Takings, Private Property and Public Rights

Abstract

Few legal problems have proved as resistant to analytical efforts as that posed by the Constitution's requirement that private property not be taken for public use without payment of just compensation.'Despite the intensive efforts of commentators and judges, 2 our ability to distinguish satisfactorily between "takings" in the constitutional sense, for which compensation is compelled, and exercises of the police power, for which compensation is not compelled, has advanced only slightly since the Supreme Court began to struggle with the problem some eighty years ago.3 Contemporary interest in environmental quality has spawned various attempts at property regulation, many of which actually or potentially collide with the takings provision.4 Nearly every attempt to regut Professor of Law, University of Michigan.1.U.S. Consr.amend.V: "IN]or shall private property be taken for public Use, without just compensation."This requirement has been deemed incorporated into the Fourteenth Amendment.Chicago, B. & Q.R.R. v. Chicago, 166 U.S. 226, 235.41 (1897); United States ex rel.TVA v. Powelson, 319 U.S. 266.279(1943).It is this language of the Fifth Amendment that is referred to throughout the article as the "takings provision" or the "compensation provision" of the Constitution.2. Ambitious recent articles include Dunham, Griggs v. Allegheny County in Per.spective: Thirty Years of Supreme Court Expropriation Law, 1962 Sup. C. Pm. 63 (1962; Michelman, Property, Utility and Fairness: Comments on the Ethical Foundations of "Just Compensation" Law, 80 HARv.L. Rxv.1165 (1967).See also Sax, Taldrgs and the Police Power, 74 YALE L.J. 36 (1964). Justice Harlan's opinion inMugler v. Kansas.123 U.S. 623 (1887), is generally treated as the beginning of modem compensation law.4. MacGibbon v. Board of Appeals.356 Mass.635, 255 N.E.2d 347 (1970); Maine v. Johnson, 265 A.2d 711 (Maine 1970); Wilkes, Constitutional Dilemmas Posed by State Policies Against Marine Pollution-The Maine Example, 23 MAINE L. Rn'.143 (1971); Waite.Ransoming the Maine Environment, 23 MAINE L. REv.103 (1971); Bartlett v. Zoning Comm'n, 161 Conn.24, 282 A.2d 907 (1971).See also Zabel %.Pinellas Co. IV.& NA., 171 So.2d 376 (Fla.1965).A leading case, upon which the wetlands decisions rely heavily, is Dooley v. Town Plan & Zoning Comm'n, 151 Conn.304, 197 A.2d 770 (1964) (flood plain regulation).See also Arveme Bay Constr.Co. v. Thatcher.278 N.Y.222, 232, 15 N.E.2d 587, 591 (1938) and Morris County Land Improvement Co. %.Tonship of Parsipanny-Troy Hills, 40 N.J. 539, 556-57, 193 A.2d 232, 241 (1963).Compare Candlestick Properties, Inc. v. San Francisco B.C. & D. Comm'n, 11 Cal.App.3d 557, 89 Cal.Rptr.897 (1970).Principal bills now pending in the Congress which would ban strip mining are H.R.

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