Also known as: physical appropriations · physical taking
Written by attorneys · grounded in primary & secondary sources — see below
A government action that physically invades or commandeers private property and effects a per se taking under the Takings Clause. The action requires just compensation even when the invasion is temporary, intermittent, or directed at personal property rather than land.
Select any source to read its text and confirm it supports the definition.
Pierre Poulin owns a large agricultural operation. A state labor rule grants union organizers the right to enter his fields for three hours twice each week during harvest to solicit workers. The recurring entries appropriate Poulin's right to exclude others from his property. A court treats the mandated access as a per se physical taking that requires compensation.
Pavel Petrov purchases coastal acreage intending to build homes. A new regulation bars all construction because of erosion risks. Petrov retains no economically beneficial use of the parcel. The regulation functions as a physical appropriation of the land and triggers the duty to pay just compensation.
Perry Pratt operates underground coal mines. A statute requires him to leave pillars of coal in place to prevent surface subsidence. The requirement leaves Pratt unable to extract the designated coal. The regulation effects a physical appropriation of that discrete portion of his mineral estate.
Penelope Price holds multiple lakefront parcels slated for residential development. A regional agency imposes a multi-year moratorium on all building permits. Price cannot put the land to any productive use during the period. The moratorium does not amount to a physical appropriation because it merely delays rather than invades ownership rights.
Preston Pratt owns an apartment building. A cable company installs a small box and wiring on the roof pursuant to a city ordinance. The equipment occupies a discrete physical space on the structure. The installation constitutes a physical appropriation that requires just compensation regardless of its minimal size.
Paula Pierce seeks a permit to rebuild her beachfront home. The coastal commission conditions approval on her granting the public a permanent easement across her dry sand. The required dedication appropriates a physical interest in the land. The condition effects a taking unless it satisfies nexus and proportionality standards.
Yes. The Takings Clause protects personal property as well as real property. When the government compels surrender of a fixed percentage of finished goods or harvested crops to a government-controlled reserve, the action constitutes a per se physical taking that requires just compensation even if the owner retains only a contingent interest in later proceeds.
Supporting sources
…v. United States , 166 U. S. 269, 275-276 (1897). Justice Holmes recognized in Mahon , however, that if the protection against physical appropriations of private property was to be meaningfully enforced, the government's power to redefine the range of interests included in the ownership of property was necessarily constrained by…
…the court held that § 828 does not work a taking of appellant's property. Chief Judge Cooke dissented, reasoning that the
…property [shall not] be taken for public use, without just compensation.” The right to just compensation is not limited to physical appropriations
…some way; treating them all as per se takings would transform government regulation into a luxury few governments could afford.
…find any need to employ these analytical tools where the government has physically taken an identifiable segment of property.
Yes. A regulation that grants third parties a recurring legal right to enter private property for several hours on a fixed schedule appropriates the owner's right to exclude. Such mandated access is a per se physical taking even though each individual entry is brief and no permanent structure is erected.
Supporting sources
No. When the government physically removes or takes title to specific items of property, the owner's retention of only a contingent claim to later liquidation proceeds does not negate the taking. Compensation must be paid at the time of the appropriation.
Supporting sources
Physical appropriation occurs when the government directly invades or commandeers property and is treated as a per se taking. Regulatory takings that merely restrict use without physical invasion are evaluated under the multi-factor Penn Central test that weighs economic impact, interference with investment-backed expectations, and the character of the government action.
Supporting sources