Takings in the Early 20th Century

This week we return to our series on the development of the law of physical takings. After our discussions on the 14th Amendment and Chicago, Burlington & Quincy Railroad Corp. v. City of Chicago, we are fairly caught up to the beginning of the modern era of Supreme Court doctrine on physical takings.

Recall that after CB&Q RR v. Chicago, the Takings Clause of the Fifth Amendment was held to bind state and local governments (it was “incorporated” against the states via the 14th Amendment). In that case, the Court decided that “due process” required substantively just outcomes, not just observance of legalistic procedures. Since then, the main stream of the Court’s physical taking doctrine has concerned another question.

At this point, another reminder is due: The Fifth Amendment states, “nor shall private property be taken for public use, without just compensation.” That is, it states that no property can be taken by the government, except for public use (that is, it cannot take property for private use). Further, it states that when government must take property for public use, it must compensate the owner for the taken property. Thus, after CB&Q RR v. Chicago these precepts bind the states (and by extension, local governments) as well as the federal government.

The text of the Fifth Amendment is fairly straightforward (unless you ask a lawyer, of course). As a result, there has been relatively little litigation on the Fifth Amendment, compared to the sexier amendments – especially the First (people seem to get much more excited about free speech and religion than government confiscation of property – at least until someone threatens their property!). The mainstream of the Supreme Court’s Takings doctrine since 1897 has concerned the meaning of “public use” – yes, lawyers consider that contestable. That is, the Court has sought to define what sorts of things count as “public uses” for which property can be taken from individuals.

For much of American history, public use was understood to mean actual use by the public. Land could be taken for things such as public roads, bridges, schools – that is, things that the public actually uses. Eminent domain was later used to gain lands and easements for railroads, which were private but heavily regulated by government due to their being “affected with public interest.” Over time, governments pushed at the limits of what “public use” might mean. This development continues today, but we’ll start with the beginning of modern public use doctrine.

Rindge Company et al. v. County of Los Angeles

In this case the County of Los Angeles used eminent domain to acquire property from a number of individuals and corporations in order to build a highway. Several of these property owners sued the county, alleging that the taking unlawfully deprived them of their property in violation of the 14th Amendment (recall that because of the way incorporation works, alleged rights violations by state or local governments fall under the 14th Amendment).

Justice Sanford, writing for the Court, argued that “The nature of a use, whether public or private, is ultimately a judicial question. However, the determination of this question is influenced by local conditions.” Still the Supreme Court held that “a taking of property for a highway is a taking for public use has been universally recognized, from time immemorial” so consideration of local conditions in this case is not terribly pressing. The owners in fact concede that taking for a genuine highway is a public use. Their argument is that the highway in question is not an actual highway, but rather a segment that does not constitute a road of necessity or convenience for the general public (that is, they are arguing that the road doesn’t really connect two places in the conventional sense). Importantly though, the Court held that “It is not essential that the entire community, nor even any considerable portion, should directly enjoy or participate in any improvement in order to constitute a public use.” That is, the Court held that entire public does not have to use the road (or any other public work) to satisfy the public use requirement, and implies that the work has only to be open to the public for their use. And further, since roads are frequently built in pieces, the seemingly incomplete nature of the road to be built does not render the taking invalid.

Very importantly, the Court also discusses the necessity of any given taking. Sutherland writes “The necessity for appropriating private property for public use is not a judicial question. This power resides in the legislature, and may either be exercised by the legislature or delegated by it to public officers.” That is, the Court will not second guess a legislatures’ decision to use eminent domain as opposed to some other theoretical method of obtaining property. [Put differently, the Court will not hear cases in which individuals allege that it is inappropriate to use eminent domain because some other less injurious method was available to the government.]

In summary, the Supreme Court here held that the determination of Public Use is a judicial question, but that Public Necessity is a legislative question. Thus, future challenges to uses of eminent domain will center on the uses to which legislatures want to put expropriated property. The case of Rindge Co. v. Los Angeles is important because it establishes in very clear language that the Public Use does not require that the entire public actually use that property to satisfy the Constitution. This holding will be very important in the future development of the Court’s Takings Doctrine.