What Is a Taking? Once More With Feeling

We find it difficult to believe but several smart and prestigious gents have noted in their commentaries on the Koontz case that during oral arguments some of the Justices had problems grasping “what has been taken.” We don’t know precisely what was on their minds, but it sounds suspiciously like a throwback to the olden days when regulators advanced┬áthe “I know it when I seize it” approach and demanded that the rule should be “No physical interference, no taking.” But that can’t be, can it? Not in the 21st century, decades after Pennsylvania Coal Co. v. Mahon and a quarter century after First English.

So maybe it’s time to remind everybody that SCOTUS was quite explicint in the General Motors case of World War II vintage, that a taking is not the accretion of any property right to the taker, but rather the deprivation of the owner. That makes sense because once the owner is deprived of his property or property interest, it doesn’t matter what happens to it — the owner loses it and is deprived of the beneficial attributes of property ownership.

So in Koontz, as we understand it, the taking was the prevention of the owner from putting his property to economic use because after paying for the offsite improvements that the rregulators demanded, the proposed development of his property didn’t “pencil out,” and he was thus deprived of the right of user. We use this old term because it ties in nicely with Blackstone’s rhetorical question of: what is property if not the use thereof?

Although the mechanism of the taking in the 19th century Pumpelly case was flooding, making it a physical taking case, the opinion does an excellent job of explaining that it is the extinguishment of a right — of the owner’s ability to use his land that constitutes the taking. Check it out.

In other words, to get back to the old, first-year law school stuff, property is not a thing but a right, or more accurately a group of rights, duties, etc. Being a Californian, your faithful servant is mindful that our statutory law defines “property” as “the right of one or more persons to posses and use it to the exclusion of others.” Cal. Civil Code Sec. 654. Sounds pretty straightforward to us: if you deprive a property owner of the right to use his property in a reasonable fashion, you have taken it. Right?

That wasn’t so hard, Your Honors, was it?

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