Property Rights & Land Use Supreme Court Cases

While most property disputes implicate state law, the Supreme Court has reviewed cases invoking certain constitutional protections. These may arise under the Takings Clause of the Fifth Amendment, which provides that private property must not be taken for public use without just compensation. A taking may occur when a government regulation restricts the use of land, even if the government does not invade or occupy the land. The Supreme Court has defined “public use” broadly, encompassing such purposes as economic development.

Meanwhile, zoning ordinances have faced constitutional challenges under the Fourteenth Amendment principles of due process and equal protection. The Supreme Court has applied a deferential standard of review to these ordinances, finding that they usually fall within the legitimate police power of local governments. Property issues that have reached the Court also include the exercise of free speech rights on various types of property and the enforceability of discriminatory real estate covenants.

Early in the 19th century, Chief Justice John Marshall ruled that Native Americans merely occupy rather than own their land. This decision laid the foundation for core principles of Native American law.

Below is a selection of Supreme Court cases involving property rights and land use, arranged from newest to oldest.

Cedar Point Nursery v. Hassid (2021)

Author: John Roberts

The right to exclude is a fundamental element of the property right. A regulation granting labor organizations the right to take access to an agricultural employer's property to solicit support for unionization was a per se physical taking.


Knick v. Township of Scott (2019)

Author: John Roberts

A government violates the Takings Clause when it takes property without compensation, and a property owner may bring a Fifth Amendment claim under Section 1983 at that time.


Murr v. Wisconsin (2017)

Author: Anthony Kennedy

In determining the denominator of the takings inquiry, a court must consider the treatment of the land under state and local law, the physical characteristics of the land, and the prospective value of the regulated land. The endeavor should determine whether reasonable expectations about property ownership would lead a landowner to anticipate that their holdings would be treated as one parcel or as separate tracts.


Horne v. Dept. of Agriculture (2015)

Author: John Roberts

The Fifth Amendment requires that the government pay just compensation when it takes personal property, just as when it takes real property.


Koontz v. St. Johns River Water Management District (2013)

Author: Samuel A. Alito, Jr.

The government's demand for property from a land-use permit applicant must satisfy the Nollan and Dolan requirements even when the demand is for money.


Arkansas Game & Fish Commission v. U.S. (2012)

Author: Ruth Bader Ginsburg

Government-induced flooding temporary in duration gains no automatic exemption from Takings Clause inspection.


Stop the Beach Renourishment, Inc. v. Florida Dept. of Environmental Protection (2010)

Author: Antonin Scalia

The state as owner of the submerged land adjacent to littoral property has the right to fill that land, so long as it does not interfere with the rights of the public and of littoral landowners. Also, if an avulsion exposes land seaward of littoral property that had previously been submerged, that land belongs to the state even if it interrupts the littoral owner's contact with the water. There is no exception to this rule when the state causes the avulsion.


City of Sherrill v. Oneida Indian Nation of New York (2005)

Author: Ruth Bader Ginsburg

When a tribe had relinquished governmental reins over an area long before, it could not regain them through open-market purchases from current titleholders.


Kelo v. City of New London (2005)

Author: John Paul Stevens

A city's decision to take property for the purpose of economic development satisfied the public use requirement of the Fifth Amendment.


Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency (2002)

Author: John Paul Stevens

A permanent deprivation of all use is a taking of the parcel as a whole, but a temporary restriction causing a diminution in value is not, for the property will recover value when the prohibition is lifted.


Palazzolo v. Rhode Island (2001)

Author: Anthony Kennedy

A Penn Central claim is not barred by the mere fact that the property owner acquired title after the effective date of the state-imposed restriction.


Dolan v. City of Tigard (1994)

Author: William Rehnquist

It must be determined whether an essential nexus exists between a legitimate state interest and a permit condition. If one does, it must be decided whether the degree of the exactions demanded by the permit conditions bears the required relationship to the projected impact of the proposed development. In deciding the second question, the necessary connection is “rough proportionality.”


Lucas v. South Carolina Coastal Council (1992)

Author: Antonin Scalia

When the state seeks to sustain regulation that deprives land of all economically beneficial use, it may resist compensation only if the logically antecedent inquiry into the nature of the owner's estate shows that the proscribed use interests were not part of their title at the outset. A total taking inquiry entails an analysis of the following factors: the degree of harm to public lands and resources, or adjacent private property, posed by the claimant's proposed activities; the social value of the claimant's activities and their suitability to the locality in question; and the relative ease with which the alleged harm can be avoided through measures taken by the claimant and the government (or adjacent private landowners) alike.


Pennell v. City of San Jose (1988)

Author: William Rehnquist

Preventing unreasonable rent increases caused by a city housing shortage is a legitimate exercise of the police powers of the city government.


Hodel v. Irving (1987)

Author: Sandra Day O’Connor

While the government has broad authority to adjust the rules governing the descent and devise of property, the complete abolition of both the descent and devise of a particular class of property may be a taking.


Keystone Bituminous Coal Ass'n v. DeBenedictis (1987)

Author: John Paul Stevens

Since mine operators retained the right to mine virtually all the coal in their mineral estates, a burden placed on the support estate did not constitute a taking. (The support estate is not a separate segment of property for takings law purposes.)


Nollan v. California Coastal Commission (1987)

Author: Antonin Scalia

Unless a permit condition serves the same governmental purpose as the development ban, the building restriction is not a valid regulation of land use.


First English Evangelical Lutheran Church v. Los Angeles County (1987)

Author: William Rehnquist

When the government has taken property by a land use regulation, the property owner may recover damages for the time before it is finally determined that the regulation constitutes a taking.


U.S. v. Locke (1985)

Author: Thurgood Marshall

Regulation of property rights does not “take” private property when an individual's reasonable, investment-backed expectations can continue to be realized as long as they comply with reasonable regulations.


Hawaii Housing Authority v. Midkiff (1984)

Author: Sandra Day O’Connor

Only the purpose of a taking, rather than its mechanics, must pass scrutiny under the Public Use Clause of the Fifth Amendment.


U.S. v. 50 Acres of Land (1984)

Author: John Paul Stevens

“Just compensation” under the Fifth Amendment is normally measured by the market value of the property at the time of the taking.


Loretto v. Teleprompter Manhattan CATV Corp. (1982)

Author: Thurgood Marshall

When the character of a governmental action is a permanent physical occupation of property, there is a taking to the extent of the occupation regardless of whether the action achieves an important public benefit or has only a minimal economic impact on the owner.


Pruneyard Shopping Center v. Robins (1980)

Author: William Rehnquist

State constitutional provisions, as construed to permit people reasonably to exercise free speech and petition rights on the property of a privately owned shopping center to which the public is invited, do not violate the property rights or the free speech rights of the shopping center owner under the U.S. Constitution.


Penn Central Transportation Co. v. New York City (1978)

Author: William Brennan

There is no set formula for determining when justice and fairness require that economic losses caused by public action be compensated by the government. Factors to consider include the economic impact of the regulation on the property owner, the extent to which the regulation interferes with distinct investment-backed expectations, and the character of the government action.


Village of Belle Terre v. Boraas (1974)

Author: William O. Douglas

The police power is not confined to elimination of filth, stench, and unhealthy places. It is ample to lay out zones where family values, youth values, and the blessings of quiet seclusion and clean air make the area a sanctuary for people.


Lloyd Corp., Ltd. v. Tanner (1972)

Author: Lewis Powell

A shopping center does not lose its private character merely because the public is generally invited to use it for the purpose of doing business with the tenants of the center.


Jones v. Alfred H. Mayer Co. (1968)

Author: Potter Stewart

Federal law bars all racial discrimination, private as well as public, in the sale or rental of property.


Berman v. Parker (1954)

Author: William O. Douglas

Public ownership does not need to be the sole method of promoting the public purposes of a community redevelopment project. It is not beyond the power of Congress to utilize a private agency for this purpose, or to authorize the taking of private property and its resale or lease to the same or other private parties as part of such a project.


Barrows v. Jackson (1953)

Author: Sherman Minton

The Fourteenth Amendment bars the enforcement of a covenant forbidding the use and occupancy of real estate by non-Caucasians by an action at law in a state court to recover damages from a co-covenantor for a breach of the covenant.


Shelley v. Kraemer (1948)

Author: Fred M. Vinson

Private agreements to exclude persons of a designated race or color from the use or occupancy of real estate for residential purposes do not violate the Fourteenth Amendment, but it is violative of the Equal Protection Clause for state courts to enforce them.


U.S. v. Causby (1946)

Author: William O. Douglas

Flights of aircraft over private land that are so low and frequent as to be a direct and immediate interference with the enjoyment and use of the land are as much an appropriation of the use of the land as a more conventional entry on it.


Marsh v. Alabama (1946)

Author: Hugo Black

A state cannot impose criminal penalties for distributing religious literature on the sidewalk of a company-owned town contrary to regulations of the town management, when the town and its shopping district are accessible to the general public.


Nectow v. City of Cambridge (1928)

Author: George Sutherland

The inclusion of private land in a residential district under a zoning ordinance, with resulting inhibition of its use for business and industrial buildings to the serious damage of the owner, violates the Fourteenth Amendment if the health, safety, convenience, or general welfare of the part of the city affected will not be promoted as a result.


Miller v. Schoene (1928)

Author: Harlan Fiske Stone

When forced to make the choice, the state does not exceed its constitutional powers by deciding on the destruction of one class of property to save another class of property that, in the judgment of the legislature, is of greater value to the public.


Village of Euclid v. Ambler Realty Co. (1926)

Author: George Sutherland

A zoning ordinance is not unconstitutional unless it is clearly arbitrary and unreasonable, having no substantial relation to public health, safety, morals, or general welfare.


Pennsylvania Coal Co. v. Mahon (1922)

Author: Oliver Wendell Holmes, Jr.

If regulation goes too far, it will be recognized as a taking for which compensation must be paid.


Chicago, Burlington & Quincy Railroad Co. v. Chicago (1897)

Author: John Marshall Harlan

A judgment of a state court, even if authorized by statute, whereby private property is taken for public use without compensation made or secured to the owner, is wanting in the due process of law required by the Fourteenth Amendment.


Kohl v. U.S. (1875)

Author: William Strong

The right of eminent domain exists in the federal government and may be exercised by it within the states to the extent that it is necessary to the enjoyment of the powers conferred on the federal government by the Constitution.


Lessee of Ewing v. Burnet (1837)

Author: Henry Baldwin

An entry by one party on the land of another party is or is not an ouster of the legal possession arising from the title according to the intention with which it is done. If it is made under claim or color of right, it is an ouster; otherwise, it is a mere trespass.


Proprietors of Charles River Bridge v. Proprietors of Warren Bridge (1837)

Author: Roger Taney

While the rights of private property are sacredly guarded, the community also has rights, and the happiness and wellbeing of every citizen depend on their faithful preservation.


Barron v. Baltimore (1833)

Author: John Marshall

The provision in the Fifth Amendment declaring that private property shall not be taken for public use without just compensation is intended solely as a limitation on the exercise of power by the federal government, and is not applicable to the legislation of the states. (This decision was essentially overruled by later cases.)


U.S. v. Percheman (1832)

Author: John Marshall

Private property generally should not be confiscated and private rights annulled on a change in the sovereignty of a territory.


Johnson & Graham's Lessee v. McIntosh (1823)

Author: John Marshall

Native American inhabitants are to be considered merely occupants, to be protected while in peace in the possession of their lands, but deemed incapable of transferring absolute title to others.