Amendment 5 — Enforcing Right To Just Compensation

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Fifth Amendment :

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Ordinarily, the government takes property under a condemnation suit upon paying a money award, and no interest accrues.[1](https://www.law.cornell.edu/constitution-conan/amendment-5/enforcing-right-to-just-compensation#fn1amd5 " Danforth v. United States, 308 U.S. 271, 284 (1939); Kirby Forest Indus. v. United States, 467 U.S. 1 (1984) (no interest due in straight condemnation action for period between filing of notice of lis pendens and date of taking). ") If, however, the government takes property before making payment, just compensation includes an increment which, to avoid use of the term “interest,” the Court has called “an amount sufficient to produce the full equivalent of that value paid contemporaneously with the taking.” [2](https://www.law.cornell.edu/constitution-conan/amendment-5/enforcing-right-to-just-compensation#fn2amd5 " United States v. Klamath Indians, 304 U.S. 119, 123 (1938); Jacobs v. United States, 290 U.S. 13, 17 (1933); Kirby Forest Industries, 467 U.S. 1 (substantial delay between valuation and payment necessitates procedure for modifying award to reflect value at time of payment). ") If the owner and the government enter into a contract which stipulates the purchase price for lands to be taken, with no provision for interest, the Fifth Amendment is inapplicable and the landowner cannot recover interest even though payment of the purchase price is delayed.[3](https://www.law.cornell.edu/constitution-conan/amendment-5/enforcing-right-to-just-compensation#fn3amd5 " Albrecht v. United States, 329 U.S. 599 (1947). ") Where property of a citizen has been mistakenly seized by the government and converted into money which is invested, the property owner is entitled to recover compensation that incorporates increases to the property value during the period of seizure.[4](https://www.law.cornell.edu/constitution-conan/amendment-5/enforcing-right-to-just-compensation#fn4amd5 " Henkels v. Sutherland, 271 U.S. 298 (1926); see also Phelps v. United States, 274 U.S. 341 (1927). ")

The legislature has discretion over the nature and character of the tribunal to determine compensation and may select a regular court, a special legislative court, a commission, or an administrative body.[5](https://www.law.cornell.edu/constitution-conan/amendment-5/enforcing-right-to-just-compensation#fn5amd5 " United States v. Jones, 109 U.S. 513 (1883); Bragg v. Weaver, 251 U.S. 57 (1919). ") The Government brings proceedings to condemn land for the benefit of the United States in the federal district court for the district in which the land is located.[6](https://www.law.cornell.edu/constitution-conan/amendment-5/enforcing-right-to-just-compensation#fn6amd5 " 28 U.S.C. § 1403. Inverse condemnation actions (claims that the United States has taken property without compensation) are governed by the Tucker Act, 28 U.S.C. § 1491 (a)(1), which vests the Court of Federal Claims (formerly the Claims Court) with jurisdiction over claims against the United States “founded . . . upon the Constitution.” See E. Enters. v. Apfel, 524 U.S. 498, 520 (1998). Federal district courts may also hear inverse condemnation claims against the United States not in excess of $10,000 under the Little Tucker Act. 28 U.S.C. § 1346(a)(2). ") The Fifth Amendment does not establish a right to a jury to estimate just compensation; a judge, commission, or other body may make such determinations.[7](https://www.law.cornell.edu/constitution-conan/amendment-5/enforcing-right-to-just-compensation#fn7amd5 " Bauman v. Ross, 167 U.S. 548 (1897). Even when a jury determines the amount of compensation, it is the rule, at least in federal court, that the trial judge instructs the jury on the criteria, which includes determining “all issues” other than the compensation amount, so that the judge decides those matters underlying the jury’s calculation. United States v. Reynolds, 397 U.S. 14 (1970). ") Federal courts may appoint a commission in condemnation actions to resolve the compensation issue.[8](https://www.law.cornell.edu/constitution-conan/amendment-5/enforcing-right-to-just-compensation#fn8amd5 " Fed. R. Civ. P. 71.1(h). These commissions have the same powers as a court-appointed master. ") If a body other than a court is designated to determine just compensation, its decision must be subject to judicial review,[9](https://www.law.cornell.edu/constitution-conan/amendment-5/enforcing-right-to-just-compensation#fn9amd5 " Monongahela Navigation Co. v. United States, 148 U.S. 312, 327 (1893). ") although the legislature may limit the scope of review.[10](https://www.law.cornell.edu/constitution-conan/amendment-5/enforcing-right-to-just-compensation#fn10amd5 " Long Island Water Supply Co. v. Brooklyn, 166 U.S. 685 (1897). ") When a state court’s judgment to the amount of compensation is questioned, the Court’s review is restricted. The Court has stated: “All that is essential is that in some appropriate way, before some properly constituted tribunal, inquiry shall be made as to the amount of compensation, and when this has been provided there is that due process of law which is required by the Federal Constitution.” [11](https://www.law.cornell.edu/constitution-conan/amendment-5/enforcing-right-to-just-compensation#fn11amd5 " Backus v. Fort St. Union Depot Co., 169 U.S. 557, 569 (1898). ") The Court has also recognized that “[T]here must be something more than an ordinary honest mistake of law in the proceedings for compensation before a party can make out that the State has deprived him of his property unconstitutionally.” [12](https://www.law.cornell.edu/constitution-conan/amendment-5/enforcing-right-to-just-compensation#fn12amd5 " McGovern v. City of New York, 229 U.S. 363, 370–71 (1913). ") Unless, by its rulings of law, the state court prevented a complainant from obtaining substantially any compensation, the Court will not overturn the state court findings as to the amount of damages on appeal, even though, as a consequence of error therein, the property owner received less than he was entitled to.[13](https://www.law.cornell.edu/constitution-conan/amendment-5/enforcing-right-to-just-compensation#fn13amd5 " Id. at 371. See also Provo Bench Canal Co. v. Tanner, 239 U.S. 323 (1915); Appleby v. City of Buffalo, 221 U.S. 524 (1911). ")

Following Penn Central, the Court grappled with the appropriate remedy for property owners impacted by land use regulations.[14](https://www.law.cornell.edu/constitution-conan/amendment-5/enforcing-right-to-just-compensation#fn14amd5 " See, e.g., Agins v. City of Tiburon, 447 U.S. 255 (1980) (issue not reached because property owners challenging development density restrictions had not submitted a development plan); Hodel v. Va. Surface Mining & Reclamation Ass’n, 452 U.S. 264, 293–97 (1981), and Hodel v. Indiana, 452 U.S. 314, 333–36 (1981) (rejecting facial taking challenges to federal strip mining law). ") Regulations that go “too far” in reducing the value of property or which do not substantially advance a legitimate governmental interest present constitutional issues. Courts may invalidate such regulations as denying due process, or they may require compensation, at least for the period in which the regulation was in effect. In First English Evangelical Lutheran Church v. County of Los Angeles, the Court held that when land use regulation constitutes a taking, compensation is due for the period of implementation prior to the holding.[15](https://www.law.cornell.edu/constitution-conan/amendment-5/enforcing-right-to-just-compensation#fn15amd5 " 482 U.S. 304 (1987). ") The Court recognized that, even though government may elect in such circumstances to discontinue regulation and thereby avoid compensation for a permanent property deprivation, “no subsequent action by the government can relieve it of the duty to provide compensation for the period during which the taking was effective.” [16](https://www.law.cornell.edu/constitution-conan/amendment-5/enforcing-right-to-just-compensation#fn16amd5 " Id. at 321. ") Outside the land-use context, however, the Court has recognized a limited number of situations where invalidation, rather than compensation, remains the appropriate takings remedy.[17](https://www.law.cornell.edu/constitution-conan/amendment-5/enforcing-right-to-just-compensation#fn17amd5 " E. Enters. v. Apfel, 524 U.S. 498 (1998) (statute imposing generalized monetary liability); Babbitt v. Youpee, 519 U.S. 234 (1997) (amended statutory requirement that small fractional interests in allotted Indian lands escheat to tribe, rather than pass on to heirs); Hodel v. Irving, 481 U.S. 704 (1987) (pre-amendment version of escheat statute). ")

The applicability of the ripeness doctrine to takings claims is an area the Court has developed extensively since Penn Central. In Williamson County Regional Planning Commission v. Hamilton Bank,[18](https://www.law.cornell.edu/constitution-conan/amendment-5/enforcing-right-to-just-compensation#fn18amd5 " 473 U.S. 172 (1985). ") the Court announced a two-part ripeness test for takings actions brought in federal court, although the Court subsequently overturned the second part of this test in Knick v. Township of Scott.[19](https://www.law.cornell.edu/constitution-conan/amendment-5/enforcing-right-to-just-compensation#fn19amd5 " 139 S. Ct. 2162, 2179 (2019). ") The Williamson County two-part ripeness test provided, first, for an as-applied challenge, the property owner must obtain from the regulating agency a “final, definitive position” regarding how it will apply its regulation to the owner’s land[20](https://www.law.cornell.edu/constitution-conan/amendment-5/enforcing-right-to-just-compensation#fn20amd5 " Williamson Cty., 473 U.S. at 191. ") and, second, when suing a state or municipality, the owner must exhaust any possibilities for obtaining compensation from the state or its courts before coming to federal court.[21](https://www.law.cornell.edu/constitution-conan/amendment-5/enforcing-right-to-just-compensation#fn21amd5 " Id. at 195. ") Thus, in Williamson County,