure to use the mineral estate or timely
Short, 454 U.S.
severed mineral estates
file a statement, not the state’s imposition of reasonable conditions on
516 (1982)
unused for long time unless
estate retention, that causes the property right to lapse.
owner filed statement within
prescribed period
Dames & Moore v.
President’s nullification of
No taking. Attachments were revocable and subordinate to President’s
Regan, 453 U.S.
attachments on Iranian assets
power under International Emergency Economic Powers Act. Hence,
654 (1981)
in U.S., during hostage crisis
there 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 statute
No taking. Plaintiffs failed to allege that any specific property was
452 U.S. 314
on surface mining of prime
taken. Mere enactment of statute was no taking, since prime farmland
(1981)
farmlands
provisions do not on their face deny landowners all economic use of
such land — e.g., do not restrict non-mining uses thereof.

CRS-9
Case
Action attacked
Holding/rationale
Hodel v. Virginia
Demand in federal act that
No taking. Plaintiffs failed to allege that any specific property was
Surface Mining &
surface miners restore steep
taken. Mere enactment of statute was no taking, since challenged
R e c l a m a t i o n
slopes to original contour, and
provisions do not on their face deny landowners all economic use of
Ass’n, 452 U.S.
surface mining prohibitions
affected land. In any event, taking claim is not ripe, since plaintiffs
264 (1981)
therein
never used avenues for administrative relief in act — e.g., variance
from original-contour requirement.
San Diego Gas &
City’s adoption of open-space
No final judgment by state court below as to whether a taking had
Electric Co. v. San
plan
occurred, hence no Supreme Court jurisdiction under 28 U.S.C. § 1257.
Diego, 450 U.S.
621 (1980)
Webb’s Fabulous
County court declaring as
Taking occurred. On facts presented, interest could not be viewed
Pharmacies, Inc.,
public money the interest on
simply as fee to cover court costs. State may not take interest simply
v. Beckwith, 449
interpleader fund deposited
by calling a deposited fund “public money.”
U.S. 155 (1980)
by litigants with the court
United States v.
1877 statute abrogating Sioux
Taking occurred. In giving tribe rations until they became self-
Sioux Nation of
Nation’s rights to Black Hills,
sufficient, 1877 statute did not effect a mere change in the form of
Indians, 448 U.S.
thus abrogating 1868 treaty
investment of Indian tribal property (land to rations) by the federal
371 (1980)
with tribe
trustee. 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 of
Municipal rezoning under
No facial taking; as-applied claim not ripe. Zoning law effects taking
Tiburon, 447 U.S.
which property owner could
if it does not substantially advance legitimate state interests or denies
255 (1980)
build between one and five
owner economically viable use of his land. Thus, no facial taking here:
houses on his land
enactment 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.
P r u n e Y a r d
State constitutional mandate
No taking. Will not unreasonably impair value or use of property as a
Shopping Center v.
that persons be allowed to
shopping center, since facility is open to public at large. And owner
Robins, 447 U.S.
engage in political expression
may restrict time, place, and manner of expression.
74 (1980)
in private shopping center
US v. Clarke, 445
Municipalities’ entering into
Federal statute providing that allotted Indian lands may be
U.S. 253 (1980)
physical possession of land
“condemned” under state law does not allow cities to take land by
w i t h o u t b r i n g i n g
physical possession in absence of formal condemnation proceeding.
condemnation action
Term “condemned” refers only to filing of condemnation by
government, not filing of “inverse condemnation” action by landowner.
Kaiser Aetna v.
Federal order that owners of
Taking occurred. Infringement of marina owner’s right to exclude
United States, 444
exclusive private marina,
others, particularly where there’s investment-backed expectation of
U.S. 164 (1979)
made navigable by private
privacy, goes beyond permissible regulation. Navigation servitude
funds, grant access to boating
does not grant government absolute taking immunity.
public
Andrus v. Allard,
Federal ban on sale of eagle
No taking. Denial of one traditional property right (selling) does not
444 U.S. 51 (1979)
parts or artifacts made
necessarily amount to taking, even if it is most profitable use of
therefrom, as applied to stock
property. Plaintiff retained right to possess, pass on, or exhibit for an
lawfully obtained before ban
admission price, the affected inventory.

CRS-10
Case
Action attacked
Holding/rationale
P e n n C e n t r a l
City’s use of historic preser-
No taking. Generally, there are three factors of “particular
Transp. Co. v.
vation ordinance to block
significance” in a takings determination: (1) economic impact of
New York City,
construction of office tower
regulation on property owner; (2) extent to which regulation interferes
438 U.S. 104
atop designated historic
with distinct investment-backed expectations; and (3) “character” of
(1978)
landmark
government 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. City’s 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.

CRS-11
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
theories.
Case
Action attacked
Holding/rationale
Duke Power Co. v.
Federal statute limiting
Where individuals seek declaratory judgment that statute (Price-
C a r o l i n a
amount recoverable by
Anderson Act) is unconstitutional because it does not assure adequate
E n v i r o n m e n t a l
injured parties in the event of
compensation in the event of a taking, rather than seeking
Study Group, 438
a nuclear accident
compensation, 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)
R e g i o na l R a i l
Federal statute directing
Availability of Tucker Act remedy (right to seek compensation from
R e o r g a n i z a t i o n
transfer of bankrupt rail-
U.S. in Court of Federal Claims) if rail act effects “erosion taking” is
Act Cases, 419
roads’ assets to federally
ripe issue in view of distinct possibility that compelled rail operations
U.S. 102 (1974)
created corporation and
at a loss would erode railroad’s value beyond constitutional limits.
forcing continued operation
Similarly, issue of remedy’s availability if rail act effects “conveyance
of unprofitable lines
taking” 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
stated.
Calero-Toledo v.
Puerto Rico’s seizure of
No taking. Forfeiture is not rendered unconstitutional because it
Pearson Yacht
yacht used for unlawful
applies to property of innocents. The property itself is treated as the
Leasing Co., 416
activity by lessee, but having
offender, making owner’s conduct irrelevant. Also, owner voluntarily
U.S. 663 (1974)
innocent lessor
entrusted 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. United
Pre-trial detention of federal
No taking. There is public duty to provide evidence; fact that pre-trial
States, 410 U.S.
criminal witnesses who are
detention is involved here, and that financial burden may be great, is
578 (1973)
likely to flee and cannot post
immaterial. Takings Clause does not make U.S. pay for performance
bond; payment of only one
of duty it is already owed. Hence, issue of whether one dollar is
dollar per day
adequate compensation need not be reached.

CRS-12
Case
Action attacked
Holding/rationale
YMCA v. United
Occupation of plaintiff’s
No taking. Where private party is intended beneficiary of government
States, 395 U.S.
buildings in Canal Zone by
activity, resultant losses need not be compensated even though activity
85 (1969)
U.S. troops seeking to
was also intended incidentally to benefit public. Also, damage by
protect buildings from
rioters was not caused directly and substantially by government
Panamanian rioters
occupation.
Heart of Atlanta
Federal statute banning racial
No taking. “The cases are to the contrary [of the taking claim].”
Motel, Inc. v.
discrimination in public
United States, 379
accommodations
U.S. 241 (1964)
Dugan v. Rank,
Threatened storage and
If plaintiffs have valid water rights that are partially taken, their
372 U.S. 609
diversion of water at
remedy is not an injunction stopping the reclamation project but a
(1963)
federally operated Central
taking suit against the U.S. under the Tucker Act. Damages are to be
Valley Project dam
measured by the difference in market value of the plaintiffs’ lands
before and after the taking.
G o l d b l a t t v .
Ordinance barring excavation
No taking. Fact that ordinance deprives property of its most
Hempstead, 369
below water table
beneficial 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.
G r i g g s v .
Low and frequent flights
Taking 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
3 6 9 U . S . 8 4
owned airport
liability, since notwithstanding federal airport standards that must be
(1962)
met for receipt of federal funds, county promoted, built, owns, and
operates airport.
A r m s t r o n g v .
Required transfer to U.S. of
Taking occurred. Destruction by government of all value of lien
United States, 364
title to unfinished boat,
(which is property) is not mere consequential injury, hence non-
U.S. 40 (1960)
making a materialmen’s lien
compensable, but is rather a direct result of U.S.’ exercising option
unenforceable
under contract to take title to vessel.
United States v.
Federal wartime order
No taking. Government did not occupy, use, or possess mines; rather
Central Eureka
requiring non-essential gold
it sought only to free up essential equipment and manpower for critical
Mining Co., 357
mines to close
wartime uses. Such a temporary restriction during wartime is not a
U.S. 155 (1958)
taking.
T e e - H i t - T o n
Removal by U.S. of timber
No taking. Permissive Indian occupancy — i.e., occupancy not
Indians v. United
from certain Indian-occupied
specifically recognized by Congress as ownership — may be
States, 348 U.S.
lands in Alaska
extinguished without compensation.
272 (1955)
United States v.
Destruction by U.S. army of
No taking. Wartime destruction of private property by U.S. to prevent
C
a
l
t
e
x
private oil terminal, to
imminent capture by an advancing enemy is exception to taking
(Philippines), Inc.,
prevent its capture by
clause.
344 U.S. 149
advancing enemy
(1952)
United States v.
Temporary seizure and
Taking occurred. Government asserted total dominion and control
Pewee Coal Co.,
operation of coal mine by
over the mines.
341 U.S. 114
U.S. during wartime to avert
(1951)
strike
United States v.
Building of federal dam that
Need not reach taking question, since Congress has not attempted to
G e r l a c h L i v e
ended seasonal inundation of
take, or authorized the taking without compensation, of any rights
Stock Co., 339
plaintiffs’ grasslands, turning
valid under state law.
U.S. 725 (1950)
them parched

CRS-13
Case
Action attacked
Holding/rationale
United States v.
Flooding of land by federal
When government takes by a continuing process of physical events,
Dickinson, 331
dam in gradual, successive
owner is not required to resort to piecemeal or premature taking
U.S. 745 (1947)
stages
actions. Date of taking occurs when situation becomes “stabilized.”
United States v.
Frequent flights of military
Taking occurred of air easement. Flights over private land that are so
Causby, 328 U.S.
aircraft over chicken farm at
low and frequent as to be direct and immediate interference with use
256 (1946)
low altitude
and enjoyment of land effect a taking.
United States v.
Raising of water level by
No taking. Dam operator’s interest in river’s water level is
W i l l o w R i v e r
U.S., impairing efficiency of
subordinate to paramount authority of U.S. to improve navigation.
Power Co., 324
upstream hydro- electric dam
U.S. 499 (1945)
B o w l e s v .
Federal statute authorizing
No taking. Impossibility of fixing rents landlord by landlord and
Willingham, 321
restriction of rents in
existence of war are germane to constitutional issue. Nothing in act
U.S. 503 (1944)
“defense areas” to levels that
requires offering accommodations for rent. Price control may reduce
are “generally” fair, rather
value of property, but that does not mean there is taking.
than fair to each landlord
United States v.
Raising of water level by
No taking. Embankment was built on low-water mark in bed of
Chicago, M., St. P.
U.S., forcing railroad to incur
navigable stream; government’s navigation servitude covers entire bed
& P. Railroad Co.,
costs to protect embankment
of such streams to high-water mark.
312 U.S. 592
(1941)
Danforth v. United
Enactment of flood control
Mere 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)
demnation
appropriations may fail.”
United States v.
Enactment of flood control
No taking of land within floodway. Improvements under act had not
Sponenbarger, 308
act and operations pursuant
increased flood hazard. Also, government effort to lessen flood
U.S. 256 (1939)
to act
hazard did not constitute taking of those lands not afforded as much
protection as others.
Chippewa Indians
Federal statute creating
Taking occurred. Mere enactment deprived tribe of all its beneficial
v. United States,
national forest on land held
interest in the land.
305 U.S. 479
by U.S. in trust for tribe
(1939)
Shoshone Tribe v.
Federal sanction of Arapahoe
Federal guardianship of tribal land does not include requiring tribe to
United States, 299
occupancy of land promised
which exclusive occupancy has been pledged to share land with
U.S. 476 (1937)
by treaty to exclusive
another tribe absent compensation.
occupancy of Shoshone
Louisville Joint
Federal statute eliminating
Taking occurred. Act as applied deprives mortgagee bank of its
Stock Land Bank
certain rights of mortgagees
property rights under state law to retain lien until indebtedness is paid,
v. Radford, 295
in property held as security
to 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
value.
R a i l r o a d
Required federal retirement
Due process violation occurred. Under scheme, a railroad must, in
Retirement Bd. v.
scheme for interstate carriers
addition to making its own contributions to pension fund, act as
Alton Railroad
insurer of contributions required of other railroads and railroad
Co., 295 U.S. 330
employees. 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.

CRS-14
Case
Action attacked
Holding/rationale
United States v.
Portion of treaty lands taken
Federal guardianship of tribal land does not allow appropriation by
Creek Nation, 295
by survey error of U.S.,
U.S. without compensation.
U.S. 103 (1935)
given to another tribe
Norman v. B. &
Federal mand ate that
No taking. Relies entirely on Legal Tender Cases, infra page 19.
O. Rd. Co., 294
obligations be dischargeable
U.S. 240 (1935)
by payment of legal tender,
voiding gold clause in pre-
existing private contract
M u l
l
e
n
Acquisition by U.S. of lands,
No taking of bonds. No lien remained on land at time of purchase by
Benevolent Corp.
frustrating the replenishment
U.S., and frustration of ability to replenish fund is merely
v. United States,
of town’s fund for repayment
consequential damage, hence noncompensable.
2 9 0 U . S . 8 9
of bonds
(1933)
International Paper
Wartime requisition by U.S.
Taking occurred. Fact that requisition occurred by contract is of no
Co. v. United
of all power producible by
moment, since power company was bound under governing
States, 282 U.S.
power company from water
requisition statute to obey. Paper company had water right, a property
399 (1931)
in canal, cutting off paper
right, to use of canal water, and federal action terminated that right in
company’s lease right to use
its entirety. Omnia Commercial Corp., infra page 14, can be
portion of such water
distinguished, since here government took the property that petitioner
owned, rather than merely frustrating future deliveries under contract.
Nectow v. City of
Euclid-style comprehensive
Due process violation occurred. Because of industrial uses to which
Cambridge, 277
zoning ordinance, as applied
adjoining lands on two sides are devoted, subject land has little value
U.S. 183 (1928)
to designate portion of
for limited purposes permitted in a residential zone. Land-use
plaintiff’s tract residential
restriction 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 trees
State did not exceed due process or proper bounds of police power.
276 U.S. 272
infected with infectious rust
State may order destruction of one class of private property to save
(1928)
disease be cut down, so as
another of greater value to public.
not to endanger nearby cash
crop
Village of Euclid
Co mp rehensive zoning
No violation of due process. Zoning, as a general matter, is
v. Ambler Realty
ordinance
reasonable use of police-power to deal with increasingly crowded
Co., 272 U.S. 365
urban conditions. Fact that non-offensive as well as noxious uses are
(1926)
barred from a zone is not fatal.
E v e r a r d ’ s
Federal statute prohibiting
No taking of brewery’s property. (No further discussion.)
Breweries v. Day,
doctors from prescribing
265 U.S. 545
intoxicating malt liquors for
(1924)
medicinal purposes
Brooks-Scanlon
Wartime requisition by U.S.
Taking occurred. U.S. put itself in plaintiff’s shoes and appropriated
Corp. v. United
o f a l l s h i p s u n d e r
to its own use all the rights and benefits that an assignee of the
States, 265 U.S.
construction by shipyard and
contract would have had — such as credit for payments already made
106 (1924)
related contracts, including
by plaintiff. U.S. sought to enforce the contract. This case is easily
plaintiff’s purchase contract
distinguished 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. United
of steel plant’s entire output,
those rights, but merely frustrated their exercise. The Constitution
States, 261 U.S.
precluding plaintiff from
does not demand compensation for such consequential harm.
502 (1923)
buying steel at favorable
price under preexisting
contract with plant

CRS-15
Case
Action attacked
Holding/rationale
Pennsylvania Coal
State law barring coal mining
Taking occurred. “While property may be regulated to a certain
Co. v. Mahon, 260
that might cause subsidence
extent, if regulation goes too far it will be recognized as a taking.” By
U.S. 393 (1922)
of overlying land, applicable
eliminating right to mine coal, state law leaves the mineral estate
only where surface estate
owner with nothing. Moreover, because state law applies only where
owner is different from
surface is in different ownership, it benefits a narrow private interest
mineral estate owner
rather than a broad public one. And surface owners had expressly
contracted away their right to subjacent support.

CRS-16
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.
Case
Action attacked
Holding/rationale
P o r t s m o u t h
Positioning of military guns
Occasional firings and other evidence showed that U.S. might have
Harbor Land &
for firing over private resort
installed guns not simply as wartime defenses, but to subordinate
Ho tel C o . v.
island, and actual firing on
resort to right of government to fire across it at will, in peacetime. If
United States, 260
several occasions
so, effects an appropriation of a servitude and requires compensation.
U.S. 327 (1922)
Corneli v. Moore,
Federal refusal under
No taking. Application of National Prohibition Act to plaintiffs,
257 U.S. 491
National Prohibition Act to
despite their purchase of the liquor prior to its enactment, does not
(1922)
allow plaintiffs to remove
effect a taking. Takings argument is “answered ... by the National
purchased liquor barrels from
Prohibition Cases, 253 U.S. 350, 387.”
warehouse, despite pre-Act
purchase
Block v. Hirsh,
Statute allowing tenants to
No taking. Validity of rate regulation in the public interest is well
256 U.S. 135
remain in possession at same
settled. Statute is justified only as temporary measure related to war
(1921)
rent upon expiration of lease
effort. Landlord is assured of rents that are “reasonable.”
Bothwell v. United
Government flooding of
No taking as to cattle or business. The U.S. need only pay for
States, 254 U.S.
private land, forcing sale of
property it actually takes.
321 (1920)
cattle at low prices and
destroying business
Walls v. Midland
State ban on non-heating
Within state’s police power and does not take property without due
Carbon Co., 254
uses of natural gas, forcing
process. State may curtail extravagant uses of a natural resource in
U.S. 300 (1920)
closing of plant that used gas
which many have rights, limiting one person’s rights in order that
to make carbon black
others may enjoy theirs.
Jacob Ruppert,
Federal statute extending
No taking. As in Hamilton, infra page 16, there was no appropriation
Inc., v. Caffey,
wartime ban on domestic
of private property, but merely a lessening of value due to a
251 U.S. 264
liquor sales to beer, including
permissible restriction on its use. Nor is it significant that ban took
(1920)
supplies on hand at
effect immediately.
enactment
H a m i l t o n v .
Federal statute imposing
No taking. There was no appropriation for public purposes.
K e n t u c k y
wartime ban on domestic
Moreover, statute gave plaintiff nine months after enactment to sell
D i s t i l l eries &
liquor sales, including
liquor, and imposed no restriction at any time on export. Finally,
Warehouse Co.,
sup p lies o n hand at
restrictions here are less severe than ones upheld in state takings cases
251 U.S. 146
enactment
under Fourteenth Amendment.
(1919)

CRS-17
Case
Action attacked
Holding/rationale
Corn Products
State food and drug law
No taking. Though plaintiff’s syrup is a proprietary food, made under
Refining Co. v.
requiring that table syrup
a secret formula, there is no constitutional right to sell goods without
Eddy, 249 U.S.
manufacturer affix labels on
giving information to purchaser as to what it is that is being sold.
427 (1919)
p r o d u c t d i s c l o s i n g
Hence, cannot be said that there is “taking of ... property without due
ingredients
process of law.”
United States v.
Federal lock and dam project
Taking of flowage easement occurred. Government’s right to make
Cress, 243 U.S.
that raised water above
navigational improvements is subject to taking clause when natural
316 (1917)
natural levels, periodically
bounds of stream are exceeded.
flooding private land
H a d a c h e c k v .
Ordinance barring brick
Police power not exceeded. Only limit on police power is that it not
Sebastian, 239
manufacture in residential
be exercised arbitrarily. Fact that when brick manufacturing
U.S. 394 (1915)
section of city, allegedly
commenced, residences on surrounding land had not yet been built,
reducing site’s value by 92-
does not avail manufacturer.
1/2%
Reinman v. Little
Ordinance barring livery
Police power not exceeded; due process not violated. It is within
Rock, 237 U.S.
stables in section of city
police 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
discrimination.
R i c h a r d s v .
Harm to property from
Property owner’s nuisance action against railroad may proceed.
W a s h i n g t o n
operation of nearby railroad
While Congress may legalize what would otherwise be a public
Terminal Co., 233
located, constructed, and
nuisance, it may not immunize congressionally chartered railroad from
U.S. 546 (1914)
maintained under acts of
private nuisance actions so as to amount to taking of private property.
Congress
Private 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. United
Positioning of military guns
No taking. If U.S. had installed guns to establish right to fire over
States, 231 U.S.
with capability of firing over
land at will in peacetime, would be a taking. But here, practice shots
530 (1913)
private resort island, last
can be aimed elsewhere, and indeed, guns have not been fired for
fired in 1902
many years. Cf. Portsmouth Harbor Land & Hotel Co., supra page
16.
Noble State Bank
State statute requiring banks
No taking. A public advantage may justify a small taking of private
v. Haskell, 219
to pay assessment to fund
property for what, in its immediate purpose, is a private use. In
U.S. 104 (1911)
designed to secure full
addition, benefit conferred on plaintiff bank through this scheme of
repayment of deposits
mutual protection is sufficient compensation for correlative burden
that it must assume.
United States v.
Flooding from government
Taking occurred. Destruction of an easement is as much a taking of
Welch, 217 U.S.
dam, cutting off right of way
it as is an appropriation.
333 (1910)
Welch v. Swasey,
State statute limiting height
No taking. Height limitation here, even though a discrimination, is
2 1 4 U . S . 9 1
of build ings in area
not so unreasonable as to deprive owner of property of its profitable
(1909)
containing plaintiff’s land to
use without justification. The discrimination was justified by the
lower height than elsewhere
police power.
Juragua Iron Co.
Wartime destruction of U.S.
No taking. American company doing business in enemy territory is
v. United States,
company’s property in
deemed enemy of the U.S. with respect to its property located in that
212 U.S. 297
enemy territory, on order of
territory. No compensation is owed when such property is destroyed
(1909)
U.S. military officer, to
through military action justified under laws of war.
prevent spread of yellow
fever

CRS-18
Case
Action attacked
Holding/rationale
Sauer v. City of
Construction of elevated
No taking. Under New York law, public-highway abutter has
New York, 206
public viaduct in city street,
easements of access, light, and air against erection of elevated
U.S. 536 (1907)
impairing access, light, and
roadway by private corporation, but not against erection of same for
air reaching plaintiff’s
public use.
property
M a n i g a u l t v .
Construction of state-
No taking. Flooding effects taking only where there is material
Springs, 199 U.S.
authorized dam, compelling
impairment of flooded land’s value — not, as here, where plaintiff is
473 (1905)
plaintiff to raise his dikes and
merely put to some extra expense in raising dikes (and even though
impairing access to his lands
dam’s sole purpose is to enhance value of downstream lowlands for
agriculture). No compensation for impaired access either, since
within state’s police power.
C a l i f o r n i a
Ordinance requiring that
No taking. Imposing expense on waste generator (assuming
Reduction Co. v.
waste generated within city
transporter passes on disposal fees) was not taking, since it has always
S a n i t a r y
be disposed of at designated
been generator’s duty to have garbage removed from his premises.
Reduction Works,
site, at transporter’s expense
Nor did destruction of waste amount to taking, even if some of its
199 U.S. 306
constituents had value.
(1905)
Bedford v. United
Government revetments
No 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 faster
government dam in river causes flooding of private land directly.
and erode/flood downstream
property
United States v.
Flooding from government
Taking occurred. Where government dam floods land so as to
Lynah, 188 U.S.
dam, completely destroying
substantially destroy its value, there is a taking.
445 (1903)
land’s value
M e y e r v .
City-authorized railroad
No taking. Obstruction was not on plaintiff’s land. Hence, impact on
Richmond, 172
o b struction to street,
plaintiff amounted only to consequential damages, which are
U.S. 82 (1898)
reducing traffic at plaintiff’s
noncompensable.
properties nearby
Gibson v. United
Construction of government
No 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 egress
servitude. No water was thrown onto plaintiff’s land; dike did not
of vessels to commercial
physically touch the land or cause deposits thereon.
wharf on plaintiff’s land
Mugler v. Kansas,
Ban in state constitution on
No taking. A prohibition simply upon the use of property for
123 U.S. 623
manufacture or sale of liquor,
purposes declared by valid legislation to be noxious cannot be deemed
(1887)
greatly reducing brewery’s
a taking.
value
United States v.
Government’s offset of its
Related discussion asserts that government cannot be charged for
Pacific Rd., 120
costs in rebuilding bridges
injury to private property caused by wartime operations in the field,
U.S. 227 (1887)
destroyed in Civil War,
or by measures necessary for army’s safety. But when property of
against railroad’s claim for
loyal citizens is taken for army’s use, it has been practice to
services
compensate, though “it may not be within the terms of the
constitutional clause.”
United States v.
Building of dam, which
Taking occurred. Where United States by its agents proceeds under
Great Falls Mfg.
occupied plaintiff’s land and
act of Congress to occupy property for public use, it must compensate.
Co., 112 U.S. 645
took his water rights
(1884)

CRS-19
Case
Action attacked
Holding/rationale
Transportation Co.
Construction of tunnel under
No taking. Acts done in proper exercise of government powers, and
v. Chicago, 99
river, temporarily limiting
not directly encroaching on private property, are not a taking.
U.S. 635 (1878)
access to wharf
Pumpelly v. Green
Dam that flooded plaintiff’s
Taking occurred. It is not required that property be formally taken in
Bay Co., 80 U.S.
land continuously
order to implicate Takings Clause. Serious interference with the
(13 Wall.) 166
common and necessary use of property, as by continuous flooding,
(1871)
effects a constitutional taking.
L e g a l T e n d e r
Federal statutes making U.S.
No taking. Takings Clause “has always been understood as referring
Cases (Knox v.
currency legal tender for
only to a direct appropriation”; it has no bearing on laws such as this
Lee), 79 U.S. (12
payment of all debts, even
one that only indirectly cause loss. Overrules Hepburn v. Griswold,
Wall.) 457 (1870)
those entered into before
75 U.S. (8 Wall.) 603 (1870) (finding legal tender acts violative of
enactment
due process, but briefly raising taking issue).