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See also Fifth Amendment (takings). Under the Fifth Amendment the last clause states: nor shall private property be taken for public use, without just compensation. This provision prohibits the government from taking private property without fair compensation.


There is no set formula to determine if compensation is constitutionally due for a government restriction of property. Resolving whether public action works a taking is ordinarily an ad hoc inquiry in which several factors are particularly significant -- the economic impact of the regulation, the extent to which it interferes with investment-backed expectations, and the character of the governmental action. Despite all this one rule remains perfectly clear: any permanent physical occupation is a taking.


The historical rule that a permanent physical occupation of another's property is a taking has more than tradition to commend it. Such an appropriation is perhaps the most serious form of invasion of an owner's property interests. To the extent that the government permanently occupies physical property, it effectively destroys each of these rights. First, the owner has no right to possess the occupied space himself, and also has no power to exclude the occupier from possession and use of the space.


The ...

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