Students of property are familiar with controversial U.S. Supreme Court decisions. Kero vs. City of New Londonrejected a challenge to the state of Connecticut’s use of prominent land to clear working-class neighborhoods for private redevelopment projects. But there’s a little-studied state constitutional wrinkle to the take argument. Some state constitutions appear to allow taking for certain limited private uses. These provisions clarify the paths that courts may take. cellar — and may offer some new ways to think about today’s take.
Each state secedes from the federal law
cellar Notorious in both property law and state constitutional circles. The court made this decision in 2005. cellar Professor Ilya Somin argued that “private ‘economic development’ is sufficient to satisfy the Fifth Amendment’s requirement that the government may condemn property only for ‘public use.'” The planned development never materialized. “For many years, this prohibited land was used only by feral cats,” Somin wrote.
In the years that followed, 45 states rejected the ruling as a matter of state law, some through their own interpretations of the state constitution, and others by amending their state constitutions.
But even before that, cellar In response to the backlash, some state constitutions appear to be departing from the federal charges clause. The constitutions of several states contain language dating back to the 19th century that specifies the circumstances in which filming for private use is permitted. An example of one of these “private use” provisions is the one in Colorado:
Private property shall not be taken for personal use without the consent of the owner. However, it may not be used for agricultural, mining, milling, domestic or sanitary purposes, except when necessary in a private manner, and except as reservoirs, drainage canals, channels or ditches on or across the land of others.
This provision begins as a prohibition on extraction for private use and clarifies what the federal extraction provisions prohibit, but then creates exceptions. What is the origin of this provision and similar provisions in other constitutions, and what was their place in the development of earlier prominent domain law? cellar?
The Constitutional Convention in which these provisions were adopted provides several insights, and two stand out from the debate surrounding acquisition for private use. First, these issues vividly illustrate how alive and well they were in the 19th century, with some states embracing and others rejecting the idea that filming for private use could be legal under federal and other laws. Second, the discussion on private use reveals a potentially interesting path that has not been taken so far. cellar: Many participants considered “necessity” to be an acceptable way to distinguish between notable abuses of territorial power and abuses that are genuinely in the public interest. Although they had different views on what exactly that meant, they repeatedly discussed its need as a touchstone for understanding when eminent domains are used for the benefit of private parties.
History of “public use”
The private use provision fits into the well-known history of eminent domain, a term used to describe the government’s power to take private property for public use. The majority opinion in cellarwritten by Justice John Paul Stevens, describes its history as follows: Many courts in the 19th century interpreted “public use” narrowly as something like “use by the public,” granting eminent lands for roads, bridges, and in some cases canals. Over time, state and federal courts expanded the concept to “public purpose,” presumably condemning and providing for the transfer of property from one private party to another so long as the public benefits. cellar itself.
To understand how the private use provisions fit in, please refer to Mr. Somin’s book. grasping handexamines nineteenth-century state judicial decisions regarding eminent territory and shows that the journey from “public use” to “public purpose” is not as linear or neat as it once was. cellar suggests. The discussion about private use shows the same thing.
To see what the difference between “public use” and “public purpose” is on the ground, consider one of the issues motivating private use provisions: wetlands. In some states, a single owner of a large parcel of land can block drainage of large tracts of farmland. If that owner refuses to sell the easement for the ditch, either in bad faith or demanding an unreasonable amount of money, thousands of acres could remain flooded and unusable. Will condemning easements be used in the public domain to allow flooded farmers to dry their land? Or is it private photography that is not allowed?
Courts in the 19th century reached different conclusions depending on whether they viewed “public use” as “use by the public” or as “public purpose.” Some treated the condemnation of ditches as useful for public use, on the grounds that ditches supported agriculture and, by extension, agriculture and industry. Others believed that the public interest was too diffuse or indirect to qualify and that the accusation was purely for private benefit. After all, this groove is not for everyone, nor is it available to everyone.
constitutional debate
This uncertainty likely led the framers of post-Civil War state constitutions to spell out the narrow categories within which private condemnation was permissible. The idea was to recognize that some projects, while formally private, have such substantial and beneficial effects as to merit treatment as public use. But discussions at the convention show how controversial the move was.
In California, for example, delegates ultimately rejected language similar to Colorado’s because they feared that explicitly allowing private use acquisition, even a limited one, would erode basic protections for property owners. Some argued that the provision violated the Basic Land Law, while others questioned whether a state could under federal law bless a condemnation that so clearly named and benefited a particular landowner or corporation. (The ghost of a powerful water company is approaching.)
The debate was similar in other states, such as Idaho, but the other side won. Representatives from Idaho did not rule out the possibility that the direct beneficiary of the ditch would be a single landowner or mining operator. But they emphasized that without some way to cross someone else’s land, underlying resources, whether water or minerals, are effectively stranded. In that sense, the project was public in a broader and more functional way, allowing for economic activity and settlement that would not otherwise have occurred.
Private use provisions were adopted primarily, although unevenly, by Western states. Early versions of private languages emerged in a few states in the East and Midwest in the 1860s and 1870s, often motivated by drainage problems. States such as Colorado, Idaho, Montana, Washington, and Wyoming have since adopted provisions expanding or refining the categories of permissible uses, while others such as California and Utah have rejected them altogether. I don’t think this is a march towards the inevitable. cellarbut it is consistent with other evidence that “public use” was hotly contested during that period. In Idaho, for example, the private language debate alone exceeds 100 pages, or about 5 percent of all publicly available records.
These records contain some fun information. The attitudes of representatives toward the federal constitution and their understanding of federal constitutional law are interesting. My recent paper is Yale University Regulation Journal Symposium commemorating the 20th anniversary of our founding underground, Let’s consider some examples of these provisions.
My personal favorite is the one that took place in Montana in 1889. There, one delegate argued that the private use provision under discussion “violated the U.S. Constitution,” but that it should be done anyway. (I think that’s about it for dominance.) More generally, the debate among delegates shows how much legal knowledge varies from convention to convention. Some state conventions were dominated by farmers and people without legal training. In the debate about civilian use, some farmers express humility in trying to understand the law or criticize its injustice.
importance of necessity
The private use discussion also illustrates the importance of the need for how participants understood the boundaries between acceptable and unacceptable use. Since I’m a real estate professor, I’m going to traumatize you here by bringing up a chestnut story from my first year course. It is a necessarily ancient easement with deep common law roots. Courts universally recognize that owners of landlocked land have a right of way to reach roads. This easement featured prominently in several discussions. If a party really needs a right of way to use the land, it should obtain it, several delegates reasoned, pointing to the category of private use as a logical extension of that principle.
Necessity was frequently discussed in conventions and occasionally incorporated into constitutional provisions and contemporary examples. Let’s look at a court decision handed down in Nevada in 1876. Dayton Gold and Silver Mining Company v. Sewellwhich was discussed at the Montana and Utah conventions, and also cellar opinion. of dayton The court upheld the decision to transport the minerals across private land because there was a need to utilize the minerals at that location. This is in contrast to using prominent domains for things like “hotels and theaters” that can be placed anywhere. dayton Express this like this: “The subject matter for which private property is acquired must not only be of great public interest and in the best interest of the community, but also that there must be a need to enforce eminent territory rights.” This suggests a different approach than the one taken by the U.S. Supreme Court on eminent territory. cellaremphasized only the validity of the public interest in censure, not the absolute necessity of censure.
The Supreme Court probably won’t reconsider cellar In the near future, the concept of necessity will begin to appear elsewhere in prominent territorial law. The need has been discussed in important decisions regarding limits on government power to grant access to property or cause damage to property during police operations. To be sure, one can debate what exactly necessity means or how it can be proven, but the record of state constitutions makes it clear that most delegates considered it to be an important part of what makes private entity benefiting conduct legally permissible. The private use debate therefore offers a promising lens for thinking about public use today and in the next wave of debates.
Maureen (Molly) E. Brady is the Louis D. Brandeis Professor of Law at Harvard Law School.
Recommended Citation: Maureen E. Brady A path not chosen under federal lawSᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (January 26, 2026), https://statecourtreport.org/our-work/analysis-opinion/path-not-taken-federal-takes-law
