Takings Decisions of the U.S. Supreme Court:
A Chronology
Robert Meltz
Legislative Attorney
March 8, 2011
Congressional Research Service
7-5700
www.crs.gov
97-122
CRS Report for Congress
P
repared for Members and Committees of Congress

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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 (also
“formal 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 (also “inverse condemnation”)—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, has seen the Court attempt, with uneven
success, to develop workable indicia for the three types of takings (regulatory, physical, and
exaction), 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, such as whether they
were within a state’s police power, and generally upheld.

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

Contents
Introduction ................................................................................................................................ 1
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

Contacts
Author Contact Information ...................................................................................................... 19

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

Introduction
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 20th century, federal, state, and local regulation of private land
use has become pervasive. Beyond comprehensive zoning, the past half-century has 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 1970s 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 19th 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 1870s, 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
from the 1970s on.

1 Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922).
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Takings Decisions of the U.S. Supreme Court: A Chronology

* * * * *
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
headline-grabbing Supreme Court opinion in Kelo v. City of New London2 (2005), 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.

2 545 U.S. 469 (2005).
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Takings Decisions of the U.S. Supreme Court: A Chronology

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
Stop the Beach
Florida
Supreme
Court
No taking. Court holds unanimously that state supreme court decision
Renourishment,
decision below holding that
below did not contravene established property rights. Cannot be shown
Inc. v. Florida
state does not, through
that littoral owners had rights to future accretions and contact with
Dep’t of
beach restoration project,
water superior to state’s right to fill in its submerged land. Four
Environmental
effect facial taking of
concurring justices nonetheless venture that “judicial taking” concept is
Protection, 130
beachfront property
sound. That is, Takings Clause applies to judicial branch just as to other
S. Ct. 2592
owners’ littoral rights of
branches; hence if a court declares “that what was once an established
(2010)
accretion and direct
right of private property no longer exists, it has taken that property.” In
contact with water
other concurrences, four justices express reservations about judicial
takings, or argue that issue need not be addressed here. Justice Stevens
recused himself.
San Remo Hotel,
City
requirement
that
Federal full faith and credit statute (barring relitigation of issues that have
L.P. v. City and
hotelier pay $567,000 fee
been resolved by state courts of competent jurisdiction) admits of no
County of San
for converting residential
exception allowing relitigation in federal court of takings claims initially
Francisco, 545
rooms to tourist rooms,
litigated in state court pursuant to “state exhaustion” ripeness
U.S. 323 (2005)
under ordinance seeking to
prerequisite of Williamson County, infra page 8. Court rejects argument
preserve supply of
that whenever claimant reserves his federal taking claim in state court,
affordable rental housing
federal courts should review the reserved federal claim de novo,
regardless of what issues the state court decided.
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Takings Decisions of the U.S. Supreme Court: A Chronology

Case Action
attacked
Holding/rationale
Lingle v.
State statute limiting rent
No taking. Rule announced in Agins, infra page 9, that government
Chevron USA
that oil companies may
regulation of private property is a taking if it “does not substantially
Inc., 544 U.S. 528
charge service station
advance legitimate state interests,” is not a valid takings test. Takings law
(2005)
operators who lease
looks at the burdens a regulation imposes on property. Thus, the physical
stations owned by oil
taking, total taking, and Penn Central tests (infra page 10) each aims to
companies, in order to hold
identify government actions that are “functionally equivalent” to a direct
down retail gasoline prices
appropriation. In contrast, the “substantial y 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.
Brown v. Legal
State’s use of interest
IOLTA program satisfies “public use” requirement of Takings Clause,
Found. of
earned by small or short-
given the compelling interest in providing legal services for the poor. As
Washington, 538
lived deposits of title
to whether there was a taking, a per se test like that in Loretto, infra page
U.S. 216 (2003)
company’s clients’ funds to
8, seems appropriate, and we assume such a taking occurred. But there is
support legal services for
still no constitutional violation. The Takings Clause proscribes takings
the poor—under Interest
without compensation. IOLTA mandates use of the interest only when it
on Lawyers’ Trust
could generate no net interest for the client, owing to administrative
Accounts (IOLTA) program
costs. Thus, the compensation owed is zero.
Verizon
FCC regulations under
Argument that historical costs should be used to avoid the possibility of
Communications,
Telecommunications Act of
takings does not present a serious question. Incumbents do not argue
Inc. v. FCC, 535
1996 providing that rates
that any particular rate is so unjust as to be confiscatory, but general rule
U.S. 467 (2002)
charged by incumbent local
is that any question about the constitutionality of ratesetting is raised by
exchange carriers to new
rates, not ratesetting methods. Nor is FCC’s action placed outside this
competitors are to be
rule by any clear signs that takings will occur if the historical-costs
based on forward-looking
interpretation is allowed.
cost methodology, rather
than historical costs
Tahoe-Sierra
Building moratoria imposed 1981-1984 moratoria are not per se takings. The argument that a
Preservation
1981-1984 until bistate
moratorium prohibiting all economic use of a property, no matter how
Council, Inc. v.
agency could formulate
briefly, is a per se taking must be rejected. Rather, such moratoria are to
Tahoe Regional
new regional land-use
be analyzed under ad hoc balancing test of Penn Central, infra page 10.
Planning Agency,
plan—plus freeze on
Neither First English, infra page 7, nor Lucas, infra page 6, support the per
535 U.S. 302
building permits from 1984
se taking argument. And “parcel as a whole” rule bars segmentation of a
(2002)
to 1987 under court
parcel’s temporal dimension, precluding consideration of only the
injunction against 1984
moratorium period. Finally, “fairness and justice” and need for informed
plan, plus restrictions under
land-use planning support an ad hoc approach here. (Post-1984
1987 plan
restrictions not addressed.)
Palazzolo v.
State
denials
rejecting
Taking claim is ripe. Given state’s interpretation of its regulations, there
Rhode Island,
developer’s proposals to fill
was no ambiguity as to extent of development (none) allowed on
533 U.S. 606
in all or most of principally
wetlands portion of lot. Similarly, value of uplands portion, where a single
(2001)
wetland lot adjacent to
home may be built, was also settled. Hence, lot owner need not make
coastal pond
further applications to satisfy “final decision” prong 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 claim
v. Del Monte
property owner’s
under 42 U.S.C. § 1983, was in this case an essential y fact-bound one,
Dunes at
development plans after
and thus properly submitted by district court to jury. Suit for legal relief
Monterey, Ltd.,
five, progressively scaled-
under section 1983 is action at law sounding in tort, and is thus within
526 U.S. 687
back proposals
jury guarantee in Seventh Amendment. Also “rough proportionality”
(1999)
accommodating city’s
standard of Dolan, infra page 5, is not appropriate takings test. It was
progressively lower
designed to address exactions on development permits, not, as here,
development caps
denials of development.
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Takings Decisions of the U.S. Supreme Court: A Chronology

Case Action
attacked
Holding/rationale
Eastern
Federal statute requiring
Coal Industry Retiree Health Benefit of 1992 is unconstitutional as
Enterprises v.
company to fund health
applied to Eastern. In opinion accompanying judgment, four justices find
Apfel, 524 U.S.
benefits of miner who
taking because statute imposes severe retroactive liability on a limited
498 (1998)
worked for it decades
class of parties that could not have anticipated the liability, and the extent
earlier, where company left
of liability is substantially disproportionate to the company’s experience

mining business before
in mining field. This points to a taking under Penn Central test, infra page
promise of lifetime benefits
10. Also, remedy for taking based on generalized monetary liability is
in col ective bargaining
invalidation rather than compensation, supporting jurisdiction in district
agreements became explicit
court.
in 1974
Remaining justice supporting judgment sees instead a substantive due

process violation.
Phillips v.
State’s use of interest
Interest is property of clients, not state. Despite fact that interest would
Washington
earned on small or short-
not exist but for IOLTA program, state’s rule that “interest fol ows
Legal
lived deposits of lawyers’
principal” must be followed. Nor can interest be regarded as mere
Foundation, 524
clients’ funds to support
government-created value. Remanded for decision on whether taking
U.S. 156 (1998)
legal services for the
occurred.
poor—under Interest 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). “Final
Agency, 520 U.S.
ronment Zones,” under
decision” requirement of Williamson County, infra page 8, does not
725 (1997)
which plaintiff was barred
embrace such TRPA approval, since parties agree on TDRs to which
from building home on
plaintiff is entitled and no discretion remains for TRPA. TDRs’ value here
residential lot
is simply an issue of fact, which courts routinely resolve without benefit
of a market transaction.
Babbitt v.
Federal statute’s ban on
Taking occurred. The amendment, made in 1984, did not cure taking that
Youpee, 519 U.S.
descent or devise of smal
Hodel v. Irving, infra page 7, found in pre-amendment version of statute.
234 (1997)
interests in allotted Indian
Amendment narrowed ban only as regards income-producing ability of
land—as ban was narrowed
the land, not its value. More important, amendment’s allowance of devise
by amendment
to current owners in same parcel still offends Hodel by continuing to
“severely restrict[]” Indian’s right to direct descent of his property.
Bennis v.
Forfeiture of car, owned
No taking (of wife’s joint interest in car). To be sure, wife had no prior
Michigan, 516
jointly by plaintiff and her
knowledge of husband’s planned use of car. But government may not be
U.S. 442 (1996)
husband, because of
required to compensate an owner for property which it has already
husband’s illegal sexual
lawfully acquired under authority other than eminent domain. Then, too,
activity in car
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)
requiring 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, infra
along stream and adjacent
page 6. Other condition, that pathway be dedicated, was not shown by
bike/pedestrian pathway
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.”
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Takings Decisions of the U.S. Supreme Court: A Chronology

Case Action
attacked
Holding/rationale
Concrete Pipe &
Federal statute requiring
No taking. Taking claim is not aided by fact that col ective bargaining
Products, Inc. v.
that employer who
agreement predating statute protected employer from liability to plan
Construction
withdraws from multi-
beyond specified contributions. Three-factor Penn Central test, infra page
Laborers Pension
employer pension plan pay
10, does not point to taking: (1) government action merely adjusted
Trust, 508 U.S.
a fixed debt to plan
benefits and burdens of economic life; (2) withdrawal liability was not
602 (1993)
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 Government regulation of land that completely eliminates economic use
Carolina Coastal
on vacant lots under state’s
is a per se taking, even when the legislature asserts a prevention-of-harm
Council, 505 U.S.
beachfront management
purpose. There is a prior inquiry, however, as to whether proposed use
1003 (1992)
statute
is inherent in landowner’s title in light of “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 any right 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
overly limits his ability to terminate such use. Per se rule in Loretto, infra
home park owner to
page 8, applies only when permanent physical occupation is coerced.
accept purchasers of
Claim that procedure for changing use of park is overly burdensome is
mobile homes in park as
not ripe, since plaintiff has not gone through procedure. Regulatory taking
new tenants
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 chal enge to statute, because even
494 U.S. 1 (1990)
statute, under which
if it causes takings of reversionary interests, compensation is available
unused railroad rights of
under Tucker Act (authorizing suits against U.S. for compensation).
way are converted to
Nothing in statute suggests the “unambiguous intention” to withdraw
recreational trails
Tucker Act remedy which this Court requires. For example, Congress’
notwithstanding
expressed desire that program operate at “low cost” might merely reflect
reversionary property
its rejection of a more ambitious federal program, rather than withdrawal
interests under state law
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.,
from awards of Iran-United
reimburse United States for its costs in connection with tribunal. Amount
493 U.S. 52
States Claims Tribunal as
of fee need not be precisely tailored to use that party makes of
(1989)
reimbursement to United
government services. Fee here is not so great as to belie its claimed
States for expenses
status as a user fee.

incurred in the arbitration
Duquesne Light
State agency’s refusal to
No taking. Under the circumstances, overal 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
Pennel v. City of
Rent
control
ordinance
Not ripe. There was no evidence that hardship provision had in fact ever
San Jose, 485
allowing rent increases of
been relied upon to limit a rent increase. Also, ordinance did not require
U.S. 1 (1988)
greater than set percentage
rent limit in event of tenant hardship, only that hardship be considered.
only after considering

economic hardship caused
to tenants
Nollan v.
State’s grant of building
Taking occurred. Permit condition (recording easement) did not
California
permit on condition
substantial y advance a government purpose that would justify denial of
Coastal Comm’n,
property owners record
permit (ensuring visual access to beach). Where such linkage exists,
483 U.S. 825
easement al owing public to
however, no taking occurs even if outright appropriation of the property
(1987)
traverse beach on property
infringement (here, the easement) would be a taking.
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Takings Decisions of the U.S. Supreme Court: A Chronology

Case Action
attacked
Holding/rationale
Bowen v.
Amendments
to
federal
No taking. Family has no property right to continued welfare benefits at
Gilliard, 483 U.S.
welfare program resulting
same level. Child receiving support payments suffers no substantial
587 (1987)
in lower benefits and
economic impact, since payments were likely used for entire family
assignment of child support
before amendments.
payments to entire family
First English
Interim
ordinance
If a regulation is held to have taken property, Takings Clause requires
Evangelical
prohibiting construction of
compensation for the time during which regulation was in effect—i.e.,
Lutheran Church
any structures in flood
until date of repeal or judicial invalidation. Mere invalidation of regulation
v. County of Los
zone
is not a constitutionality sufficient remedy. (Existence of taking assumed
Angeles, 482 U.S.
by Court owing to posture of case.)
304 (1987)
Hodel v. Irving,
Federal statute declaring
Taking occurred. Statute amounts to complete abrogation, rather than
481 U.S. 704
that small interests in
regulation, of right to pass on property—a right which, like the right to
(1987)
allotted Indian land may not
exclude others, is basic to the concept of property.
descend by intestacy or
devise, but must escheat to
tribe
Keystone
State
regulation
requiring No taking. Unlike similar anti-subsidence law held a taking in Pennsylvania
Bituminous Coal
that at least 50% of
Coal Co., infra page 15, the statute here has a broad public purpose and
Ass’n v.
underground coal be left in
does not rule out profitable mine operation.
DeBenedictis,
place, where mining coal
480 U.S. 470
might cause subsidence
(1987)
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.,
that utility greatly reduce
permanent physical occupation is coerced, unlike here where utility
480 U.S. 245
rent charged cable TV
voluntarily entered into contract with cable company. And new rent
(1987)
company for attaching its
ordered by FCC was not confiscatory, hence not a taking.
cables to utility’s poles
MacDonald,
County’s
rejection
of
Not ripe. Developer must first obtain “final and authoritative
Sommer &
developer’s first-submitted
determination” of the type and intensity of development that will be
Frates v. Yolo
subdivision plat
permitted. County’s rejection of first-submitted plat does not preclude
County, 477 U.S.
possibility that submissions of scaled-down version of project might be
340 (1986)
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
No taking. Repealed provision is not “property,” since Congress reserved
Agencies
provision in federal-state
right to amend agreements in enacting governing statute, and clause was
Opposed to
agreements allowing states
not a debt or obligation of U.S.
Social Security
to end social security
Entrapment, 477
coverage of state and local
U.S. 41 (1986)
employees
Connolly v.
Federal act requiring that
No taking. Taking does not occur every time law requires one person to
Pension Benefit
employers who withdraw
use his assets for benefit of another. Nor can statute be defeated by pre-
Guaranty Corp.,
from a multi-employer
existing contract provision protecting employers from further liability.
475 U.S. 211
pension plan pay a fixed
(1986)
debt to the plan
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Takings Decisions of the U.S. Supreme Court: A Chronology

Case Action
attacked
Holding/rationale
United States v.
Corps
of
Engineers’
Not ripe. Mere assertion of regulatory jurisdiction by Corps is not taking;
Riverside
assertion of dredge and fill
only when permit is denied so as to bar al beneficial use of property is
Bayview Homes,
jurisdiction over certain
there a taking. Also, fact that broad construction of statute might yield
Inc., 474 U.S. 121
freshwater wetlands
more takings is not reason to construe statute narrowly, since taking is
(1985)
unconstitutional only if no means to obtain compensation exists. Such
means does exist here, since Tucker Act authorizes compensation for
federal takings.
Williamson
County’s
rejection
of
Not ripe. Taking claim against state/local government in federal court is
County Regional
developer’s subdivision plat
not ripe unless (1) there is final and authoritative decision by government
Planning
as to type and intensity of development allowed, and (2) avenues for
Comm’n v.
obtaining compensation from state forums have been exhausted. Here,
Hamilton Bank,
developer failed to seek variances following initial denial, thus has not
473 U.S. 172
received a final decision. Nor did developer use an available state
(1985)
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 burden.
Locke, 471 U.S.
unpatented mining claims
No taking when property can continue to be held through owner’s
84 (1985)
when claim holder fails to
compliance with reasonable regulations. Texaco, Inc., v. Short, infra page 8,
make timely annual filings
found controlling.
Ruckelshaus v.
Public disclosure and other
Taking occurred. Trade secrets are property, but only those submitted
Monsanto Co.,
use by EPA of industry-
1972-78, when federal pesticide statute contained a confidentiality
467 U.S. 986
generated trade-secret data
guarantee, were taken. Before and after this period, there was no
(1984)
submitted with application
investment-backed expectation of confidentiality, hence no taking.
for 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.
Kirby Forest
Filing
of
condemnation
No taking. Mere act of filing leaves landowner free, during pendency of
Industries, Inc. v.
action by U.S. to acquire
condemnation action, to make any use of property or to sel it (but loss
United States,
land for national park
in market value from such action is not compensable).
467 U.S. 1 (1984)

United States v.
Retroactive
use
of
Statute will not be applied retroactively to property rights established
Security
bankruptcy statute to avoid
before enactment date, in absence of clear congressional intent. There is
Industrial Bank,
liens on debtor’s property
substantial doubt whether retroactive destruction of liens comports with
459 U.S. 70
that attached before statute
Takings Clause, and statutory reading raising constitutional issues should
(1982)
was enacted
be avoided where possible.
Loretto v.
State statute requiring
Taking occurred. Where as here government causes a “permanent
Teleprompter
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 balancing
419 (1982)
ment of one dollar
of factors.
Texaco, Inc. v.
State statute extinguishing
No taking. It is the owner’s failure to use the mineral estate or timely file
Short, 454 U.S.
severed mineral estates
a statement, not the state’s imposition of reasonable conditions on estate
516 (1982)
unused for long time unless
retention, that causes the property right to lapse.
owner filed statement
within prescribed period
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Takings Decisions of the U.S. Supreme Court: A Chronology

Case Action
attacked
Holding/rationale
Dames & Moore
President’s
nullification
of No taking. Attachments were revocable and subordinate to President’s
v. Regan, 453
attachments on Iranian
power under International Emergency Economic Powers Act. Hence,
U.S. 654 (1981)
assets in U.S., during
there was no property in the attachments such as would support claim
hostage crisis
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
No taking. Plaintiffs failed to allege that any specific property was taken.
452 U.S. 314
statute on surface mining of
Mere enactment of statute was no taking, since prime farmland provisions
(1981)
prime farmlands
do not on their face deny landowners all economic use of such land—e.g.,
do not restrict non-mining uses thereof.
Hodel v. Virginia
Demand in federal act that
No taking. Plaintiffs failed to allege that any specific property was taken.
Surface Mining &
surface miners restore
Mere enactment of statute was no taking, since challenged provisions do
Reclamation
steep slopes to original
not on their face deny landowners all economic use of affected land. In
Ass’n, 452 U.S.
contour, and surface mining
any event, taking claim is not ripe, since plaintiffs never used avenues for
264 (1981)
prohibitions therein
administrative relief in act—e.g., variance from original-contour
requirement.
San Diego Gas &
City’s adoption of open-
No final judgment by state court below as to whether a taking had
Electric Co. v.
space plan
occurred, hence no Supreme Court jurisdiction under 28 U.S.C. § 1257.
San Diego, 450
U.S. 621 (1980)
Webb’s Fabulous County court declaring as
Taking occurred. On facts presented, interest could not be viewed simply
Pharmacies, Inc.,
public money the interest
as fee to cover court costs. State may not take interest simply by calling a
v. Beckwith, 449
on interpleader fund
deposited fund “public money.”
U.S. 155 (1980)
deposited by litigants with
the court
United States v.
1877 statute abrogating
Taking occurred. In giving tribe rations until they became self-sufficient,
Sioux Nation of
Sioux Nation’s rights to
1877 statute did not effect a mere change in the form of investment of
Indians, 448 U.S.
Black Hills, thus abrogating
Indian tribal property (land to rations) by the federal trustee. Rather, it
371 (1980)
1868 treaty with tribe
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 if it
Tiburon, 447
which property owner
does not substantially advance legitimate state interests or denies owner
U.S. 255 (1980)
could build between one
economically viable use of his land. Thus, no facial taking here: enactment
and five houses on his land
of ordinance is rational y related to legitimate public goal of open-space
preservation, ordinance benefits property owner as wel as public, and
owner may still be able to build up to five houses on lot. As-applied
chal enge is premature, since owner never submitted development plan
for approval under the new zoning.
Prune Yard
State
constitutional
No taking. Will not unreasonably impair value or use of property as a
Shopping Center
mandate that persons be
shopping center, since facility is open to public at large. And owner may
v. Robins, 447
allowed to engage in
restrict time, place, and manner of expression.
U.S. 74 (1980)
political expression in
private shopping center
US v. Clarke, 445 Municipalities’ entering into
Federal statute providing that allotted Indian lands may be “condemned”
U.S. 253 (1980)
physical possession of land
under state law does not al ow cities to take land by physical possession
without bringing
in absence of formal condemnation proceeding. Term “condemned”

condemnation action
refers only to filing of condemnation by government, not filing of “inverse
condemnation” action by landowner.
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Takings Decisions of the U.S. Supreme Court: A Chronology

Case Action
attacked
Holding/rationale
Kaiser Aetna v.
Federal order that owners
Taking occurred. Infringement of marina owner’s right to exclude others,
United States,
of exclusive private marina,
particularly where there’s investment-backed expectation of privacy, goes
444 U.S. 164
made navigable by private
beyond permissible regulation. Navigation servitude does not grant
(1979)
funds, grant access to
government absolute taking immunity.
boating 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
parts or artifacts made
necessarily amount to taking, even if it is most profitable use of property.
(1979)
therefrom, as applied to
Plaintiff retained right to possess, pass on, or exhibit for an admission
stock lawfully obtained
price, the affected inventory.
before ban
Penn Central
City’s use of historic
No taking. Generally, there are three factors of “particular significance” in
Transp. Co. v.
preservation ordinance to
a takings determination: (1) economic impact of regulation on property
New York City,
block construction of office
owner; (2) extent to which regulation interferes with distinct investment-
438 U.S. 104
tower atop designated
backed expectations; and (3) “character” of government action (meaning
(1978)
historic landmark
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, building owner cannot segment air rights
over building from remainder of property and claim that all use of air
rights was taken.
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Takings Decisions of the U.S. Supreme Court: A Chronology

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-
Carolina
amount recoverable by
Anderson Act) is unconstitutional because it does not assure
Environmental
injured parties in the event
adequate compensation in the event of a taking, rather than
Study Group, 438
of a nuclear accident
seeking compensation, they may do so in district court under 28
U.S. 59 (1978)
U.S.C. §1331(a), and may do so before potential y uncompensable
damages are sustained. (Footnote 15) Also, it is unnecessary to

reach taking claim here, because statute does not withdraw
Tucker Act remedy (right to seek compensation from U.S. in
Court of Federal Claims). (Footnote 39)
Regional Rail
Federal statute directing
Availability of Tucker Act remedy (right to seek compensation
Reorganization Act
transfer of bankrupt rail-
from U.S. in Court of Federal Claims) if rail act effects “erosion
Cases, 419 U.S. 102
roads’ assets to federal y
taking” is ripe issue in view of distinct possibility that compelled
(1974)
created corporation and
rail operations at a loss would erode railroad’s value beyond
forcing continued operation
constitutional limits. Similarly, issue of remedy’s availability if rail
of unprofitable lines
act effects “conveyance taking” is ripe, since act will lead
inexorably to conveyance of assets. On merits, Tucker Act
remedy is available for both al eged 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
Leasing Co., 416
activity by lessee, but having
the offender, making owner’s conduct irrelevant. Also, owner
U.S. 663 (1974)
innocent lessor
voluntarily entrusted yacht to lessee, and there was no allegation
that owner did al 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-
States, 410 U.S. 578
criminal witnesses who are
trial detention is involved here, and that financial burden may be
(1973)
likely to flee and cannot post
great, is immaterial. Takings Clause does not make U.S. pay for
bond; payment of only one
performance of duty it is already owed. Hence, issue of whether
dollar per day
one dol ar is adequate compensation need not be reached.
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Takings Decisions of the U.S. Supreme Court: A Chronology

Case
Action
attacked

Holding/rationale
New Haven
Accumulation of losses by
No taking of bondholders’ interests. They invested in a public
Inclusion Cases, 399
New Haven Railroad from
utility that has obligations to public, thus assuming risk that
U.S. 392 (1970)
inception of bankruptcy
interests of public would be considered in any reorganization
reorganization plan in 1961
along with their own. Bondholders’ rights do not dictate that vital
to inclusion in Penn Central
rail operations be jettisoned despite feasible alternatives. And no
Railroad in 1968
bondholder petitioned court to dismiss reorganization proceeding
and permit foreclosure until 1967.
YMCA v. United
Occupation
of
plaintiff’s
No taking. Where private party is intended beneficiary of
States, 395 U.S. 85
buildings in Canal Zone by
government activity, resultant losses need not be compensated
(1969)
U.S. troops seeking to
even though activity was also intended incidentally to benefit
protect buildings from
public. Also, damage by rioters was not caused directly and
Panamanian rioters
substantially by government 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, 372
Threatened
storage
and
If plaintiffs have valid water rights that are partially taken, their
U.S. 609 (1963)
diversion of water at
remedy is not an injunction stopping reclamation project but a
federally operated Central
taking suit against United States under Tucker Act. Damages are
Valley Project dam
to be measured by difference in market value of plaintiffs’ lands
before and after the taking.
Goldblatt v.
Ordinance
barring
No taking. Fact that ordinance deprives property of its most
Hempstead, 369
excavation below water
beneficial use, even an existing one, does not render it a taking.
U.S. 590 (1962)
table
No evidence that ordinance will reduce value of lot, and ordinance
is valid police-power regulation.
Griggs v. Allegheny
Low and frequent flights
Taking occurred of an air easement, per rule of United States v.
County, 369 U.S. 84
over home near county-
Causby, infra page 13. County, rather than U.S., must assume taking
(1962)
owned airport
liability, since notwithstanding federal airport standards that must
be met for receipt of federal funds, county promoted, built, owns,
and operates airport.
Armstrong 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
unenforceable
option under contract to take title to vessel.
United States v.
Federal wartime order
No taking. Government did not occupy, use, or possess mines;
Central Eureka
requiring non-essential gold
rather it sought only to free up essential equipment and
Mining Co., 357
mines to close
manpower for critical wartime uses. Such a temporary restriction
U.S. 155 (1958)
during wartime is not a taking.
Tee-Hit-Ton Indians Removal by U.S. of timber
No taking. Permissive Indian occupancy—i.e., occupancy not
v. United States,
from certain Indian-occupied
specifical y recognized by Congress as ownership—may be
348 U.S. 272 (1955)
lands in Alaska
extinguished without compensation.
United States v.
Destruction by U.S. army of
No taking. Wartime destruction of private property by U.S. to
Caltex (Philippines),
private oil terminal, to
prevent imminent capture by an advancing enemy is exception to
Inc., 344 U.S. 149
prevent its capture by
taking clause.
(1952)
advancing enemy
United States v.
Temporary seizure and
Taking occurred. Government asserted total dominion and
Pewee Coal Co.,
operation of coal mine by
control over the mines.
341 U.S. 114 (1951)
U.S. during wartime to avert
strike
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Takings Decisions of the U.S. Supreme Court: A Chronology

Case
Action
attacked

Holding/rationale
United States v.
Maintaining river level at
Taking occurred. Government is not shielded from takings liability
Kansas City Life
high water mark by federal
by its navigation servitude here; farm is above ordinary high water
Insurance Co., 339
lock and dam, raising water
mark, which defines limit of servitude. Destruction of farm’s
U.S. 799 (1950)
table on farm and thus
agricultural value is taking under principle that destruction of
destroying its agricultural
private land by flooding is taking. As with flooding, land was
value
permanently invaded, and it matters not whether invasion was
from above or below.
United States v.
Building of federal dam that
Need not reach taking question, since Congress has not
Gerlach Live Stock
ended seasonal inundation of
attempted to take, or authorized the taking without
Co., 339 U.S. 725
plaintiffs’ grasslands, turning
compensation, of any rights valid under state law.
(1950)
them parched
United States v.
Flooding of land by federal
When government takes by a continuing process of physical
Dickinson, 331 U.S.
dam in gradual, successive
events, owner is not required to resort to piecemeal or
745 (1947)
stages
premature takings 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
Causby, 328 U.S.
aircraft over chicken farm at
so low and frequent as to be direct and immediate interference
256 (1946)
low altitude
with use 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
Willow River
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)

Bowles 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
U.S. 503 (1944)
“defense areas” to levels that
act requires offering accommodations for rent. Price control may
are “generally” fair, rather
reduce 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
P. Railroad Co., 312
costs to protect
bed of such streams to high-water mark.
U.S. 592 (1941)
embankment

Danforth v. United
Enactment of flood control
Mere enactment of statute authorizing future action cannot be
States, 308 U.S. 271
statute authorizing con-
taking, since “[s]uch legislation may be repealed or modified, or
(1939)
demnation
appropriations may fail.”
United States v.
Enactment of flood control
No taking of land within floodway. Improvements under act had
Sponenbarger, 308
act and operations pursuant
not increased flood hazard. Also, government effort to lessen
U.S. 256 (1939)
to act
flood hazard did not constitute taking of those lands not afforded
as much protection as others.
Chippewa Indians v. Federal statute creating
Taking occurred. Mere enactment deprived tribe of all its
United States, 305
national forest on land held
beneficial interest in the land.
U.S. 479 (1939)
by U.S. in trust for tribe
Wright v. Vinton
Elimination of certain rights
No due process violation. Amended statute shortened stay of
Branch of Mountain
of mortgagees in property
foreclosure proceedings (during which debtor remained in
Trust Bank, 200
held as security, by statute
possession paying rent) from five years to three years, and
U.S. 40 (1937)
amended in response to
included new provision requiring that judicial sale be held if debtor
Louisville Joint Stock Land
failed to pay rent or comply with court orders.
Bank, infra page 14
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Takings Decisions of the U.S. Supreme Court: A Chronology

Case
Action
attacked

Holding/rationale
Shoshone Tribe v.
Federal sanction of Arapahoe Federal guardianship of tribal land does not include requiring tribe
United States, 299
occupancy of land promised
to 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. At the outset, bankruptcy power is subject to
Stock Land Bank v.
certain rights of mortgagees
Takings Clause. The statute as applied deprives mortgagee bank of
Radford, 295 U.S.
in property held as security
its property rights under state law to retain lien until indebtedness
555 (1935)
is paid, to realize on the security through judicial public sale, to
control property during default period, etc. Aggregate loss of
these rights effects substantial impairment of the security. Act has
taken from bank and given to mortgagor rights of substantial value.
Railroad
Required federal retirement
Due process violation occurred. Under scheme, a railroad must, in
Retirement Bd. v.
scheme for interstate
addition to making its own contributions to pension fund, act as
Alton Railroad Co.,
carriers
insurer of contributions required of other railroads and railroad
295 U.S. 330 (1935)
employees. Though property of railroads is dedicated to public
use, it remains private property of its owners, and may not be

taken without compensation.
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., given
U.S. without compensation.
U.S. 103 (1935)
to another tribe
Norman v. B. & O.
Federal
mandate
that
No taking. Relies entirely on Legal Tender Cases, infra page 19.
Rd. Co., 294 U.S.
obligations be dischargeable
240 (1935)
by payment of legal tender,
voiding gold clause in pre-

existing private contract
Mul en Benevolent
Acquisition by U.S. of lands,
No taking of bonds. No lien remained on land at time of purchase
Corp. v. United
frustrating the replenishment
by U.S., and frustration of ability to replenish fund is merely
States, 290 U.S. 89
of town’s fund for repayment
consequential damage, hence noncompensable.
(1933)
of bonds
International Paper
Wartime requisition by U.S.
Taking occurred. Fact that requisition occurred by contract is of
Co. v. United
of all power producible by
no moment, since power company was bound under governing
States, 282 U.S. 399
power company from water
requisition statute to obey. Paper company had water right, a
(1931)
in canal, cutting off paper
property right, to use of canal water, and federal action
company’s lease right to use
terminated that right in its entirety. Omnia Commercial Co., infra

portion of such water
page 15, can be 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
Cambridge, 277
zoning ordinance, as applied
which adjoining lands on two sides are devoted, subject land has
U.S. 183 (1928)
to designate portion of
little value for limited purposes permitted in a residential zone.
plaintiff’s tract residential
Land-use 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
276 U.S. 272 (1928)
infected with infectious rust
power. State may order destruction of one class of private
disease be cut down, so as
property to save another of greater value to public.
not to endanger nearby cash
crop
Village of Euclid v.
Comprehensive
zoning
No due process violation. Zoning, as a general matter, is
Ambler Realty Co.,
ordinance
reasonable use of police-power to deal with increasingly crowded
272 U.S. 365 (1926)
urban conditions. Fact that non-offensive as wel as noxious uses
are barred from a zone is not fatal.
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Takings Decisions of the U.S. Supreme Court: A Chronology

Case
Action
attacked

Holding/rationale
Everard’s Breweries Federal statute prohibiting
No taking of brewery’s property. (No further discussion.)
v. Day, 265 U.S. 545
doctors from prescribing
(1924)
intoxicating malt liquors for
medicinal purposes
Brooks-Scanlon
Wartime requisition by U.S.
Taking occurred. U.S. put itself in plaintiff’s shoes and appropriated
Corp. v. United
of al ships under
to its own use all the rights and benefits that an assignee of the
States, 265 U.S. 106
construction by shipyard and
contract would have had—such as credit for payments already
(1924)
related contracts, including
made by plaintiff. U.S. sought to enforce the contract. This case is
plaintiff’s purchase contract
easily distinguished from Omnia Commercial Co., infra page 15,
where U.S. frustrated, but did not take over, the contract.
Omnia Commercial
Wartime requisition by U.S.
No taking. Though contract rights are property, U.S. did not
Co. v. United
of steel plant’s entire output,
“take” those rights, but merely frustrated their exercise. The
States, 261 U.S. 502
precluding plaintiff from
Constitution does not demand compensation for such
(1923)
buying steel at favorable
consequential harm.
price under preexisting

contract with plant
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.”
U.S. 393 (1922)
of overlying land, applicable
By eliminating right to mine coal, state law leaves the mineral
only where surface estate
estate owner with nothing. Moreover, because state law applies

owner is different from
only where surface is in different ownership, it benefits a narrow
mineral estate owner
private interest rather than a broad public one. And surface
owners had expressly contracted away their right to subjacent
support.
Congressional Research Service
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Takings Decisions of the U.S. Supreme Court: A Chronology

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
Portsmouth
Positioning of military guns Occasional firings and other evidence showed that U.S. might have
Harbor Land &
for firing over private
installed guns not simply as wartime defenses, but to subordinate
Hotel Co. v.
resort island, and actual
resort to right of government to fire across it at will, in peacetime.
United States, 260
firing on several occasions
If so, effects an appropriation of a servitude and requires
U.S. 327 (1922)
compensation.

Corneli v. Moore,
Federal refusal under
No taking. Application of National Prohibition Act to plaintiffs,
257 U.S. 491
National Prohibition Act
despite their purchase of the liquor prior to its enactment, does
(1922)
to al ow plaintiffs to
not effect a taking. Takings argument is “answered ... by the
remove purchased liquor
National Prohibition Cases, 253 U.S. 350, 387.”
barrels from 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
settled. Statute is justified only as temporary measure related to
(1921)
same rent upon expiration
war effort. Landlord is assured of rents that are “reasonable.”
of lease
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 actual y 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
Carbon Co., 254
uses of natural gas, forcing
due process. State may curtail extravagant uses of a natural
U.S. 300 (1920)
closing of plant that used
resource in which many have rights, limiting one person’s rights in
gas to make carbon black
order that others may enjoy theirs.
Jacob Ruppert,
Federal statute extending
No taking. As in Hamilton, infra page 16, there was no
Inc., v. Caffey, 251
wartime ban on domestic
appropriation of private property, but merely a lessening of value
U.S. 264 (1920)
liquor sales to beer,
due to a permissible restriction on its use. Nor is it significant that
including supplies on hand
ban took effect immediately.
at enactment
Hamilton v.
Federal statute imposing
No taking. There was no appropriation for public purposes.
Kentucky
wartime ban on domestic
Moreover, statute gave plaintiff nine months after enactment to sel
Distilleries &
liquor sales, including
liquor, and imposed no restriction at any time on export. Finally,
Warehouse Co.,
supplies on hand at
restrictions here are less severe than ones upheld in state takings
251 U.S. 146
enactment
cases under Fourteenth Amendment.
(1919)
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Takings Decisions of the U.S. Supreme Court: A Chronology

Case
Action
attacked

Holding/rationale
Corn Products
State food and drug law
No taking. Though plaintiff’s syrup is a proprietary food, made
Refining Co. v.
requiring that table syrup
under a secret formula, there is no constitutional right to sel
Eddy, 249 U.S.
manufacturer affix labels
goods without giving information to purchaser as to what it is that
427 (1919)
on product disclosing
is being sold. Hence, cannot be said that there is “taking of ...
ingredients
property without due process of law.”
United States v.
Federal lock and dam
Taking of flowage easement occurred. Government’s right to make
Cress, 243 U.S.
project that raised water
navigational improvements is subject to taking clause when natural
316 (1917)
above natural levels,
bounds of stream are exceeded.
periodically flooding
private land
Hadacheck v.
Ordinance barring brick
Police power not exceeded. Only limit on police power is that it
Sebastian, 239
manufacture in residential
not 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
reducing site’s value by
built, does not avail manufacturer.
92-1/2%
Houck v. Little
Tax of 25 cents per acre
No taking. Argument that plaintiff’s land will not be benefitted by
River Drainage
levied upon all land within
newly formed district, and thus that tax is to that extent a taking
District, 239 U.S.
drainage district to pay
without just compensation, must be rejected. “[T]he power of
254 (1915)
district’s preliminary
taxation should not be confused with the power of eminent
organizing expenses
domain. Each is governed by its own principles.”
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.
Richards v.
Harm to property from
Property owner’s nuisance action against railroad may proceed.
Washington
operation of nearby
While Congress may legalize what would otherwise be a public
Terminal Co., 233
railroad located,
nuisance, it may not immunize congressionally chartered railroad
U.S. 546 (1914)
constructed, and
from private nuisance actions so as to amount to taking of private
maintained under acts of
property. Private nuisances amounting to takings in this context are
Congress
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 instal ed guns to establish right to fire over
States, 231 U.S.
with capability of firing
land at will in peacetime, would be a taking. But here, practice
530 (1913)
over private resort island,
shots can be aimed elsewhere, and indeed, guns have not been
last fired in 1902
fired for many years. Cf. Portsmouth Harbor Land & Hotel Co., supra
page 16.
Noble State Bank
State statute requiring
No taking. A public advantage may justify a small taking of private
v. Haskell, 219
banks to pay assessment
property for what, in its immediate purpose, is a private use. In
U.S. 104 (1911)
to fund designed to secure
addition, benefit conferred on plaintiff bank through this scheme of
ful 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
it as is an appropriation.
333 (1910)
way
Welch v. Swasey,
State
statute
limiting
No taking. Height limitation here, even though a discrimination, is
214 U.S. 91 (1909)
height of buildings in area
not so unreasonable as to deprive owner of property of its
containing plaintiff’s land
profitable use without justification. The discrimination was justified
to lower height than
by the police power.
elsewhere
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Takings Decisions of the U.S. Supreme Court: A Chronology

Case
Action
attacked

Holding/rationale
Juragua Iron Co. v. Wartime destruction of
No taking. American company doing business in enemy territory is
United States, 212
U.S. company’s property
deemed enemy of the U.S. with respect to its property located in
U.S. 297 (1909)
in enemy territory, on
that territory. No compensation is owed when such property is
order of U.S. military
destroyed through military action justified under laws of war.
officer, to prevent spread
of yel ow fever
Sauer v. City of
Construction of elevated
No taking. Under New York law, public-highway abutter has
New York, 206
public viaduct in city
easements of access, light, and air against erection of elevated
U.S. 536 (1907)
street, impairing access,
roadway by private corporation, but not against erection of same
light, and air reaching
for public use.
plaintiff’s property
Manigault v.
Construction
of
state-
No taking. Flooding effects taking only where there is material
Springs, 199 U.S.
authorized dam,
impairment of flooded land’s value—not, as here, where plaintiff is
473 (1905)
compelling plaintiff to raise
merely put to some extra expense in raising dikes (and even
his dikes and impairing
though dam’s sole purpose is to enhance value of downstream
access to his lands
lowlands for agriculture). No compensation for impaired access
either, since within state’s police power.
California
Ordinance requiring that
No taking. Imposing expense on waste generator (assuming
Reduction Co. v.
waste generated within
transporter passes on disposal fees) was not taking, since it has
Sanitary
city be disposed of at
always been generator’s duty to have garbage removed from his
Reduction Works,
designated site, at
premises. Nor did destruction of waste amount to taking, even if
199 U.S. 306
transporter’s expense
some of its constituents had value.
(1905)

New Orleans
Requirement
by
drainage No taking. Plaintiff’s franchise gave it only right to locate its pipes
Gaslight Co. v.
district that gas utility
under streets of city, not right to any particular place such that
Drainage Comm’n
move some of its pipes at
plaintiff must be compensated should relocation be required.
of New Orleans,
its own expense
197 U.S. 453
(1905)
Bedford v. United
Government
revetments No taking. Damage to land, if caused by revetment at all, was but
States, 192 U.S.
along river to halt
an incidental consequence; distinguished from instance where
217 (1904)
widening, causing river to
government dam in river causes flooding of private land directly.
flow faster 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
substantially destroy its value, there is a taking.
445 (1903)
destroying land’s value
Meyer v.
City-authorized
railroad No taking. Obstruction was not on plaintiff’s land. Hence, impact
Richmond, 172
obstruction to street,
on 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
No taking. No appropriation or direct invasion occurred, only
States, 166 U.S.
government dike near
incidental injuries from lawful exercise of federal navigation
269 (1897)
plaintiff’s land, preventing
servitude. No water was thrown onto plaintiff’s land; dike did not
ingress and egress of
physical y touch land or cause deposits thereon.
vessels to commercial
wharf on plaintiff’s land
Mugler v. Kansas,
Ban in state constitution
No taking. A prohibition simply upon use of property for purposes
123 U.S. 623
on manufacture or sale of
declared by valid legislation to be noxious cannot be deemed a
(1887)
liquor, greatly reducing
taking.
brewery’s value
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Takings Decisions of the U.S. Supreme Court: A Chronology

Case
Action
attacked

Holding/rationale
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
U.S. 227 (1887)
destroyed in Civil War,
field, or by measures necessary for army’s safety. But when
against railroad’s claim for
property of loyal citizens is taken for army’s use, it has been
services
practice to 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
Great Falls Mfg.
occupied plaintiff’s land
under act of Congress to occupy property for public use, it must
Co., 112 U.S. 645
and took his water rights
compensate.
(1884)

Transportation
Construction
of
tunnel
No taking. Acts done in proper exercise of government powers,
Co. v. Chicago, 99
under river, temporarily
and not directly encroaching on private property, are not a taking.
U.S. 635 (1878)
limiting access to wharf
Pumpelly v. Green Dam
that
flooded
Taking occurred. It is not required that property be formal y taken
Bay Co., 80 U.S.
plaintiff’s land continuously
in 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.
Legal Tender
Federal
statutes
making
No taking. Takings Clause “has always been understood as
Cases (Knox v.
U.S. currency legal tender
referring only to a direct appropriation”; it has no bearing on laws
Lee), 79 U.S. (12
for payment of al debts,
such as this one that only indirectly cause loss. Overrules Hepburn
Wall.) 457 (1870)
even those entered into
v. Griswold, 75 U.S. (8 Wall.) 603 (1870) (finding legal tender acts
before enactment
violative of due process, but briefly raising taking issue).


Author Contact Information

Robert Meltz

Legislative Attorney
rmeltz@crs.loc.gov, 7-7891


Congressional Research Service
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