Fifth Amendment

When the government takes PERSONAL PROPERTY for public use, the law calls it a taking and protects it under the EMINENT DOMAIN CLAUSE of the Fifth Amendment. The Eminent Domain Clause permits the government to appropriate private property, both real estate and personal belongings, for a public purpose so long as the owner receives just compensation, which is normally equated with the fair market value of the property. The Fifth Amendment attempts to strike a balance between the needs of the public and the property rights of the owner.

The power of eminent domain was first recognized in England in 1215. Article 39 of the Magna Charta read,"no free man shall be … disseised [deprived] of his freehold … except by the lawful judgment of his peers, or by the law of the land." No compensation was awarded to owners whose property was taken by the government for public use. Instead, English law merely required that the government obtain ownership of private property through existing legal channels, such as parliamentary legislation. This principle was followed in England for several centuries, and was later adopted by the American colonies.

Uncompensated takings of private property by colonial governments generally involved unimproved land (i.e., land that had not been built on). Colonial governments often appropriated private land to build roads and bridges in order to develop America's frontiers. During the American Revolution, the power of eminent domain was used to seize the land of colonists who were loyal to Great Britain, and to obtain various goods for military consumption. Compensation was rarely given to individual owners who were deprived of their property by colonial governments because making personal sacrifices for the common good, including forfeiting personal property, was considered an essential duty of every colonist.

Not everyone in the colonies believed that personal property interests should always be sacrificed for the greater good of society. Many colonists expressed distress over legislatures that were abusing their power of eminent domain. New York, for example, regularly failed to recognize title to real estate in its colony that was held by residents of Vermont. Other colonies also discriminated in favor of their own residents, and against persons whose patriotism was questionable during the Revolution. It was in this context that the Eminent Domain Clause of the Fifth Amendment was drafted.

During the twentieth century, the U.S. Supreme Court has enlarged the protection against uncompensated takings of private property by state and federal governments. The Eminent Domain Clause has been interpreted to protect not only owners whose property is physically taken by the government, but also owners whose property value is diminished as a result of government activity. Thus, compensable takings under the Fifth Amendment result from ZONING ordinances that deny property owners an economically viable use of their land (Agins v. City of Tiburon, 447 U.S. 255, 100 S. Ct. 2138, 65 L. Ed. 2d 106 [1980]), environmental regulations that require the government to occupy an owner's land in order to monitor groundwater wells (Hendler v. United States, 952 F.2d 1364 [Fed. Cir. 1991], land-use regulations that curtail mining operations (Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S. Ct. 158, 67 L. Ed. 322[1992]), and government-owned airports that lower property values in adjacent neighborhoods (United States v. Causby, 328 U.S. 256, 66S. Ct. 1062, 90 L. Ed. 1206 [1946]).

The U.S. Supreme Court, in Palazzolo v. Rhode Island, 533 U.S. 606, 121 S. Ct. 2448, 150L. Ed.2d 592 (2001), declared that property owners may file lawsuits without filing additional permit applications. Most importantly, the Court overturned a ruling that barred property owners from filing suit if they took possession of the property after the environmental regulations had been enacted. It made no sense to allow a state to avoid suit simply because of a transfer of legal title to the property. Thus, the state "would be allowed, in effect, to put an expiration date on the Takings Clause. This ought not to be the rule. Future generations, too, have a right to challenge unreasonable limitations on the use and value of land."