Maureen E. Brady

Twenty-seven state constitutions contain a clause prohibiting the “damaging” or “injuring” of property for public use without just compensation. Yet when compared to its relative, the Takings Clause of the Federal Constitution—which says that private property cannot be “taken” for public use without just compensation—the ways in which state courts interpret and apply their “damagings clauses” have remained opaque and virtually unstudied.

This Article recovers the hidden history of the state damagings clauses. It traces the clauses to the threats to private property posed at the turn of the twentieth century as a result of rapid infrastructural improvement. These state constitutional provisions were meant to fix perceived inequities resulting from strict application of takings law: many jurisdictions would not recognize a right to compensation when public works affected use rights and drastically devalued property but did not physically invade or appropriate it. Drafters envisioned the damagings clauses as a powerful bulwark for property owners whose livelihoods and homes were affected yet not touched by public works. However, as state courts were tasked with the brunt of the interpretive work, their rulings coalesced around a variety of doctrinal limitations that severely undercut the clauses’ potency. As a result, modern interpretations of the clauses mainly provide coverage in a variety of contexts where the offending activity would already qualify as a physical-invasion taking under most federal precedents.

This Article argues that the damagings clauses deserve broader applications in condemnation law. Damagings comprise a more limited and historically supported category than regulatory takings, for which courts have long awarded compensation. Moreover, courts already try to mandate compensation for some of these types of injuries by manipulating ordinary takings law, leading to unnecessary doctrinal confusion. As a new wave of infrastructural growth looms, it is time for professors and practitioners to return their attention to these forgotten provisions of the state constitutions.

The Federal Constitution and nearly all state constitutions include takings clauses providing that private property shall not be taken for public use without just compensation. To the extent that scholars have considered the role of state courts with regard to these takings clauses, they have focused around constitutional limits on judicial restrictions of what constitutes property. Little attention has been paid, however, to how state courts can expand the definition of private property—and the problems and possibilities associated with that capability.

Through an original case study derived from unexamined historical sources, this Article explores the complex questions raised by constitutional property creation. It tells the story of a series of nineteenth- and twentieth-century cases on street grading, in which property owners sought relief when municipal officials vertically shifted streets—sometimes in excess of a hundred feet—to improve transportation. Though these regrades often loomed over people’s homes or left them stranded on inaccessible cliffs, government officials contended that because the regrades did not physically take any property, abutting owners could not bring takings claims. In response, state courts created a novel “right of access” to land and treated this right as constitutional property confiscated by the regrades, an innovation which entitled affected owners to compensation for the serious damages their land suffered.

As this history demonstrates, state courts have played an important role in takings law by recognizing new forms of constitutional property. By neglecting constitutional property innovation, scholars who argue that legislatures should be responsible for changes in property rules have missed a significant piece of the puzzle. Consequently, the history of court-made constitutional property rights carries implications for institutional choice analyses in property law. While there may be good reasons to prefer that legislatures allocate and define novel property interests as a general matter, courts have been overlooked as sites where constitutional property rights are created and debated in response to perceived political failures.