Takings Decisions of the U.S. Supreme Court:
A Chronology
Robert Meltz
Legislative Attorney
December 9, 2013
Congressional Research Service
7-5700
www.crs.gov
97-122

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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. The Takings Clause states: “[N]or shall private property be taken for
public use, without just compensation.” A scattering of related, substantive due process decisions
is also included.
Under the Takings Clause, courts allow two 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.
Finding the line between government interferences with property that are takings and those that
are not has occupied the Supreme Court in most of the 100-plus decisions compiled here. The
Supreme Court’s decisions in these takings actions reach back to 1870, and are divided in this
report into three periods.
The modern period, 1978 to the present, has seen the Court settle into a taxonomy of four
fundamental types of takings—total regulatory takings, partial regulatory takings, physical
takings, and exaction takings. The Court in this period also has sought to develop criteria for
these four types, and to set out ripeness standards and clarify the required remedy. In the
preceding period, 1922 to 1978, the Court first announced the regulatory taking concept—the
notion 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, continuing rather its earlier focus on appropriations and physical
occupations. In the earliest period of takings law, 1870 to 1922, the Court saw the Takings Clause
as protecting property owners only from appropriations and physical invasions, two forms of
government interference with property seen by the Court as most functionally similar to an
outright condemnation of property. During this infancy of takings law, regulatory restrictions
were tested under other, non-takings theories, such as whether they were within a state’s police
power, and were generally upheld.
The three takings cases decided by the Supreme Court during its 2012-2013 term attest to the
Court’s continuing interest in the takings issue.

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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........................................................................................................... 20

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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. More than 50 takings cases have been decided by the Supreme Court since it launched the
modern era of takings jurisprudence in 1978. No debate on the proper balance between private
property rights and conflicting societal needs is complete without noting the Takings Clause.
The Takings Clause states: “[N]or shall private property be taken for public use, without just
compensation.” Until the late 19th century, this clause was applied by the Supreme Court only to
condemnation: the formal exercise by government of its eminent domain power to take property
coercively, upon payment of just compensation to the property owner. 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 what
constitutes “just compensation.”
Beginning in the 1870s, the Supreme Court gave its imprimatur to a 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 sue
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. Only if
a taking is found does the question of just compensation arise.
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,
as described above, to the mere regulation of property use. This critical expansion of takings
jurisprudence to “regulatory takings” acknowledged that purely regulatory interferences with
property rights can have economic and other consequences for property owners as significant as
appropriations and physical invasions. The regulatory taking concept opened up vast new legal
possibilities for property owners, and underlies many of the Supreme Court’s takings decisions
from the 1970s on.
The ascendancy of the regulatory taking concept since the 1970s is hardly surprising. 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 60
years 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, mining restrictions, and so on. Regulation of
non-real-estate property has also proliferated. In the Supreme Court, the appointment of several
conservative justices since the 1970s has prompted a new scrutiny of government conduct vis-à-
vis the private property owner.

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

As a result of these factors, the Court since the late 1970s has turned its attention toward the
takings issue with vigor. Through the 1980s and 1990s, property owner plaintiffs scored several
major victories; by and large, the substantive doctrine of takings shifted to the right. In 2000-
2005, however, the Court’s decisions moved the analytical framework in a more government-
friendly direction. The pendulum may yet be swinging again: the three takings cases decided by
the Court during its 2012-2013 term were all decided in favor of the property owner, though
mostly as to narrow issues.
* * * * *
This report compiles only Supreme Court decisions addressing issues with special relevance 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
substantive due process decisions is interspersed where they 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.
The reader desiring a more analytical discussion of inverse condemnation law should consult
CRS Report RS20741, The Constitutional Law of Property Rights “Takings”: An Introduction,
also prepared by Robert Meltz.

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, infra page 10, 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 Supreme 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, for example, Loretto, infra page 9, and Lucas, infra page 6. Since 2000, however, it
has again been extolling the multifactor, case-by-case approach of that decision—see Palazzolo,
infra page 5; Tahoe-Sierra, infra page 4; and Lingle, infra page 4. 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.3

Case Action
attacked
Holding/rationale
Koontz v. St.
Exaction
condition
Exaction takings tests in Nollan, infra page 7, and Dolan, infra page 6, apply
Johns River
demanded by district to
even when, as here, land-use permit applicant refuses exaction conditions
Water Mgmt.
approve landowner’s
and permit is denied. Immaterial that no exactions were imposed, since
Dist., 133 S. Ct.
proposed development of
Nollan and Dolan are based on doctrine of unconstitutional conditions
2586 (2013)
3.7 acres, almost all
under which it is the impermissible burdening of right not to have
wetland, of 14-acre tract.
property taken without compensation that offends. But in absence of a
Condition was for
taking, remedy hinges on cause of action. Also, Nollan and Dolan tests
landowner to pay for
apply to monetary as well as land-dedication exactions. Rule in Eastern
enhancing wetlands on
Enterprises, infra page 5, that monetary liability payable with any funds
district-owned land.
cannot be taking, does not apply here where liability is tied to specific
property.
Horne v. Dep’t
Fines and civil penalties
Ninth Circuit erred in holding it lacked jurisdiction over takings claim. It
of Agriculture,
imposed on petitioners for
incorrectly found that petitioners brought taking claim as raisin producers
133 S. Ct. 2053
failing to set aside raisin
rather than raisin handlers, only handlers being covered by statute. Case
(2013)
reserve contribution
is ripe because petitioners are subject to final agency order imposing fines
required under 1937
and penalties, and because statute is comprehensive remedial scheme that
statute seeking to stabilize
withdraws Tucker Act jurisdiction over taking claim in Court of Federal
agricultural prices by
Claims. Final y, takings defense may be raised by handler in USDA
controlling market
enforcement proceeding: statute does not forbid, and makes little sense
surpluses.
to pay fine in one proceeding and then have to sue to recover same
money in second, takings proceeding.

3 544 U.S. 528, 548 (2005).
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Takings Decisions of the U.S. Supreme Court: A Chronology

Case Action
attacked
Holding/rationale
Arkansas Game
Corps of Engineers’ 8 years
Even government-induced flooding that is temporary may, depending on
& Fish Comm’n
of deviations from its long-
circumstances, be a taking. Categorical rule extracted by court below
v. United States,
standing water release plan
from Sanguinetti, infra page 15—that unlike other physical invasions by
133 S. Ct. 511
for dam, extending flooding
government, flooding can be a taking only if permanent or “intermittent
(2012)
period in downstream
but inevitably recurring”—is inconsistent with later Supreme Court
wildlife preserve and killing
takings jurisprudence recognizing temporary takings. Circumstances
bottomland hardwood
pertinent to whether temporary flooding effects a taking include severity,
trees there.
duration, character of parcel, and owner’s expectations regarding parcel’s
use.
Stop the Beach
Florida
Supreme
Court
No taking. Court holds unanimously that state supreme court decision
Renourishment,
decision below holding that
did not contravene established property rights. Cannot be shown that
Inc. v. Florida
state does not, through
littoral owners had rights to future accretions, nor that contact with
Dep’t of
beach restoration project,
water is superior to state’s right to fill in its submerged land. Four justices
Environmental
effect facial taking of
nonetheless venture that “judicial taking” concept is sound. That is,
Protection, 560
beachfront property
Takings Clause applies to judicial branch just as to other branches; hence
U.S. 702 (2010)
owners’ littoral rights of
if a court declares “that what was once an established right of private
accretion and direct
property no longer exists, it has taken that property.” In other opinions,
contact with water.
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.
Lingle v.
State statute limiting rent
No taking. Rule announced in Agins, infra page 10, 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 burdens a regulation imposes on property. Thus, physical taking,
stations owned by oil
total regulatory taking, and Penn Central partial regulatory takings tests
companies, in order to hold
(infra page 10) each aims to spot government actions that are
down retail gasoline prices.
“functionally equivalent” to a direct appropriation. In contrast,
“substantially advances” test focuses on regulation’s effectiveness, a due-
process-like inquiry. Moreover, assessing 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 compelling interest in providing legal services for the poor. As to
Washington, 538
lived deposits of title
whether there was a taking, a per se test like that in Loretto, infra page 9,
U.S. 216 (2003)
company’s clients’ funds to
seems appropriate, and we assume such a taking occurred. But there is
support legal services for
still no constitutional violation, since Takings Clause proscribes only
the poor—under Interest
takings without just compensation. IOLTA mandates government use of
on Lawyers’ Trust
interest only when it could generate no net funds for client, owing to
Accounts (IOLTA)
administrative costs. Thus, just compensation owed under Takings Clause
program.
is zero.
Verizon
FCC regulations under
Argument that historical costs should be used to avoid 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 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 historical-costs
based on forward-looking
interpretation is allowed.
cost methodology, rather
than historical costs.
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Takings Decisions of the U.S. Supreme Court: A Chronology

Case Action
attacked
Holding/rationale
Tahoe-Sierra
Building moratoria imposed
1981-1984 moratoria are not per se takings. 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) al owed 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, and
Dunes at
development plans after
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 6, is not appropriate takings test. It was
progressively lower
designed to address exactions on development permits, not, as here,
development caps.
denials of development.
Eastern
Federal statute requiring
Statute is unconstitutional as applied to Eastern. In opinion accompanying
Enterprises v.
company to fund health
judgment, four justices find taking because statute imposes severe
Apfel, 524 U.S.
benefits of miner who
retroactive liability on a limited class of parties that could not have
498 (1998)
worked for it decades
anticipated liability, and extent of liability is substantially disproportionate
earlier, where company left
to company’s experience in mining field. This points to taking under Penn

mining business before
Central test, infra page 10. Also, remedy for taking based on generalized
promise of lifetime benefits
monetary liability is invalidation rather than compensation, supporting
in collective bargaining
jurisdiction in district court.
agreements became explicit
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 fol owed. 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.
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Takings Decisions of the U.S. Supreme Court: A Chronology

Case Action
attacked
Holding/rationale
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 small
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.
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 al ow 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 7. 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
“degree of burden” taking criterion that Court announces here. Also,
burden of proof is on government to demonstrate “rough
proportionality.”
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 long-standing 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 9, 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 challenge 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’s
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.
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Case Action
attacked
Holding/rationale
United States v.
Statutory 1½% deduction
No taking. 1½% 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
infringement (here, the easement) would be a taking.
property.
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 9, 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.
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Takings Decisions of the U.S. Supreme Court: A Chronology

Case Action
attacked
Holding/rationale
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 United States.
Social Security
to end social security
Entrapment, 477
coverage of state and local
U.S. 41 (1986)
employees.
Connol y 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.
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 fol owing 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 9,
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 sell it (but loss
United States,
land for national park.
in market value from such action is not compensable).
467 U.S. 1 (1984)
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Takings Decisions of the U.S. Supreme Court: A Chronology

Case Action
attacked
Holding/rationale
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. Whereas 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
impact. In contrast, temporary physical invasions must submit to balancing
419 (1982)
payment of $1.
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.
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 chal enged 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 by the U.S. to make just compensation to the
Sioux.
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Takings Decisions of the U.S. Supreme Court: A Chronology

Case Action
attacked
Holding/rationale
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 substantial y 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 rationally 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.
United States v.
Municipalities’ entering into
Federal statute providing that allotted Indian lands may be “condemned”
Clarke, 445 U.S.
physical possession of land
under state law does not allow cities to take land by physical possession
253 (1980)
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.
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. Final y, 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 long-standing 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 federally
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 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
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 $1
performance of duty it is already owed. Hence, issue of whether
per day.
$1 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.
substantial y by government occupation.
Permian Basin Area
Federal determination of
The Constitution does not forbid area-wide rate determinations.
Rate Cases, 390
maximum producers’ rates
Also, recall that the “just and reasonable” rate standard of the
U.S. 747 (1968)
for interstate sale of natural
Natural Gas Act coincides with constitutional standards. Thus,
gas on an area, rather than
there is no constitutional objection if the Federal Power
individual producer, basis.
Commission, in setting rates, takes fully into account the various
interests that “just and reasonable” requires it to reconcile.
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 United States’
unenforceable.
exercising 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.
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Takings Decisions of the U.S. Supreme Court: A Chronology

Case Action
attacked
Holding/rationale
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.
United States v.
Maintaining river level at high Taking occurred. Government is not shielded from takings liability
Kansas City Life
water mark by federal lock
by its navigation servitude here; farm is above ordinary high water
Insurance Co., 339
and dam, raising water table
mark, which defines limit of servitude. Destruction of farm’s
U.S. 799 (1950)
on farm and thus destroying
agricultural value is taking under principle that destruction of
its agricultural value.
private land by flooding is taking. As with flooding, land was
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 United States to improve
Power Co., 324
upstream hydro-electric
navigation.
U.S. 499 (1945)
dam.
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.
Federal Power
Federal regulation of rates
By long-standing usage in the field of rate regulation, the lowest
Comm’n v. Natural
for interstate sale of natural
reasonable rate is one which is not confiscatory in the
Gas Pipeline Co. of
gas.
constitutional sense. It fol ows that the “just and reasonable”
America, 315 U.S.
standard for interstate gas rates in the Natural Gas Act “coincides
575 (1942)
with that of the Constitution.”
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.
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Takings Decisions of the U.S. Supreme Court: A Chronology

Case Action
attacked
Holding/rationale
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.
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 United
U.S. without compensation.
U.S. 103 (1935)
States, given 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.
Mullen 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 al 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.
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Takings Decisions of the U.S. Supreme Court: A Chronology

Case Action
attacked
Holding/rationale
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.
Vil age 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.
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 all 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.
Sanguinetti v.
Flooding of land between
No taking. Overflow must be direct result of government
United States, 264
river and slough, following
structure, and constitute a permanent invasion of land. These
U.S. 146 (1924)
construction of canal
conditions are not met here. The land was subject to same
connecting the two to divert
periodic overflows before canal; it was not shown that overflow
flood waters from slough to
was direct result of canal. And owner was not ousted, nor was
river.
customary use of land prevented.
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.
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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
instal ed 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.
John Horstmann
Construction of federal
No taking. To bind federal government, there must be implication
Co. v. United
irrigation project, which
of a contract to pay, but circumstances here rebut that implication.
States, 257 U.S.
raised groundwater and
The project’s consequences for the plaintiffs’ properties could not
138 (1921)
lake water, destroying
have been foreseen, given the “obscurity” of the movement of
value of plaintiffs’
percolating waters.
property.
Block v. Hirsh,
Statute al owing 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 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
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 17, 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.
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Takings Decisions of the U.S. Supreme Court: A Chronology

Case Action
attacked
Holding/rationale
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. Final y,
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)
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 sell
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.
92½%.
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.”
Greenleaf Johnson Demand by Secretary of
No taking. Though pier was built with state approval, state’s
Lumber Co. v.
War that portion of pier
authority is subordinate to federal navigation servitude. Where it
Garrison, 237 U.S.
outside redrawn pier line
applies to a body of water, as here, the servitude exonerates the
251 (1915)
be removed, even though
United States from takings liability when acting to promote
within pier line when built.
commerce and navigation.
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 congressional y 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 installed 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.
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Takings Decisions of the U.S. Supreme Court: A Chronology

Case Action
attacked
Holding/rationale
Lewis Blue Point
Federal
contractor’s
No taking. Under federal navigation servitude, property rights in
Oyster Cultivation
dredging of navigation
submerged land may be destroyed by dredging of channel in
Co. v. Briggs, 229
channel across submerged
interest of navigation without compensation. See also United States
U.S. 82 (1913)
lands leased for oyster
v. Chandler-Dunbar Co., 229 U.S. 63 (1913), addressing effect of
cultivation, destroying
navigation servitude on property rights in a direct condemnation
oysters
case decided the same day.
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
full 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.
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 yellow 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.
Union Bridge Co.
Order by Secretary of
No taking. U.S. actions under its navigation servitude are not
v. United States,
War that bridge be
takings but rather exercise of dominant government power to
204 U.S. 364
altered at owner’s
which riparian property has always been subject. Fact that bridge
(1907)
expense to eliminate
was lawfully constructed and did not obstruct navigation when built
obstruction to navigation
is immaterial.
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)
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Takings Decisions of the U.S. Supreme Court: A Chronology

Case Action
attacked
Holding/rationale
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.
Scranton v.
Pier
constructed
by
No taking. Congress’s power to regulate commerce, and therefore
Wheeler, 179 U.S.
United States in navigable
navigation, may be exercised without compensation. Riparian
141 (1900)
waters in aid of navigation,
owner’s right of access to navigable waters is subject to being
eliminating riparian
thwarted by government erection of structures on submerged land
owner’s access to
in front of property to improve navigation. Irrelevant whether title
navigable water
to submerged land on which pier was built was in state or private
riparian owner.
Norwood v.
Ordinance
assessing
Taking occurred. Special assessments to meet cost of public
Baker, 172 U.S.
landowner the costs to
improvements are justified on ground that property owner on
269 (1898)
condemn strip of his land
which they are imposed is specially benefitted by the improvement.
for road, including village’s
Stil , when such assessments are in substantial excess of those
expenses in connection
special benefits, they are, to the extent of such excess, a taking.
with condemnation.
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.
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.
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Takings Decisions of the U.S. Supreme Court: A Chronology

Case Action
attacked
Holding/rationale
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
in order to implicate Takings Clause. Serious interference with the
(13 Wall.) 166
continuously.
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
Wal .) 457 (1870)
even those entered into
v. Griswold, 75 U.S. (8 Wal .) 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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