Legal Definitions - actual taking

An actual taking, also known as a physical taking, occurs when a government entity directly occupies, confiscates, or physically invades private property for public use. This involves the government taking possession of the property itself, or a portion of it, rather than simply regulating how the property can be used. When an actual taking occurs, the Fifth Amendment to the U.S. Constitution requires the government to provide "just compensation" to the property owner.

Here are some examples illustrating an actual taking:

• Example 1: Road Widening Project

  A city council decides to widen a busy public road to alleviate traffic congestion. To do this, they determine that a 10-foot strip of land from the front yards of several residential properties is necessary. The city then uses its power of eminent domain to acquire these strips of land, physically removes fences and landscaping, and paves over the acquired portions to expand the road.

  This illustrates an actual taking because the city physically seized and converted a portion of private land for a public purpose (the road). The property owners no longer have possession or control over those specific strips of land.

• Example 2: Permanent Flooding for a Dam Project

  A state government constructs a new hydroelectric dam, and as a result, the water level of a nearby river permanently rises, submerging a significant portion of a private rancher's grazing land. The land becomes perpetually underwater and unusable for its previous agricultural purpose.

  This is an actual taking because the government's action directly and permanently invaded the private property with water, effectively taking physical possession and control of that submerged land from the rancher.

• Example 3: Seizure of a Building for Public Use

  The federal government determines it needs a new building to house a regional administrative office and identifies a privately owned commercial building in a downtown area as the ideal location. After negotiations fail, the government initiates eminent domain proceedings, acquires the title to the building, and takes physical possession, converting it for government use.

  This demonstrates an actual taking because the government directly acquired and occupied the entire private building, removing it from the owner's possession and control for a public function.