Two Conditions, Twelve Words
Eminent domain is the government's power to take private property. The Constitution does not forbid it; it conditions it. The Fifth Amendment requires the taking to be for "public use" and requires "just compensation" in return, and the Fourteenth Amendment is the reason that requirement binds cities and states, not just the federal government. This timeline traces how that framework came together, from 1791 to the present.
Ratified December 15, 1791, as part of the Bill of Rights, the Fifth Amendment ends with a single sentence now known as the Takings Clause: "nor shall private property be taken for public use, without just compensation." It was a direct response to the Revolutionary-era experience of British and even American forces seizing colonists' property, food, horses, and buildings for military use with little or no payment.
Unlike most of the rest of the Fifth Amendment, which protects people accused of crimes, the Takings Clause does not forbid the government from taking private property outright. It permits the practice, called eminent domain or condemnation, but attaches two conditions: the taking must be for a "public use," and the owner must receive "just compensation," generally understood as the property's fair market value.
For most of the nation's first century, the clause applied only to the federal government, not to states or cities, which is why the story of how it came to restrain state and local governments too is itself part of the constitutional history of eminent domain, covered later in this timeline.
The clause's brevity is deliberate but has also made it one of the most litigated twelve-word phrases in the Constitution, since neither "public use" nor "just compensation" is defined in the text, leaving both terms to be worked out case by case for more than two centuries since.
John Barron owned a profitable wharf in Baltimore harbor. City street construction diverted sand and debris into the harbor, silting up the water around his wharf so badly it became useless for large ships, destroying most of its value. Barron sued the city, arguing Baltimore had taken his property without the just compensation the Fifth Amendment required.
Chief Justice John Marshall, writing for a unanimous Supreme Court, ruled that the Bill of Rights, including the Fifth Amendment's Takings Clause, restrained only the federal government, not state or local governments, because it had been adopted specifically to limit the new national government the states feared, not to limit the states themselves.
Barron lost his case and received no federal constitutional remedy, since the Fifth Amendment simply did not apply to what Baltimore, a city government, had done to his property. Any protection against state and local takings would have to come from a state's own constitution or statutes, if one existed at all, rather than the federal Constitution.
This gap, no federal protection at all against state and local condemnation, remained the law for more than sixty years, until the Fourteenth Amendment's ratification began to change it.
The Fourteenth Amendment, ratified in 1868 after the Civil War, included a Due Process Clause forbidding any state from depriving "any person of life, liberty, or property, without due process of law." For decades after ratification, it remained unclear whether this new clause quietly absorbed, or "incorporated," any of the specific protections in the original Bill of Rights, including the Fifth Amendment's just-compensation requirement, and applied them to the states for the first time.
In Chicago, Burlington & Quincy Railroad Co. v. City of Chicago (1897), the railroad argued Chicago had taken a strip of its land for a street without paying adequate compensation, in violation of the Fourteenth Amendment's Due Process Clause. The Supreme Court agreed, holding that a state's taking of private property without just compensation is a deprivation of property without due process of law, effectively applying the Fifth Amendment's compensation requirement to state and local governments through the Fourteenth Amendment for the first time.
The ruling reversed the practical effect of Barron v. Baltimore for takings specifically, decades before the Supreme Court began applying most other Bill of Rights protections, freedom of speech, the right to counsel, the exclusionary rule, to the states in the 20th century through the same incorporation process.
Today, this is why nearly every eminent domain case that actually reaches property owners, condemnations by cities, counties, redevelopment agencies, and state highway departments, is litigated as a Fifth and Fourteenth Amendment case together: the Fifth Amendment supplies the substantive right, and the Fourteenth Amendment is the legal mechanism that makes that right binding on state and local governments in the first place.
Before 1931, the federal government generally had to complete a full condemnation lawsuit, including a final determination of just compensation, before it could take title to or possession of condemned land, a process that could take years and delay urgent public projects.
The Federal Declaration of Taking Act of 1931 changed that by letting the federal government file a "declaration of taking," deposit its own good-faith estimate of just compensation with the court, and take immediate title and possession of the property, while the property owner's lawsuit over the final, true amount of compensation continues afterward, a process commonly called a "quick take."
Most states have since adopted similar quick-take statutes for their own condemnation proceedings, meaning in the majority of eminent domain cases today, a property owner loses possession of their land well before any court has finally decided how much they are actually owed for it, litigating that amount, sometimes for years, only after the government already has the property.
Quick-take procedures speed up public projects considerably, but they have also drawn criticism from property-rights advocates, since an owner can be displaced immediately based on a government-set estimate that may turn out, after years of litigation, to have significantly undervalued what was actually owed.
Before 1970, a person or business displaced by a federally funded project, a highway, an urban renewal area, a dam, was generally entitled only to the fair market value of the real estate itself, with no legal right to help covering moving costs, temporary housing, or the higher cost of comparable replacement property in a different neighborhood.
Congress passed the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, commonly called the URA, establishing uniform, mandatory nationwide standards for every federally funded acquisition: fair appraisal procedures, a genuine good-faith negotiation requirement before condemnation, and separate relocation payments covering moving expenses and, where needed, the difference between an owner's old mortgage payment and a comparable replacement home's cost.
The URA remains the primary federal legal framework governing eminent domain and relocation today, administered under detailed regulations in Part 24 of Title 49 of the Code of Federal Regulations, and most states have adopted parallel relocation-assistance requirements modeled closely on it for state and local condemnations.
The law arrived only after the most disruptive wave of 1950s and 1960s urban highway and renewal construction, the era of Berman v. Parker and the interstate system's urban displacement, had already taken place, meaning it protects people displaced by public projects today far better than it protected the hundreds of thousands displaced in the decades right before it existed.
When the Supreme Court ruled 5-4 in Kelo v. City of New London (2005) that economic development alone could justify condemning non-blighted homes for a private redevelopment plan, the decision triggered one of the fastest and broadest bipartisan legislative reactions to any Supreme Court ruling in modern history.
Within four years, 44 states and the federal government had passed some form of eminent domain reform law, according to tracking by the Institute for Justice, ranging from constitutional amendments flatly barring "economic development" as a public use, to narrower statutory changes restricting blight findings, requiring heightened compensation, or adding new procedural protections for property owners.
The reforms varied enormously in strength. Some states, including Michigan through County of Wayne v. Hathcock and Arizona through its 2006 Proposition 207 ballot measure, adopted genuinely strong protections; other states passed largely symbolic laws that left broad blight and redevelopment authority intact, meaning the real-world reach of eminent domain for private redevelopment still differs enormously by state today, even though the underlying federal constitutional ruling in Kelo itself was never overturned.
New York was among the states that made only limited changes, a fact directly relevant to how New York City approached expanding public grocery access in recent years without resorting to condemning any existing private business, covered later on this page.
For over three decades, a 1985 precedent, Williamson County Regional Planning Commission v. Hamilton Bank, had required property owners to first pursue a takings claim through state court before they could ever bring it in federal court, but a separate legal doctrine then often barred the same claim from being relitigated in federal court once a state court had already ruled on it, a procedural trap that left many owners with no real federal forum for their claims at all.
In Knick v. Township of Scott (2019), the Supreme Court overruled Williamson County 5-4, holding that a Fifth Amendment taking occurs, and the constitutional right to compensation exists, at the moment the government takes the property, so an owner may sue in federal court immediately, without first being forced through state court.
The ruling did not change what counts as a taking or how compensation is calculated; it changed only where and when a property owner can seek a remedy, restoring direct federal court access that property-rights advocates had sought to recover for more than 30 years.
Knick is the most recent major structural change to eminent domain law and rounds out the modern legal landscape described throughout this page: a Fifth Amendment right, incorporated against the states by the Fourteenth Amendment since 1897, protected by federal relocation and quick-take statutes since the 20th century, reshaped by dozens of state reforms since Kelo, and enforceable directly in federal court since 2019.
This Southwest Washington, D.C. neighborhood, photographed in 1937, was almost entirely demolished under the redevelopment plan the Supreme Court upheld in Berman v. Parker (1954), covered in the Property Owners Who Lost tab.
Where the Fourth Amendment Fits In
The Fourth Amendment, ratified alongside the Fifth in 1791, protects "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." It shares the same underlying constitutional value as the Takings Clause, security in one's property against arbitrary government interference, but it operates through an entirely different legal doctrine, one built around criminal investigations, warrants, and probable cause, not around condemning land for a public project.
The two amendments intersect at one specific, practical point: before formally condemning a property, government appraisers or engineers often need to enter the land to survey it, take soil samples, or assess its condition. Because that entry happens before any condemnation lawsuit has been filed, many states require either the owner's consent or a court order authorizing entry, echoing the Fourth Amendment's own consent-or-warrant framework even though the entry itself is usually governed by a state's own condemnation statute rather than the Fourth Amendment directly.
It is worth distinguishing eminent domain clearly from civil asset forfeiture, a separate and more controversial government power that lets law enforcement seize cash, vehicles, or other property suspected of being connected to a crime, sometimes without ever charging the owner. Forfeiture raises its own serious Fourth and Eighth Amendment concerns, but it is a different constitutional doctrine from eminent domain: forfeiture claims the property was itself connected to wrongdoing, while eminent domain compensates an owner precisely because their property was not accused of anything at all.
20 Cases Where the Owner Kept the Property
These cases share a common thread: a court found the government's taking was not truly for public use, or that a regulation had gone far enough to require compensation the government refused to pay. Some are U.S. Supreme Court landmarks; several are state supreme court rulings, a reminder that a state's own constitution can protect property owners more strongly than the federal Fifth Amendment does. Listed chronologically, 1922 to 2021.
Pennsylvania Coal Company had sold surface rights to land in Scranton, Pennsylvania, in the 19th century while explicitly retaining the right to mine the coal beneath, including the right to cause surface subsidence. In 1921 Pennsylvania passed the Kohler Act, which barred coal mining that caused subsidence damage to any structure used as a human habitation, effectively stripping the company of the mining rights it had reserved by contract, without paying compensation.
Writing for the Court, Justice Oliver Wendell Holmes Jr. ruled 8-1 that the Kohler Act went "too far" and amounted to an unconstitutional taking of the company's property interest in the coal, even though the government had not physically occupied or seized anything. Holmes wrote the now-famous line that while property may be regulated to a certain extent, "if regulation goes too far it will be recognized as a taking."
The decision created the doctrine of "regulatory takings," meaning a law or regulation, not just a physical seizure, can trigger the Fifth Amendment's just-compensation requirement if it destroys too much of a property's value or use. Every regulatory-takings case since, including Penn Central, Lucas, and Nollan, traces its lineage back to Mahon.
Justice Louis Brandeis dissented, arguing the law was a valid public-safety regulation akin to a nuisance restriction and that the company still retained substantial value in its coal. That disagreement between Holmes's "diminution in value" test and Brandeis's more deferential framing still structures takings doctrine today.
Thomas Lee Causby ran a chicken farm near Greensboro, North Carolina, and in 1942 the Army and Navy began flying heavy bombers directly over his land at altitudes as low as 83 feet on approach to a nearby airfield. The noise and glare reportedly killed roughly 150 of his chickens, who flew into walls in panic, and made the farmhouse nearly uninhabitable.
Causby sued for compensation without the government ever filing a condemnation action or claiming his land at all. The Supreme Court, in an opinion by Justice William O. Douglas, ruled that the government's low, frequent overflights amounted to a taking of an easement in the airspace directly above the property, since a landowner's rights extend only as far as needed for the practical use and enjoyment of the land below.
The Court sent the case back to determine the precise scope of the easement and the compensation owed, but the constitutional holding stood: the government cannot use publicly owned airspace to functionally destroy the usefulness of private land below it without paying for the privilege. Causby kept his farm; the government simply had to pay for what it was using.
Causby remains the foundational case for airport-noise and low-altitude-overflight takings claims and is still cited in modern disputes involving drone operations and low-altitude government surveillance flights over private property.
The Kuapa Pond, a shallow lagoon on Oahu, Hawaii, had been privately owned and used for fish farming for generations. Kaiser Aetna, a developer, spent millions of dollars dredging and improving the pond to connect it to the ocean and turn it into a private marina for the Hawaii Kai residential community, obtaining an Army Corps of Engineers permit to do the work.
Once the pond was connected to navigable water, the federal government argued the pond had become a "navigable water of the United States" and that the public therefore had a right to enter and use it freely, without compensating the developer for that new public access right.
The Supreme Court disagreed, ruling that requiring the developer to open its improved, previously private pond to free public access was a physical taking requiring just compensation, since the government was not merely regulating use but compelling a permanent physical invasion of what had been exclusively private property. The Kuapa Pond marina remained a private facility.
The case established that even when the government has a legitimate regulatory interest, such as protecting navigation, it cannot convert that interest into a free right of physical public access to private property without paying for it, a principle later extended in cases like Nollan and Dolan.
Jean Loretto owned an apartment building in Manhattan. A 1973 New York law required landlords to permit cable television companies to install cable boxes and wiring on their buildings, and Teleprompter installed a cable box and wires on Loretto's roof and exterior wall without asking permission or offering compensation, as the statute allowed.
New York argued the installation was minor, roughly one and a half cubic feet of equipment, and that the law reasonably regulated the use of the property in the public interest of expanding television access. The Supreme Court disagreed, holding 6-3 that any permanent physical occupation of property authorized by government, no matter how small, is a taking requiring compensation, regardless of the public benefit it serves.
The Court distinguished physical-occupation takings, which are automatic and do not depend on weighing costs and benefits, from other regulatory takings that require a more flexible, case-by-case analysis. Loretto did not lose her building or the cable equipment's physical presence, but she won the right to be paid for it.
The case is still the leading precedent for "per se" physical-taking claims, and its reasoning was extended decades later in Cedar Point Nursery v. Hassid (2021) to strike down a California regulation granting union organizers periodic access to agricultural property.
First English Evangelical Lutheran Church owned a camp for disabled children in a canyon along Mill Creek in the Angeles National Forest. After a 1978 flood destroyed most of the camp's buildings, Los Angeles County adopted an ordinance temporarily barring any construction in the flood zone while it studied the danger, effectively preventing the church from rebuilding for several years.
The church sued for compensation for the period during which it could not use its land, but California courts had held that a property owner's only remedy for an unconstitutional regulation was to have the regulation invalidated going forward, not to collect money damages for the time it was in effect. The Supreme Court reversed, ruling 6-3 that "temporary" regulatory takings, ones that are later withdrawn or invalidated, still require compensation for the period the taking was in effect.
Chief Justice William Rehnquist wrote that invalidating a bad regulation alone does not make a property owner whole for lost use of their land in the meantime, comparing it to a physical taking the government later decides to return: the owner is still owed rent for the time it was occupied.
The ruling reshaped takings litigation strategy nationwide by making local governments financially responsible for over-broad temporary moratoriums and permit denials, not just those that are eventually made permanent.
James and Marilyn Nollan owned a small, dilapidated beachfront bungalow in Ventura County, California, and applied for a permit to demolish it and build a larger house. The California Coastal Commission agreed to grant the permit only if the Nollans deeded the public a permanent easement to walk across the dry sand portion of their beachfront lot, connecting two public beaches on either side.
The Commission argued the new, larger house would block ocean views and increase the "psychological barrier" to public beach access, justifying the condition. The Supreme Court, in an opinion by Justice Antonin Scalia, ruled 5-4 that there was no logical connection, or "essential nexus," between the stated problem, blocked visual access, and the demanded remedy, a physical walking easement, and that a permit condition unrelated to the actual impact of the project is an unconstitutional taking.
The Nollans were allowed to build their house without granting the easement. The case established that government cannot simply extract property rights as the price of a permit unless the exaction is closely tied to a problem the project itself actually causes.
Nollan, paired with Dolan v. City of Tigard seven years later, created the two-part "nexus and rough proportionality" test that still governs land-use permit conditions across the country today.
David Lucas bought two residential lots on the Isle of Palms, South Carolina, in 1986, intending to build houses like those on neighboring lots. In 1988, South Carolina passed the Beachfront Management Act, a coastal-erosion law that barred any permanent habitable structures on Lucas's lots at all, rendering them legally unbuildable.
Lucas sued, arguing the law had destroyed 100 percent of his lots' economic value. The Supreme Court, in an opinion by Justice Scalia, ruled that when a regulation strips property of all economically beneficial use, it is a categorical, automatic taking requiring compensation, regardless of how important the government's environmental justification is, unless the restricted use would have been prohibited anyway under background principles of state nuisance or property law.
The case sent the dispute back for further proceedings, and South Carolina ultimately settled by purchasing Lucas's lots outright for roughly 1.5 million dollars rather than litigate further, later reselling them for private development, which became a symbol to critics of the tension between environmental regulation and property rights.
Lucas created the "total takings" rule, the second of the Supreme Court's two categorical, automatic takings tests alongside Loretto's physical-occupation rule, both of which apply without the flexible case-by-case balancing used in most other takings claims.
Florence Dolan owned a plumbing and electric supply store in Tigard, Oregon, and applied for a permit to expand the store and pave its parking lot. The city agreed to approve the permit only if Dolan dedicated a strip of her land along a creek for a public greenway and bike path, citing flood control and traffic congestion as justifications.
The Oregon Supreme Court upheld the condition, but the U.S. Supreme Court reversed 5-4, holding that even when a permit condition is logically connected to a project's impact, satisfying Nollan's "nexus" test, the government must also show the size and scope of what it demands is roughly proportional to the actual impact of the specific development, a new requirement the Court called "rough proportionality."
The Court found Tigard had not shown why the public needed to physically access and use Dolan's greenway strip, as opposed to simply keeping it undeveloped for flood control, and struck the condition down. Dolan was allowed to expand her store without giving up the land.
Dolan is taught alongside Nollan as the modern two-step test for permit exactions and remains one of the most frequently cited property-rights cases in land-use litigation nationwide.
Vera Coking had lived in and operated a small boarding house on the Atlantic City boardwalk since 1961. In the 1990s, the Casino Reinvestment Development Authority, a state agency, sought to condemn her home and two neighboring properties to clear a lot for a limousine parking garage serving Donald Trump's adjacent Trump Plaza casino.
The agency offered Coking roughly 251,000 dollars, far below what she believed her property was worth, and when she refused to sell, it moved to take the property through eminent domain, arguing the parking garage served the "public purpose" of supporting casino-district redevelopment and tax revenue.
Representing Coking with help from the Institute for Justice, her attorneys argued the taking existed only to benefit a private casino operator, not the public, and a New Jersey Superior Court judge agreed, blocking the condemnation and allowing Coking to keep her home.
The case became a national symbol of eminent-domain abuse years before Kelo v. New London and was widely cited by property-rights advocates during the legislative backlash that followed Kelo; Coking lived in the boarding house for several more years before eventually selling it voluntarily.
The Southwestern Illinois Development Authority (SWIDA), a local economic development agency, sought to condemn land owned by National City Environmental, a metal recycling business, in order to hand it over to Gateway International Motorsports Corporation, a private racetrack, for use as an overflow parking lot.
SWIDA argued the taking served a public purpose because the racetrack generated tax revenue, tourism, and jobs for the region. The Illinois Supreme Court disagreed, ruling that condemning one private business's land purely to give it to a different private business for parking, with no plan or public control over how the land would actually be used, was not a valid public use under the Illinois Constitution.
National City Environmental kept its property, and the ruling was notable for coming three years before Kelo, showing that some state courts were already pushing back against expansive "economic development" takings even as the U.S. Supreme Court was about to bless the practice under the federal Constitution.
The decision is frequently cited as proof that state constitutions can and do provide stronger property-rights protection than the federal Fifth Amendment, since states remain free to interpret their own "public use" clauses more narrowly than the U.S. Supreme Court interprets the federal one.
Cottonwood Christian Center, a large evangelical church in Cypress, California, purchased an 18-acre parcel to build a new worship campus after years of searching for land. The City of Cypress, which wanted the same parcel for a Costco-anchored retail development that would generate sales tax revenue a tax-exempt church could not, began condemnation proceedings to take the land from the church.
The church sued in federal court, arguing the taking violated both the Fifth Amendment's public-use requirement and the Religious Land Use and Institutionalized Persons Act (RLUIPA), a federal law barring land-use regulations that substantially burden religious exercise without a compelling justification.
The federal district court granted the church a preliminary injunction blocking the condemnation, finding the city's own actions, prioritizing a taxable retailer over an existing land purchase by a religious congregation, raised serious questions under RLUIPA. Facing an unfavorable ruling, Cypress ultimately negotiated a settlement, and Cottonwood built its church elsewhere in the city.
The case is a frequently cited example of RLUIPA operating alongside the Takings Clause to protect religious property owners specifically from being condemned in favor of more tax-lucrative development.
The Pappas family owned commercial property on Fremont Street in downtown Las Vegas. The city's redevelopment agency sought to condemn it for a parking garage with ground-floor retail to serve the Fremont Street Experience, the covered pedestrian mall developed through a partnership between the city and downtown casino owners.
The family challenged the taking, arguing that it mainly benefited the private casino operators behind the Fremont Street Experience. A district court dismissed the agency's condemnation action, but the Nevada Supreme Court reversed that ruling in 2003 and upheld the taking.
The court held that the garage served a public purpose because it supported a redevelopment plan for a blighted downtown area, and that Nevada's redevelopment law allowed the agency to condemn property for that plan even though private businesses would also benefit.
The decision came two years before Kelo v. City of New London reached a similar result nationally. Nevada voters then approved Question 2, the People's Initiative to Stop the Taking of Our Land, in 2006 and 2008, amending the state constitution to restrict takings that transfer property to private parties.
Randy Bailey owned Bailey's Brake Service, a small auto repair shop he had run for over 20 years in downtown Mesa, Arizona. The city sought to condemn his shop and hand the land to a neighboring hardware store owner, Ellman Companies, so the store could expand and add parking, arguing the redevelopment would generate more sales tax revenue than Bailey's repair shop did.
With help from the Institute for Justice, Bailey sued, arguing that transferring his property directly to a named private competitor for that competitor's private expansion was not a public use under any reasonable definition, regardless of the tax-revenue argument. The Arizona Court of Appeals agreed, ruling the taking unconstitutional under the Arizona Constitution's public-use clause because the primary beneficiary was a private business, not the public.
Bailey kept his shop and continued operating it in Mesa. The case, decided two years before Kelo v. New London, became one of the most cited state-court rebukes of "economic development" takings and helped fuel the wave of state legislative reform that followed Kelo nationwide.
Arizona voters later went further, passing a 2006 ballot measure, Proposition 207, that both restricted economic-development takings and required compensation for many regulatory takings, one of the strongest state-level property-rights reforms enacted after Kelo.
Wayne County, Michigan, sought to condemn roughly 1,300 acres of land near Detroit Metropolitan Airport, including property owned by Edward Hathcock and other landowners, to build a large "business and technology park" it argued would create jobs and diversify the regional economy.
The county relied heavily on Poletown Neighborhood Council v. City of Detroit, a 1981 Michigan Supreme Court decision that had allowed the city to condemn an entire neighborhood for a General Motors plant on similar economic-development reasoning. In Hathcock, the Michigan Supreme Court took the unusual step of explicitly overruling its own Poletown precedent, unanimously, calling it a "radical and unabashed departure" from the Michigan Constitution's public-use requirement.
The court held that speculative economic benefits, jobs and tax revenue that might follow from a project, were not a sufficient public use to justify condemning private land and handing it to another private developer, and it laid out a narrower test for when private-to-private transfers can qualify as public use, largely limited to cases involving genuine public necessity or facilities.
Hathcock, decided the year before Kelo, is often cited as the case that should have persuaded the U.S. Supreme Court to rule the same way; instead, the U.S. Supreme Court went the opposite direction in Kelo, making Michigan's state-constitutional protection stronger than the federal one for its residents going forward.
The City of Norwood, an inner-ring suburb of Cincinnati, sought to condemn a working-class neighborhood, including the homes of Carl and Joy Gamble and Joe Horney, to clear the way for a mixed-use retail and office development anchored by a private developer, after declaring the area "deteriorating," a term short of the traditional legal standard of "blight."
The homeowners refused to sell and fought the condemnation through the Ohio courts. The Ohio Supreme Court ruled unanimously against the city, holding that "deteriorating area," an undefined, highly subjective standard that could be applied to almost any older neighborhood, was unconstitutionally vague and could not by itself justify a taking, and further held that economic benefit alone, without genuine blight, is not a sufficient public use under the Ohio Constitution.
The Gambles and Horney kept their homes, and the ruling effectively barred Ohio municipalities from using loosely defined "deterioration" findings to condemn stable, non-blighted neighborhoods for private redevelopment going forward.
The decision, issued the year after Kelo, was one of the most closely watched post-Kelo state rulings nationally and is frequently cited as a model for how a state supreme court can use its own constitution to impose real limits that Kelo declined to impose under the federal one.
Hawaii County sought to condemn a strip of agricultural land owned by the Coupe family to build a road connecting a private residential subdivision to a state highway, arguing the road served a public purpose because it would eventually be dedicated to public use and improve emergency-vehicle access.
The Coupe family fought the condemnation, arguing the road's true and primary purpose was to benefit the subdivision's private developer by giving the development a second access point required for its building permits, with any public benefit being secondary and incidental.
In 2008 the Hawaii Supreme Court held that the family was entitled to argue that the county's stated public purpose was a pretext for a private benefit, and sent the case back for the trial court to examine that claim.
After the remand, the court in 2010 affirmed the condemnation, finding that the road served a genuine public purpose. The case is often cited for its willingness to look past a government's stated rationale to ask who actually benefits from a taking, even though the county ultimately prevailed.
Marvin and Laura Horne, California raisin farmers, refused to comply with a Depression-era federal marketing order that required raisin growers to physically hand over a portion of their crop, in some years close to half, to a government-run "reserve" pool with little or no compensation, ostensibly to stabilize raisin prices nationally.
When the government fined the Hornes for failing to turn over their raisins, they argued the reserve requirement was an unconstitutional physical taking of their property, not merely a regulation of how they could sell it. The Supreme Court agreed 8-1, holding that a government demand to physically hand over a portion of a farmer's crop is exactly the kind of straightforward physical taking Loretto describes, regardless of whether it comes wrapped in a complex agricultural marketing program.
The Court also rejected the government's argument that the Hornes could avoid the taking simply by not growing raisins at all, or that the "benefit" of participating in the regulated market was adequate compensation, holding that the government cannot make constitutional protection a voluntary condition of doing business in a regulated industry.
The Hornes kept their raisins and were relieved of the fines, and the decision effectively ended the raisin reserve program; it remains one of the clearest modern statements that property retains full constitutional protection even when the government frames its demand as a marketing or regulatory scheme rather than a traditional condemnation.
Rose Mary Knick owned a rural 90-acre property in Pennsylvania with a small family cemetery on it. Scott Township passed an ordinance requiring all cemeteries, including small private family plots, to be open to the public during daylight hours, and township officials entered Knick's land to confirm the graves existed, without a warrant or her consent.
When Knick sued in federal court, arguing the ordinance was an unconstitutional taking of her right to exclude others from her land, the lower courts dismissed her claim under a 1985 precedent, Williamson County Regional Planning Commission v. Hamilton Bank, which had required property owners to first exhaust state court remedies before bringing a federal takings claim, a rule that in practice often left owners with no federal forum at all.
The Supreme Court, in a 5-4 decision, overruled Williamson County and held that property owners may sue in federal court immediately once a taking occurs, without first being forced through state court, since the Fifth Amendment right to compensation exists at the moment of the taking itself.
Knick's case was sent back for further proceedings on the merits of her claim, but her procedural victory was the substantive one: property owners nationwide regained direct access to federal court for takings claims, reversing a rule that property-rights advocates had argued for over 30 years effectively closed the courthouse door on many legitimate claims.
A California labor regulation, dating to 1975, gave union organizers the right to enter agricultural employers' property for up to three hours a day, 120 days a year, to talk to farmworkers, without the employer's consent and without any compensation to the property owner. Cedar Point Nursery, a strawberry grower, and Fowler Packing Company challenged the rule after organizers entered Cedar Point's property before dawn to talk to workers through bullhorns.
The growers argued the access mandate was a physical taking under Loretto's per se rule, since it authorized a physical invasion of their property, while California argued it was merely a regulation of the employer-employee relationship, not a "true" occupation like a fixed cable box.
The Supreme Court ruled 6-3 for the growers, holding that a government-authorized right to physically invade property, even if temporary and limited to certain hours, is a per se physical taking requiring compensation, extending Loretto's rule beyond permanent installations to any regular, government-compelled physical intrusion.
The ruling was significant for labor and property law alike, since it narrowed the tools states can use to guarantee union organizers access to private agricultural land without paying growers for that access, and it clarified that "temporary but recurring" physical invasions are treated the same as permanent ones under the Takings Clause.
The Arkansas Game and Fish Commission owned the Dave Donaldson Black River Wildlife Management Area, a forested wildlife refuge. Starting in 1993, the U.S. Army Corps of Engineers repeatedly authorized extended deviations from its normal dam-release schedule upstream, causing recurring flooding during the tree-growing season that killed large stands of timber in the refuge over several years.
The Commission sued for compensation, but a federal appeals court ruled that only permanent flooding, not temporary, repeated flooding, could ever count as a taking. The Supreme Court unanimously reversed, holding that government-induced flooding, even when temporary, can be a taking if it is severe enough, weighing factors like duration, foreseeability, the character of the land, and the severity of the interference.
The Court declined to draw a bright-line rule exempting all temporary flooding from takings liability the way some other temporary-invasion doctrines do, sending the case back for a full factual analysis under that multi-factor test.
On remand, the Commission ultimately prevailed and recovered compensation for the loss of the flooded timberland; the case remains the leading precedent for temporary, recurring government-caused flooding claims, an increasingly relevant issue as climate-driven flood-control decisions affect more private and public land.
20 Cases Where the Government Prevailed
In these cases, courts sided with the government, upholding a taking or a regulation the property owner challenged. Some involve genuinely uncontroversial public projects, a park, a courthouse, a dam. Others, especially Berman, Poletown, Midkiff, and Kelo, are the cases most responsible for how broadly "public use" is defined today, and for the state-level backlash that followed. Listed chronologically, 1875 to 2017.
The federal government sought to condemn a parcel of land in downtown Cincinnati, Ohio, owned by Frederick Kohl and others, to build a federal post office and courthouse. The landowners challenged the condemnation, arguing the federal government had no independent constitutional power to exercise eminent domain within a state at all, and could only acquire land there through purchase or a state's own condemnation process on the federal government's behalf.
The Supreme Court rejected that argument, holding that the power of eminent domain is an inherent attribute of sovereignty that the federal government possesses independently within its own constitutional sphere, needing no separate grant of authority beyond the powers already given it, and that federal courts, not state courts, have jurisdiction over federal condemnation proceedings.
Kohl lost his challenge and the land was taken for the courthouse and post office, which was built as planned. The ruling is significant less for its facts than for permanently settling that the federal government's eminent domain power is direct and constitutional, not merely borrowed from the states.
Kohl remains the earliest major Supreme Court eminent domain precedent and is still cited whenever a federal condemnation's basic constitutional authority, as opposed to its "public use" justification, is questioned.
Congress authorized the condemnation of roughly 2,000 acres of privately owned land along Rock Creek in Washington, D.C., to create what became Rock Creek Park, one of the country's first large urban national parks. A group of affected landowners, including Shoemaker, challenged both the taking itself and the specific commission procedure Congress had created to determine compensation.
The Supreme Court upheld the condemnation, ruling that creating a public park for recreation and the preservation of natural scenery was unquestionably a valid public use, and that Congress had broad discretion both in deciding how much land a public project needs and in designing a fair valuation procedure, so long as it ultimately guaranteed just compensation.
The landowners lost their challenge, and Rock Creek Park was established largely as planned, remaining one of the oldest and largest urban parks administered by the National Park Service today.
The case is an early example of the Supreme Court giving strong deference to legislative judgments about what counts as a public use, particularly for parks, conservation, and other clearly noncommercial public purposes, deference that would later expand much further in Berman and Midkiff.
In arid Utah, Nash owned water rights and an irrigation ditch that ran across Clark's land. Nash sought to condemn a right-of-way to enlarge the existing private irrigation ditch so it could carry more water to irrigate his own farmland, relying on a Utah statute that allowed private landowners to condemn rights-of-way for irrigation improvements even though the beneficiary was another private farmer, not the government or the general public directly.
Clark argued that letting one private farmer condemn another private farmer's land for his own irrigation ditch could not possibly be a "public use" under any ordinary meaning of the term, since the benefit ran to Nash personally.
The Supreme Court upheld the taking anyway, reasoning that in arid Western states, irrigation was so essential to making land productive at all, and irrigation infrastructure so naturally became available to other nearby landowners over time, that a state could reasonably treat irrigation improvements as a public use even when a private party initiated and directly benefited from them.
Clark v. Nash is one of the earliest cases showing the Supreme Court willing to look past who directly benefits from a taking and instead ask whether the underlying activity serves an important regional public interest, reasoning later cases like Berman and Midkiff would apply far more broadly outside the water-rights context.
The Highland Boy Gold Mining Company, operating in the mountains of Utah, needed to build an aerial tramway to transport ore over difficult terrain from its mine to a smelter, and sought to condemn a right-of-way across land owned by Strickley to build it, relying on a Utah law permitting mining companies to condemn rights-of-way for tramways and similar mining infrastructure.
Strickley argued that condemning his land purely so a private mining corporation could move its own ore more efficiently for its own profit was not a public use in any meaningful sense.
The Supreme Court upheld the taking, reasoning, as it had the year before in Clark v. Nash, that mining was so fundamental to Utah's economy and mountainous terrain made transportation so difficult that facilitating mining infrastructure served a genuine public interest even when a single private company was the direct and primary beneficiary.
The case further entrenched the early-20th-century pattern of the Supreme Court deferring heavily to state legislative judgments about what counts as public use in resource-dependent Western states, a deference that made the doctrine progressively broader over the following decades.
May Rindge and her family owned the vast Rancho Malibu, roughly 13,000 acres along the Malibu coastline, and had fought for years to keep it a private, undeveloped ranch, going so far as to build her own private railroad and hire armed guards to block outsiders from crossing her land. Los Angeles County sought to condemn a coastal right-of-way through the ranch to complete a public highway connecting Malibu to the rest of the county, what eventually became the Pacific Coast Highway.
The Rindge family fought the condemnation all the way to the U.S. Supreme Court, arguing the county had other, less intrusive route options available and that the taking would destroy the privacy and character of their ranch.
The Supreme Court upheld the condemnation, ruling that building a coastal public road was self-evidently a public use, and that courts generally would not second-guess a government's chosen route so long as the underlying purpose, connecting communities by road, was legitimate.
The ruling effectively ended the Rindge family's decades-long effort to keep Malibu private, and the coast highway opened the area to the development that eventually made Malibu one of the most famous and expensive coastlines in the country.
Ambler Realty owned roughly 68 acres of undeveloped land in the Cleveland suburb of Euclid, Ohio, that it intended to sell for industrial use. The village adopted a comprehensive zoning ordinance dividing the town into residential, commercial, and industrial districts, which placed most of Ambler's land in a residential-only zone, sharply reducing its market value for the industrial buyers Ambler had been courting.
Ambler sued, arguing the zoning ordinance was not a true condemnation but functioned like one, destroying most of the land's economic value without paying compensation, and that broad, town-wide zoning exceeded any legitimate exercise of the government's police power.
The Supreme Court upheld the zoning ordinance 6-3, ruling that comprehensive land-use zoning, separating incompatible uses like factories and single-family homes, was a valid, non-compensable exercise of a municipality's general police power to protect public health, safety, and welfare, not a taking at all.
Euclid did not involve a physical condemnation, but it is foundational to understanding the limits property owners face outside the Takings Clause, since it established that a government can drastically restrict how land may be used through ordinary zoning without paying a cent, so long as the restriction is reasonably related to a legitimate public purpose, and it is why "Euclidean zoning" remains the standard term for conventional use-based zoning today.
Virginia's cedar rust law required the state entomologist to order the destruction, without compensation, of ornamental red cedar trees found to be infected with cedar rust, a fungus that was harmless to the cedars themselves but that spread to and could devastate nearby commercial apple orchards, one of Virginia's largest agricultural industries. Miller, who owned a large number of ornamental red cedars, was ordered to destroy them.
Miller sued, arguing the state was simply taking his healthy, valuable ornamental trees for the economic benefit of neighboring apple growers without paying him anything, and that if the state wanted to protect the orchards it should condemn and pay for the cedars rather than simply order them destroyed.
The Supreme Court ruled against Miller, holding that when a state faces a choice between two conflicting private property interests where both cannot be preserved, here cedars versus apple orchards, the legislature may reasonably choose to protect the more valuable public interest through its police power without paying compensation for the other, since eliminating a public nuisance-like danger is different from taking property for the state's own direct use.
Miller v. Schoene remains one of the starkest examples of a property owner losing valuable property outright, with no compensation at all, because courts characterized the action as a nuisance-abatement regulation rather than a taking, a distinction that continues to matter enormously in modern environmental and agricultural regulation cases.
The Tennessee Valley Authority, created in 1933 as part of the New Deal, sought to condemn land owned by Welch and others as part of building one of its many dam and reservoir projects to control flooding and generate electricity across the Tennessee Valley. The landowners challenged whether a court could review, and potentially second-guess, TVA's determination that condemning their specific parcels was actually necessary for the project.
The Supreme Court ruled that once Congress has authorized an agency like TVA to acquire land necessary for an authorized public project, the question of how much land is actually needed and which specific parcels to take is a matter for the agency's own judgment, not something federal courts will typically reweigh or override.
Welch and the other landowners lost their challenge, and the case became a key precedent establishing that courts give agencies very broad, largely unreviewable discretion over the "necessity" and scope of a condemnation once the underlying public purpose itself is valid.
The ruling helped enable the rapid, large-scale land acquisition that let TVA build dozens of dams across the Tennessee Valley over the following decades, transforming the region's electricity supply and flood control, while leaving individual landowners with essentially no way to contest whether their specific land, as opposed to some other parcel, truly had to be taken.
Congress authorized a large-scale redevelopment plan for a blighted 560-acre area of Southwest Washington, D.C., under the District of Columbia Redevelopment Act, which allowed the city to condemn an entire designated area, not just individual unsafe buildings, and transfer the land to private developers for reconstruction according to a comprehensive plan. Max Morris owned a department store within the project area that was not itself blighted or unsafe, and his estate, Berman was the executor, challenged the condemnation of his non-blighted property simply because it sat within the larger designated redevelopment zone.
The Supreme Court ruled unanimously for the District, holding that when an area as a whole is blighted, the government may condemn the entire area comprehensively, including individual parcels that are not themselves substandard, because piecemeal redevelopment would defeat the point of area-wide planning. Justice William O. Douglas wrote broadly that the concept of "public welfare," and therefore public use, was "broad and inclusive," extending well beyond literal use by the public to include making a community "beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled."
The project ultimately demolished roughly 4,800 structures across the neighborhood and displaced an estimated 23,000 residents, most of them Black families, many of whom received compensation far below what it cost to find comparable replacement housing elsewhere in a still-segregated housing market.
Berman v. Parker became the foundational precedent for nearly every broad "public purpose" and urban-renewal taking that followed for the next half-century, including Hawaii Housing Authority v. Midkiff (1984) and ultimately Kelo v. City of New London (2005), both of which quoted Berman's expansive language directly.
New York City's 1965 Landmarks Preservation Law designated Grand Central Terminal, owned by the Penn Central Transportation Company, as a protected historic landmark. Penn Central later proposed building a large office tower directly above the terminal to generate additional revenue, but the Landmarks Preservation Commission rejected both proposed designs as incompatible with the terminal's historic character, blocking construction entirely.
Penn Central sued, arguing the landmark law had taken the airspace development rights above the terminal without compensation, destroying a substantial part of the property's economic potential. The Supreme Court disagreed 6-3, adopting a flexible, multi-factor balancing test, weighing the regulation's economic impact, its interference with the owner's reasonable investment-backed expectations, and the character of the government action, rather than a bright-line rule.
The Court found Penn Central could still profitably operate the terminal as it always had, and that New York had also given Penn Central "transferable development rights" it could sell or use on other nearby properties to offset the loss, so no taking had occurred despite the real economic restriction.
Penn Central lost its case and never built its tower, but Grand Central Terminal itself was preserved as one of the most celebrated landmarks in New York City. The Penn Central balancing test remains the default framework courts apply to most regulatory-takings claims that do not fall into Loretto's physical-occupation category or Lucas's total-wipeout category.
A group of high school students set up a table at the privately owned PruneYard Shopping Center in Campbell, California, to gather signatures for a petition opposing a United Nations resolution. Mall security ordered them to leave, citing shopping-center policy against unauthorized solicitation, but the students sued, relying on a California Supreme Court ruling that the state constitution's free-speech protections required large shopping centers to allow reasonable free-expression activity on their property, unlike the more limited protection the federal First Amendment offers on private property.
PruneYard's owners argued that being forced to allow strangers to solicit signatures on their private property against the owners' wishes was a physical taking under the Fifth Amendment, since it compelled a form of occupation and interfered with the owners' right to exclude others.
The Supreme Court unanimously rejected that argument, ruling that requiring a shopping center, whose whole business model already invites the general public onto its property, to also tolerate limited, orderly free-expression activity was not a taking, since it did not destroy the property's economic value or the owner's primary use of it as a commercial mall.
PruneYard's owners lost, and the ruling stands for the principle that a state may grant its residents broader free-speech rights on quasi-public private property than the federal Constitution requires, without that expanded speech right itself becoming an unconstitutional taking of the property owner's rights.
Facing the threatened closure of two aging Detroit plants and the loss of thousands of manufacturing jobs, the City of Detroit struck a deal with General Motors: the city would assemble and clear an entire 465-acre neighborhood, known as Poletown for its historically Polish-American population, and hand the cleared land to GM to build a new Cadillac assembly plant, in exchange for GM's commitment to build in Detroit rather than relocate elsewhere.
The Poletown Neighborhood Council, representing residents who did not want to leave their homes, churches, and businesses, sued to block the condemnation, arguing that razing an entire stable neighborhood, roughly 1,400 homes, 140 businesses, and several churches, to benefit a single named private corporation was not a public use.
The Michigan Supreme Court ruled for the city, holding that the jobs and tax revenue the GM plant would generate constituted a sufficient public benefit to justify the taking, even though the direct and primary beneficiary was one private automaker. The neighborhood, including its churches and businesses, was almost entirely demolished, and roughly 4,200 residents were displaced.
Poletown became the most-cited symbol of "economic development" eminent domain abuse for the next two decades, and the Michigan Supreme Court itself formally overruled the decision in County of Wayne v. Hathcock in 2004, calling its own earlier reasoning a "radical departure" from the state constitution; by then, however, the GM plant had been built and the original neighborhood was already permanently gone.
By the early 1980s, a small number of large landowners, a legacy of the 19th-century Hawaiian land system, owned nearly half of all private land in Hawaii, with much of the rest leased long-term to homeowners who could never actually own the land under their own houses. The Hawaii legislature passed the Land Reform Act, authorizing the state to condemn land from these large landowners and resell it directly to the individual homeowner-lessees who already lived on it, in order to break up what it called an oligopoly in the state's land market.
Frank Midkiff and other large landowners challenged the law, arguing that condemning their land purely to transfer title to another private individual, the existing tenant, with no public ownership or public use of the land involved at any point, could not possibly be a public use under the Fifth Amendment.
The Supreme Court unanimously upheld the law, ruling, and quoting Berman v. Parker directly, that courts owe great deference to a legislature's judgment about what constitutes a public purpose, and that breaking up a land oligopoly to increase broad homeownership and correct a perceived market distortion was plainly within a state's police power, even though the land moved from one private owner directly to another.
The large landowners lost their properties under the program, and Midkiff became, alongside Berman, one of the two pillars Kelo v. New London relied on two decades later to justify economic-development takings; critics of Kelo have since argued Midkiff was a narrower ruling, tailored to Hawaii's unique land-monopoly history, that the Court stretched too far in Kelo's very different context.
Pennsylvania's 1966 Bituminous Mine Subsidence and Land Conservation Act required coal companies to leave a percentage of coal in the ground, unmined, to support the surface above certain structures, similar to the Kohler Act at issue in Pennsylvania Coal Co. v. Mahon (1922), a case the coal company had won. Coal companies challenged the newer law on essentially the same grounds Pennsylvania Coal had won on 65 years earlier.
The Supreme Court, 5-4, upheld the newer law and distinguished it from Mahon, reasoning that this statute was aimed at protecting broader public and environmental interests, including preventing subsidence damage that could threaten public safety and water supplies, rather than simply protecting individual private homeowners' surface rights as in Mahon, and that the companies had not shown the required coal-support percentage destroyed the value of their mining operations as a whole.
The coal companies lost, and the Court's willingness to reach essentially the opposite result from Mahon on similar facts, by framing the public interest differently and looking at total economic impact rather than the specific coal seam affected, made Keystone a frequently studied example of how much a takings case's outcome can depend on how broadly or narrowly a court defines the relevant property and public interest at stake.
Keystone remains a key teaching case precisely because it shows the tension in takings law between Mahon's rule that "too far" is a taking and Penn Central's flexible balancing approach, without ever fully resolving which framework should control when the two point in different directions.
Mobile home park owners in Escondido, California, challenged the city's rent-control ordinance, which limited how much they could raise rents on the land their tenants' mobile homes sat on, while tenants who owned their homes could sell them, and the buyer would simply step into the same low, rent-controlled lease. The park owners argued the ordinance effectively transferred most of the economic value of their land to their tenants and any future buyers of the mobile homes.
The owners initially framed their challenge as a physical-taking claim under Loretto, arguing the rent control effectively forced them to accept a permanent physical occupation of their land by their tenants at a below-market rate they could never escape. The Supreme Court disagreed, ruling that because the park owners had voluntarily rented their land to tenants in the first place, this was a regulation of the terms of an already-existing rental relationship, not a physical-occupation taking.
The Court noted the owners had not properly raised a Penn Central-style regulatory-takings argument in the lower courts, so it did not decide whether the rent-control ordinance might still be an unconstitutional taking under that different framework, leaving the door open but declining to rule on it.
The park owners lost their physical-taking claim, and Yee remains an important case for distinguishing takings claims that arise from a voluntary landlord-tenant relationship, evaluated under Penn Central, from those where the government itself compels an owner to accept an occupant it would not otherwise have to, evaluated under Loretto's stricter automatic rule.
To protect the exceptional clarity of Lake Tahoe's water from erosion and runoff caused by construction, the bi-state Tahoe Regional Planning Agency imposed two moratoriums, lasting a combined 32 months, that temporarily barred nearly all new development in the Lake Tahoe basin while it completed a comprehensive environmental land-use plan. A group of landowners who wanted to build homes during that period sued, arguing the moratorium was a categorical total taking under Lucas, since it eliminated 100 percent of the usable value of their land for that period.
The Supreme Court ruled 6-3 against the landowners, holding that Lucas's categorical "total taking" rule applies only when a regulation permanently eliminates all economic use of a property, and that a temporary moratorium, however complete its restriction while in effect, should instead be evaluated under Penn Central's flexible, multi-factor balancing test rather than Lucas's automatic rule.
Applying that balancing test, the Court found the 32-month moratorium reasonable given the complexity of the planning process and the extraordinary environmental value of Lake Tahoe's water clarity, warning that treating every temporary moratorium as an automatic taking would discourage governments from ever pausing development to plan carefully.
The landowners lost, and Tahoe-Sierra remains the leading precedent distinguishing merely "temporary" regulatory restrictions, which get flexible balancing, from truly "permanent" ones, which get Lucas's stricter categorical rule, a distinction that continues to matter enormously in moratorium and building-permit-freeze litigation nationwide.
The city of New London, Connecticut, approved a comprehensive redevelopment plan for its economically struggling Fort Trumbull neighborhood after Pfizer Pharmaceuticals announced it would build a large research facility nearby, hoping the plan would attract complementary private development, hotels, offices, and upscale housing, and generate new jobs and tax revenue for the city. Susette Kelo, who had renovated a small pink house with a water view, and several of her neighbors refused to sell, even though their homes were not blighted, and the city moved to condemn their properties for the broader redevelopment plan.
Kelo and her neighbors sued, arguing that transferring their homes to a private developer for a speculative economic-development project, rather than for a road, school, or other traditional public use, was not a public use under the Fifth Amendment, regardless of any incidental jobs or tax revenue it might eventually generate.
The Supreme Court ruled against Kelo 5-4, holding that economic development itself qualifies as a valid public purpose, consistent with Berman and Midkiff, and that courts should defer to a city's own comprehensive redevelopment plan rather than second-guess it property by property. Justice Sandra Day O'Connor's dissent warned the ruling meant "the specter of condemnation hangs over all property," since any home could now be taken and handed to whoever a government believed would put it to more profitable use.
Kelo lost her home, and in a widely noted twist, Pfizer itself closed its adjacent New London facility in 2009, and much of the condemned Fort Trumbull land sat undeveloped for years afterward. The ruling triggered an immediate, historic legislative backlash: within four years, 44 states and the federal government passed laws restricting the kind of economic-development taking Kelo had upheld, even though the Supreme Court's constitutional ruling itself was never overturned.
Bart Didden owned a commercial lot in Port Chester, New York, where he planned to build a CVS pharmacy, inside an area the village had already designated for redevelopment under a general urban-renewal plan. Gregory Wasser, the developer the village had put in charge of the project, approached Didden and allegedly offered him a choice: pay Wasser 800,000 dollars, or give Wasser a partnership interest in the pharmacy project, or Wasser would have the village condemn Didden's lot the very next day and hand it to Wasser instead.
When Didden refused, the village condemned his property the following day, exactly as Wasser had allegedly threatened, and transferred it to Wasser's own competing development. Didden sued, arguing the condemnation was not a legitimate public use at all but a pretextual, essentially extortionate transfer engineered for one private developer's direct financial benefit.
The Second Circuit ruled against Didden in a brief, unpublished decision, holding that because Didden's lot fell within a redevelopment area the village had already designated years earlier under Kelo's deferential public-use standard, the taking was valid regardless of Wasser's alleged conduct, and that Kelo left essentially no room for courts to examine a developer's private motives once an area-wide redevelopment plan exists.
The U.S. Supreme Court declined to hear a further appeal. Didden lost his lot to a developer who had allegedly threatened him directly, and the case became one of the most frequently cited examples by property-rights advocates of how far Kelo's deference could be stretched, since even blatant, well-documented private coercion was not enough to overcome it.
Forest City Ratner, a private developer, proposed the Atlantic Yards project in Brooklyn, a large mixed-use development anchored by a new arena, eventually the Barclays Center, that would become the home of the NBA's Nets. New York's state redevelopment agency designated the project site, which included homes and businesses Forest City Ratner did not yet own, as blighted, clearing the way to condemn the remaining properties and transfer them to the developer.
Daniel Goldstein and other residents who refused to sell challenged the blight designation, arguing it was manufactured after the fact to justify a project the state had already privately agreed to with the developer, rather than reflecting genuine pre-existing blight, and that using eminent domain to benefit one large private developer's arena and residential towers was not a public use.
The Second Circuit rejected the challenge, holding, consistent with Kelo, that courts owe extremely deferential review to a state agency's own blight and public-purpose findings, and that even a redevelopment plan negotiated closely with a private developer beforehand does not, by itself, make the resulting taking unconstitutional so long as some public benefits, jobs, an arena, affordable housing, are part of the stated plan.
Goldstein and the other holdout residents ultimately lost their homes; the Supreme Court again declined to hear a further appeal, and the Barclays Center opened in 2012. The case remains a leading example of how broadly state and local governments can define "blight" to support a condemnation, even in a rapidly gentrifying urban neighborhood with clearly viable, occupied housing.
The Murr family owned two adjacent riverfront lots along the St. Croix River in Wisconsin, one with a cabin on it and one left vacant, that had been in the family since the 1960s but had come under common ownership only decades later. A local zoning ordinance, adopted to protect the river's scenic character, barred the vacant lot from being sold or developed separately once it came under the same ownership as the adjacent lot, effectively merging the two for development purposes.
The family argued the ordinance was a total taking of the vacant lot under Lucas, since it could no longer be sold or built on as its own separate parcel, and that courts should evaluate the taking by looking only at that one lot in isolation, where the loss would appear complete.
The Supreme Court ruled 5-3 against the family, holding that courts must consider a range of factors, including the reasonable expectations set by state and local property law, the physical characteristics of the land, and its value as a combined unit, to decide what counts as "the relevant parcel" for a takings analysis, rather than always deferring to how an owner happens to have subdivided a deed on paper.
Applying that combined analysis, the Court found the two lots, considered together, retained substantial value and use, so no taking had occurred, and the family lost their claim; the ruling remains the leading precedent for "parcel as a whole" disputes, a recurring and often decisive issue in modern regulatory-takings litigation.
Interstate highway construction remains the largest single episode of eminent domain in American history, and courts consistently upheld it against property owners' challenges.
The Process, From Notice to Just Compensation
Nearly every condemnation follows the same basic sequence: a public-necessity finding, an appraisal, a good-faith purchase offer, and, only if that fails, a court case over the property's fair market value. What differs enormously is what the taking is actually for, and how much legal risk that specific category carries today.
Every eminent domain case follows roughly the same sequence, whether it is a state highway department, a city redevelopment agency, or a federally regulated pipeline company doing the taking. First, the condemning authority must have actual legal authority to condemn for the specific purpose at hand, granted by a constitution, statute, or, for certain regulated utilities, a government-issued certificate, and it typically must make a formal finding that the taking is necessary for that public purpose.
Next comes an appraisal, and under the Uniform Relocation Assistance Act's standards, adopted in some form by most states for their own projects, not just federal ones, the condemning authority is required to make a genuine, good-faith offer to purchase the property at its appraised fair market value and attempt to negotiate a voluntary sale before ever filing a condemnation lawsuit.
If the owner and the government cannot agree on a price, or the owner refuses to sell at all, the government files a condemnation action in court. In federal cases and in most states with "quick-take" statutes, the government can deposit its estimated compensation with the court and take title and possession immediately, while the actual, final compensation amount is decided afterward.
The final compensation question, in states and in federal court alike, is usually decided by a jury or a court-appointed panel of commissioners, who hear competing appraisals from the owner and the government and determine the property's true fair market value, plus, in many jurisdictions, additional damages for things like lost business goodwill or the cost of moving remaining property.
What Eminent Domain Is Actually Used For
Transportation projects are the single most common everyday use of eminent domain in the United States, since a highway, rail line, or airport runway generally must follow one specific, continuous physical path, unlike most other public projects that have some flexibility in where they are located. State transportation departments condemn narrow strips of land for road widenings constantly, usually with little controversy, while whole-neighborhood highway projects have historically been far more disruptive and contested.
The interstate highway system, authorized by the Federal-Aid Highway Act of 1956, remains the largest single episode of eminent domain in American history: according to U.S. Department of Transportation estimates, highway construction displaced more than 475,000 households, over a million people, nationwide, with displacement falling disproportionately on Black and other minority neighborhoods that had less political power to resist a proposed route.
Rail and transit condemnations follow a similar pattern today on a smaller scale, from Amtrak's Northeast Corridor upgrades to California's ongoing high-speed rail project, which has needed to condemn thousands of individual agricultural and residential parcels along its planned Central Valley route.
Airports present a related but distinct issue: beyond condemning land for runways and terminals themselves, airport authorities and the FAA also regularly purchase or condemn "avigation easements," the right to fly aircraft at low altitude over nearby homes, the same underlying right recognized as compensable property in United States v. Causby (1946).
Unlike most eminent domain, which is exercised directly by a government body, many states and the federal government delegate a limited eminent domain power to certain regulated private companies, electric utilities, water utilities, and, most prominently, interstate natural gas pipeline companies, so they can assemble the long, continuous rights-of-way their infrastructure needs.
Under the federal Natural Gas Act, a pipeline company that receives a "certificate of public convenience and necessity" from the Federal Energy Regulatory Commission gains the federal statutory right to condemn private land needed for the certificated route, even over a landowner's strong objection, so long as it pays just compensation, making FERC's certificate decision, not a separate court ruling on public use, the practical point where most pipeline-taking disputes are actually won or lost.
Electric transmission lines follow a similar pattern under state law, since state utility commissions typically approve a transmission route first, after which the utility can condemn the individual easements needed along that route, a process that has become increasingly contested as demand grows for new transmission capacity to support renewable energy and data-center electricity needs.
Because these are private, for-profit companies exercising a government-delegated power rather than the government condemning land for its own direct use, utility and pipeline takings have drawn some of the same "private benefit" public-use objections raised in Kelo, though courts have generally upheld them so long as the underlying regulatory approval process, and the resulting service to ratepayers generally, is genuine.
Dams, reservoirs, levees, and flood-control channels typically require condemning large areas of land, sometimes entire towns, to hold back or redirect water safely, and the federal government, through agencies like the Army Corps of Engineers, the Bureau of Reclamation, and historically the Tennessee Valley Authority, has used eminent domain extensively for exactly this purpose since the early 20th century.
TVA's dam-building program in the 1930s and 1940s, upheld against legal challenge in United States ex rel. TVA v. Welch (1946), condemned land for dozens of reservoirs across the Tennessee Valley, in some cases requiring the relocation of entire small towns before their original sites were flooded permanently.
Modern flood-control condemnation increasingly involves buying out and removing structures from floodplains after repeated flood damage, often through FEMA's hazard mitigation buyout programs, which function as a voluntary alternative to condemnation but rely on similar appraisal and compensation principles, converting frequently flooded residential land back into open floodplain rather than rebuilding in place.
As Arkansas Game and Fish Commission v. United States (2012) illustrates, flood-control decisions can also create takings liability in the other direction, when a government's water-management choices cause recurring flooding damage on land it never intended to take at all, an issue expected to grow as climate-driven flooding and changing dam-release policy intersect more often with private and public land alike.
Condemning land for a public building, a school, a courthouse, a post office, a fire station, is among the oldest and least legally contested categories of eminent domain, since the government itself will directly own, operate, and use the resulting building for a use the public visits, an easy fit for even the narrowest historical definition of "public use."
Kohl v. United States (1875), the earliest major Supreme Court eminent domain case, involved exactly this kind of taking, land condemned in downtown Cincinnati for a federal courthouse and post office, and the basic legal framework for these straightforward government-building takings has changed comparatively little in the 150 years since.
School district condemnations follow the same pattern today, typically for new school sites, athletic facilities, or bus depots, and are usually resolved through negotiated purchase rather than litigation, since the public-use question is rarely in genuine dispute for a project the government itself will own outright.
The clearest, least controversial cases in this category stand in sharp contrast to the more contested categories below, blight clearance and economic development, where the land ultimately ends up owned and used by a private party rather than the government itself, which is exactly the distinction that has driven most of the major legal fights covered elsewhere on this page.
Beginning with the Housing Act of 1949 and validated constitutionally by Berman v. Parker (1954), the federal government funded and encouraged large-scale "urban renewal" programs that let cities condemn entire designated areas found to be blighted, not just individually unsafe buildings, clear them, and transfer the land to private developers to rebuild according to a comprehensive plan.
Between the 1950s and 1970s, urban renewal projects nationwide demolished several hundred thousand housing units, disproportionately in Black and other minority neighborhoods that had less political power to contest a blight designation, a pattern documented extensively by federal housing researchers and historians and often criticized at the time and since with the phrase "urban renewal means Negro removal," often attributed to the writer James Baldwin.
Public criticism of urban renewal's human cost, combined with growing skepticism about how loosely "blight" was sometimes defined, led Congress to formally end the federal urban renewal program in 1974, replacing it with the Community Development Block Grant program, which funds local redevelopment without the same automatic condemnation authority attached.
Blight-based condemnation still exists today at the state and local level, but most states now define "blight" more narrowly and with more procedural safeguards than the sweeping standard Berman v. Parker upheld, a direct legacy of both the human cost of 1950s and 1960s urban renewal and the Kelo backlash that followed decades later.
The most legally contested and most restricted category today is the "economic development" taking, where a government condemns property, often not blighted at all, based on the argument that transferring it to a different private owner, usually a developer or a larger business, will generate more jobs or tax revenue than the property's current use.
The Supreme Court upheld this practice under the federal Constitution in Kelo v. City of New London (2005), but the ruling triggered such a fast and broad bipartisan legislative backlash that, within a few years, most states had restricted or banned pure economic-development takings under their own state constitutions and statutes, even though the underlying federal ruling in Kelo was never overturned and remains good law nationally.
The practical result today is a state-by-state patchwork: some states, like Michigan after Hathcock and Arizona after Proposition 207, offer property owners protection well beyond what Kelo itself requires, while other states retained broad redevelopment and blight-clearance authority that can still function similarly to an economic-development taking in practice, meaning a property owner's real-world protection can vary enormously simply based on which state their property happens to sit in.
This patchwork is also the backdrop for the alternative approach New York City took when it wanted to expand affordable grocery access rather than rely on eminent domain at all, covered in the next section.
Not Every Public Goal Requires Eminent Domain
When New York City set out to make groceries more affordable in neighborhoods with too few full-service supermarkets, it did not condemn any existing grocery store, bodega, or lot. The plan is a useful, contemporary example of the difference between eminent domain, a coercive legal power, and ordinary government market participation, a voluntary one.
The Public Grocery Store Pilot
New York City Mayor Zohran Mamdani, who took office in January 2026 after campaigning on a platform of expanding city-run public services to address the cost of living, proposed a pilot program to open five city-owned grocery stores, one in each of the city's five boroughs, aimed at neighborhoods known as "food deserts," areas with too few full-service supermarkets and correspondingly higher prices and less fresh food access than wealthier parts of the city.
Under the plan, the city-run stores would be funded and operated by New York City itself rather than a private grocery chain, with the proposal arguing that a publicly run store, one that does not need to pay rent, property taxes, or generate profit for shareholders, could sell groceries at meaningfully lower markups than a typical private supermarket while still covering its operating costs.
The plan's published policy materials were widely reported to describe the pilot as requiring roughly 60 million dollars in initial city investment to open and operate the five stores, explicitly framed as a test of whether public grocery ownership can measurably lower prices and improve food access in underserved neighborhoods, with the results intended to guide whether the model expands further.
The proposal drew both support and skepticism typical of a genuinely new municipal program, supporters pointing to existing public enterprises like municipal utilities and public hospital systems as precedent for government successfully operating a needed service directly, and skeptics questioning whether a city government can run retail grocery operations as efficiently as experienced private grocers. That policy debate is separate from, and does not depend on, any use of eminent domain.
Why the Plan Never Involved Condemning Any Existing Store
The public grocery store plan is notable, in the context of this page, precisely because it does not use eminent domain at all. The city's proposal involves opening new stores on city-owned land or in leased commercial space, the same way any private business finds a location, rather than condemning an existing, operating private grocery store, bodega, or supermarket and converting it to public use.
That choice avoids the entire body of public-use litigation risk documented on this page. New York's own state courts have historically given broad deference to blight and redevelopment findings, as shown in Goldstein v. Pataki (2008) and the related litigation over the same Atlantic Yards project, but any contested condemnation can still bring years of litigation, as Kelo did. Choosing not to condemn anything sidesteps that legal fight entirely.
The approach also avoids the underlying policy problem eminent domain would have created here: displacing an existing grocery business and its employees and regular customers in order to replace it with a different grocery operator, even a public one, would have directly recreated the "who benefits" objection raised in cases like Southwestern Illinois Development Authority v. National City Environmental and Bailey v. Myers, where condemning one operating business to hand its location to a different, favored operator was found improper. A new public store competing for customers in the existing marketplace, rather than replacing a specific condemned competitor, does not raise that objection.
In that sense, the city-owned grocery store pilot represents a different, older tool than eminent domain: direct government market participation, the same basic model behind public power utilities, municipal broadband networks in some cities, and New York City's own public hospital system, NYC Health + Hospitals. Rather than compelling a private owner to sell under threat of condemnation, the government simply enters the market itself as a competitor, funded by public money and subject to ordinary budget and procurement rules rather than the Takings Clause.
Ten Facts Worth Knowing
A quick-reference set of facts drawn from the sourced material throughout this page, useful for a fast read or a classroom discussion starter.
The Fifth Amendment's Takings Clause is just twelve words long, yet it has generated more than two centuries of Supreme Court litigation over what "public use" and "just compensation" actually mean.
Kelo v. City of New London (2005) triggered eminent domain reform laws in 44 states within four years, one of the fastest bipartisan legislative reactions to any Supreme Court decision in modern history.
Interstate highway construction displaced more than 475,000 households, over a million people, according to U.S. Department of Transportation estimates, the largest single episode of eminent domain in American history.
Susette Kelo's small pink house, the namesake property of Kelo v. New London, was moved to a new location in New London rather than demolished, and still stands today.
Michigan's Supreme Court overruled its own 1981 Poletown decision in 2004's County of Wayne v. Hathcock, calling its earlier reasoning a "radical departure" from the state constitution, one year before Kelo reached the opposite conclusion under the federal Constitution.
The federal government's "quick-take" authority, in place since the Declaration of Taking Act of 1931, lets it take title and possession of condemned land immediately after depositing its own estimated compensation with a court, before the final amount is even decided.
Interstate pipeline companies that receive a certificate from the Federal Energy Regulatory Commission can use eminent domain to acquire private land for the certificated route, one of the few instances where a private, for-profit company wields a government-delegated condemnation power.
The Fourth and Fifth Amendments were ratified together in 1791 but govern different problems: the Fourth restrains criminal searches and seizures, while the Fifth's Takings Clause governs the government's power to condemn property for public use.
It took until 1897, more than a century after ratification, for the Supreme Court to rule that the Fifth Amendment's just-compensation requirement even applies to state and local governments, in Chicago, Burlington & Quincy Railroad Co. v. City of Chicago.
The Uniform Relocation Assistance Act of 1970 was the first federal law to guarantee moving expenses and replacement-housing help to people displaced by public projects, arriving only after the most disruptive era of urban highway construction had already happened.
Sources & Further Reading
- U.S. Constitution, Bill of Rights Transcript (National Archives)
- Kelo v. City of New London, Oyez Case Summary
- Berman v. Parker, Oyez Case Summary
- Hawaii Housing Authority v. Midkiff, Oyez Case Summary
- Chicago, Burlington & Quincy Railroad Co. v. City of Chicago (Cornell LII)
- County of Wayne v. Hathcock, Justia
- Institute for Justice, Private Property Rights
- Institute for Justice, 50-State Report on Eminent Domain Reform
- Cornell Law School Legal Information Institute, Eminent Domain
- Uniform Relocation Assistance Act, 49 CFR Part 24 (eCFR)
- Federal Energy Regulatory Commission, Natural Gas Pipeline Certificates
- Federal Highway Administration, Highway History
- Library of Congress, Southwest Washington Urban Renewal Area (HABS)
- Library of Congress, Farm Security Administration/Office of War Information Collection
- Congressional Research Service, Reports on Congress.gov
Photo credits
- Hero: "Cross Bronx Expressway," Dan McCoy, U.S. Environmental Protection Agency DOCUMERICA program, April 1973 (public domain, National Archives).
- Alley dwellings, Southwest Washington, D.C., Arthur Rothstein, Farm Security Administration, November 1937 (public domain, Library of Congress).
- Interstate highway urban displacement photograph, reused from this site's Interstate Highway System history page.
Case facts and holdings on this page are drawn from the Supreme Court's own published opinions and Oyez case summaries, state supreme court opinions available through Justia and Cornell Law School's Legal Information Institute, the Institute for Justice's litigation archive and state-by-state eminent domain reform tracking, U.S. Department of Transportation and Federal Highway Administration historical data on interstate construction displacement, and contemporaneous and retrospective news coverage of individual cases and the New York City public grocery store proposal. Figures describing the New York City grocery store pilot are drawn from the proposal's published policy materials and widely reported coverage at the time of writing and may be updated as the program is implemented.