Legal Definitions - physical taking

A physical taking occurs when a government entity directly seizes, occupies, or permanently invades private property for public use. This direct appropriation of property, whether it involves the entire parcel or a specific portion, triggers the Fifth Amendment's requirement for "just compensation" to the property owner. It is distinct from a "regulatory taking," where government regulations diminish property value without a direct physical occupation.

Here are some examples illustrating a physical taking:

• Example 1: Road Expansion

  A county government decides to expand a busy highway. To do so, it uses its power of eminent domain to acquire a 15-foot strip of land from the front of several private commercial properties. The county then demolishes existing fences and landscaping on these strips and constructs new lanes and shoulders for the highway.

  Explanation: This is a physical taking because the county has directly seized and permanently occupied a specific portion of private property for a public purpose (highway expansion). The property owners are deprived of their exclusive use and possession of that particular strip of land, requiring the government to provide them with just compensation.

• Example 2: Utility Line Installation

  A municipal water authority needs to install a new underground water pipeline to serve a growing community. The most direct route for the pipeline crosses a corner of a private residential backyard. The authority obtains an easement, digs a trench, lays the pipes, and then covers the ground, but the easement grants them permanent access rights for maintenance and repair.

  Explanation: This constitutes a physical taking because the government, through its water authority, has physically invaded and permanently occupied a portion of the private backyard with its infrastructure (the pipeline) and retained permanent access rights. Even though the homeowner still owns the land, their exclusive control and use of that specific area are permanently diminished by the government's physical presence and rights.

• Example 3: Permanent Public Access Easement

  A state park service, aiming to connect two sections of a hiking trail, mandates that a private landowner whose property lies between the sections must allow the public to cross a designated 10-foot wide path on their land at all times. The state does not build anything, but it legally establishes a permanent public right-of-way across the private property.

  Explanation: This is a physical taking because the government has imposed a permanent physical invasion and occupation of a specific part of private property by the public. By requiring perpetual public access, the government has deprived the property owner of their fundamental right to exclude others from that portion of their land, which is a core aspect of property ownership.