Chapter 50
Real Property and Landlord-
Tenant Relationships
Case 50.1
949 So.2d 9
James M. BIGLANE and Nancy K. Biglane
v.
UNDER THE HILL CORPORATION.
No. 2005-CA-01751-SCT.
Feb. 8, 2007.
, Justice, for the Court.
¶ 1. In this case we are asked two questions. First, was the noise coming from a local saloon such that it constituted a private nuisance to the
residents of an apartment next door? Second, were the actions of the neighbor of the saloon a tortious interference with business relations?
2. “No spot on the American continent ever bore a viler name” wrote one historian about the section of Natchez that was closest to the
mighty Mississippi River. Edith Wyatt Moore, Natchez Under-The-Hill 7 (1958). The spot gained its name from the bluffs of loess which the
¶ 3. “For the size of it, there is not, perhaps in the world, a more profligate place,” said one visitor, while another called it “hell on earth, with
4. Straddling the uncertain area between crumbling cliffs and the wild river, Natchez Under-the-Hill suffered many natural disasters, and
“[s]ome claim that the Great River, in revenge against the place that shamed its name, altered its course, widened its banks and gobbled up
5. Time and great changes in technology eliminated the necessity of Natchez as a port, as the riverboats gave way to steam-powered
locomotives, which in turn gave way under the advent of automobiles and airplanes. “It was the area’s infamous past, however, that
6. Onto this stage strode the two families who take center stage in the case at hand. In 1967 Nancy and James Biglane purchased a
dilapidated building at 27 Silver Street that had been built in the 1840s, and opened the lower portion of the building as a gift shop in 1978.
7. The Saloon would establish itself proudly as a welcoming haven for locals and visitors alike, and maintained its presence on 25 Silver
Street as other businesses came and went. The Biglanes began converting the upper floors of 27 Silver Street into a large apartment, which
they moved into in 2002.
¶ 8. Despite installing insulated walls and windows, locating their bedroom on the side of the building away from the Saloon, and placing their
9. Specifically, it was live music, a hallmark of the Saloon. During the summertime the un-air conditioned Under the Hill opened its
10. The Biglanes contacted the Saloon and asked that the music be turned down, and it was: Mr. Farish got rid of Groove Line, the band
that seemed to trouble the Biglanes the most, and installed thick windows to block noise. He also purchased a sound meter by which bands
could measure their output in decibels, and forbade them from going over a certain point.
11. Still dissatisfied, the Biglanes blocked off two nearby parking lots that served the Saloon, using a cable over the entrance of one and
12. The couple alleged private nuisance, among other causes of action, and Under the Hill counterclaimed, alleging that the Biglanes had
tortiously interfered in its business (by blocking the nearby parking lots) and defamed them (by sending a letter of complaint to the City
Attorney).
13. The trial court heard multiple witnesses who testified to a dazzling array of subjects, including a historian who described the origins
14. The chancellor determined that Under the Hill was a private nuisance to the Biglanes, and enjoined the Saloon from leaving open any
doors or windows when music was playing, and ordered it to prevent patrons from loitering in the streets. The trial court also found that the
Biglanes had tortiously interfered with the business relations of Under the Hill. Although no damages were actually shown, the trial court
assessed nominal and punitive damages because of the intentional character of the conduct.
15. In lieu of setting an amount for damages, the trial court attempted to bring the parties together for “the opportunity to reach some
16. Aggrieved, the Biglanes appealed, arguing that damages were improperly awarded, and Under the Hill cross-appealed, arguing that its
business was not a private nuisance.
STANDARD OF REVIEW
¶ 17. In this case we are presented with questions of law and fact arising from the determination of a chancery court. We “always review a
chancellor’s findings of fact, but … will not disturb the factual findings of a chancellor when supported by substantial evidence unless *14 [we]
can say with reasonable certainty that the chancellor abused his discretion, was manifestly wrong, clearly erroneous or applied an erroneous
legal standard.” . We use a de novo standard when analyzing questions of law.
DISCUSSION
I. Is the Under the Hill Saloon a Private Nuisance to the Biglanes?
18. The Biglanes asserted that the Saloon was a private nuisance. “A private nuisance is a nontrespassory invasion of another’s interest in
19. An entity is subject to liability for a private nuisance only when its conduct is a legal cause of an invasion of another’s interest in the
¶ 20. The trial court proceeded under the first path of liability-whether the conduct complained of was intentional and unreasonable. After
reviewing the evidence presented at trial, the chancellor found ample evidence that the Biglanes frequently could not use or enjoy their
21. The Saloon did offer a witness who lived in back of the establishment who said he never had any problems with the noise, but the
chancellor held that he was not an impartial witness, since he was testifying for his landlord.
22. Ultimately the trial court weighed the fact that the Biglanes knew or should have known that there was going to be some sort of noise
associated with living “within five feet of a well established saloon which provides live music on the weekends.”
24. The general rule is that “[a] business, although in itself lawful, which impregnates the atmosphere with disagreeable and offensive
odors and stenches, may become a nuisance to those occupying property in the vicinity, where such obnoxious smells result in a material
25. Accordingly, even a lawful business-which the Under the Hill Saloon certainly is –“may become … a nuisance” by interfering with its
neighbors’ enjoyment of their property.” We recognize that “[e]ach [private nuisance] case must be decided upon its own peculiar facts,
taking into consideration the location and the surrounding circumstances.” Ultimately, “[i]t is not necessary that other property owners
26. In we deferred greatly to the chancery court and determined that it “had the power to enjoin such future operations of the rendering
plant as constituted in fact a nuisance,” and that it also “had the lesser power to permit continued operation of the plant, subject to certain
stated conditions and requirements.” see also (chancery court’s limitation on farmowners “from keeping more than two roosters on their
property at any time” was affirmed as a proper equitable response to private nuisance caused by the crowing of the birds).
27. In the case at hand, the trial court exercised its power to permit continued operation of the Saloon while setting conditions to its
future operation. Namely, it found that the Saloon could not “operat[e] its business with its doors and windows opened during any time that
28. From a review of the record it is clear that the chancery court balanced the interests between the Biglanes and the Saloon in a quest
for an equitable remedy that allowed the couple to enjoy their private apartment and while protecting a popular business and tourist
attraction from over-regulation. See also (“Equity should adjust the remedy to the need in a nuisance case”). Accordingly, we agree that the
Saloon was a private nuisance to the Biglanes and affirm the trial court’s equitable conditions placed upon its continued operation.
II. Was There a Tortious Interference with Business Relations?
29. In response to the Biglanes’ assertion that the Saloon was a private nuisance, the bar counterclaimed, arguing that its neighbors had
interfered with the operation of their business. “There are four elements necessary to prove a claim of tortious interference with a business
*16 relationship: (1) The acts were intentional and willful; (2) The acts were calculated to cause damage to the plaintiffs in their lawful
30. Mr. Biglane, or corporations of which he has substantial control, owns much of the property surrounding the Under the Hill Saloon,
31. Ownership of the property is important because it speaks to the third factor of the tort-that the allegedly tortious acts must be
performed without right or justifiable cause. It is a basic tenet of property law that a landowner or tenant may use the premises they control
32. Generally speaking, it cannot be malicious for a person to refuse access to others to their private property. Accordingly, blocking off
the parking lot he owned in whole was not tortious conduct by Mr. Biglane.
33. The property comprising the area called Water Street is a different matter. There was extensive testimony by multiple witnesses
regarding the property, its history, nature, and various owners-whether Mr. Biglane, the City of Natchez, or others. The Water Street
property is not a paved street per se, but an area that has been built up on the western bank of the Mississippi River by placement of rock and
soil.
34. Part of Water Street is a parking lot, and the city engineer testified that roughly two parking spaces, or portions of the spaces, were
owned by the city. Another portion of Water Street is a boat ramp owned by Mr. Biglane. The city has a permanent easement to use the
35. It is undisputed that Mr. Biglane erected an iron gate blocking Water Street. The chancellor found that part of the property blocked
by the iron gate was owned by the city; that the gate itself partially rested upon city property; and that two of the parking spaces blocked by
Mr. Biglane were city property. In light of this evidence, the trial court found that the third factor required for tortious interference with
business was present-that Mr. Biglane did not have the right to block property which he did not own from public access.
36. Substantial evidence provided at trial and in the record supported the detailed and extensive findings of fact provided by the trial
¶ 37. Next we must consider whether the Under the Hill Saloon was damaged by the actions of the Biglanes. To satisfy this tort, we require
“actual” damages, which are synonymous with “compensatory” damages; they are substantial, rather than nominal. .
38. This does not mean that an exact dollar value must be set before we can find actual damages. In the case of we affirmed a
chancellor’s finding of tortious interference with business relations when a company, after suffering interference from a competitor, no longer
39. In the case at hand, Under the Hill conceded that it could not demonstrate a loss of income from the lack of parking. In fact, business
had slightly increased after the parking lots were blocked by Mr. Biglane, which was attributed by Mr. Farish to more riverboats docking in
¶ 40. The trial court assessed a damages award of $500 for “nominal damages” because it determined the Biglanes’ conduct was intentional.
The trial court based this finding upon the basic legal concept that nominal damages can be awarded for intentional torts. See (“nominal
damages … can only be granted in the absence of actual injury in cases of intentional tort,” and not in cases involving negligence). The
¶ 41. This is a classic case of a dispute between two neighbors. We reaffirm our position that a finding of tortious interference with business
relations must be based upon a finding of actual damages, and also that a landowner may not use its property in such a fashion as to
¶ 42. ON DIRECT APPEAL: REVERSED AND RENDERED. ON CROSS-APPEAL: AFFIRMED.
Case 50.2
Miss.App.,2010.
Scarborough v. Rollins
— So.3d —-, 2010 WL 774985 (Miss.App.)
Court of Appeals of Mississippi.
Charles T. SCARBOROUGH, Appellant
v.
Mildred P. ROLLINS, Appellee.
No. 2008-CA–01579-COA.
March 9, 2010.
Rehearing Denied June 22, 2010.
ISHEE, J., for the Court:
1. Charles T. Scarborough and Mildred T. Rollins were adjoining landowners, sharing one common boundary. In July 2006, Scarborough filed a
complaint seeking to quiet and confirm his title to the property, as well as a determination from the trial court as to ownership of culverts
2. The chancellor determined that the gravel road, which is to the north of Scarborough’s property and to the south of Rollins’s property, was
the boundary between the parties. Scarborough appeals from that judgment and asserts five issues:
I. The actual boundary line between Scarborough’s and Rollins’s property is the quarter section line between the Northwest quarter and the
3. Scarborough and Rollins are adjoining landowners in Oktibbeha County, Mississippi. Scarborough’s property is undeveloped and had been
previously used as a pasture. His property is approximately 4.5 acres. He purchased the property from Thurman and Mabel Ruth Betts. The
deed from the Bettses retained a permanent and perpetual easement for ingress and egress located in the north thirty-five feet of the
property.
4. Rollins’s property is approximately 2.88 acres. The Village Oaks apartment complex is located on her property. Prior to Rollins purchasing
the property, the Black family had owned the property since 1966. The apartments were already located on the land which Rollins purchased
prior to the time that Scarborough purchased his land.
5. Based upon her survey, Rollins believed that she owned a portion of the gravel road to the south of her apartment buildings. Rollins
testified that she claimed the apartments and yard up to the property line she was shown on her deed and that she had continuously
6. Rollins testified that she repaved the parking lot of the apartment complex to repair large holes caused by the city garbage trucks. When
Rollins found out that Scarborough owned the property to the south, she called him. Rollins testified that she told Scarborough that she knew
7. Scarborough testified that Rollins called him and said that she owned the apartments north of his property and asked him for permission to
8. In April 2004, Rollins installed culverts in the ditch north of the gravel road. She testified that John Black, owner of the easement over the
gravel road to the house west of Scarborough, told her she could use the gravel road.
9. In October 2005, Scarborough sent Rollins a letter. According to Rollins, the letter advised her that Scarborough wanted $200 per year for
10. The next month, in November 2005, Rollins received a phone call from her apartment manager saying that someone was at the back of
the apartment complex with a large truck and some machinery removing her culverts. Once the police arrived at the scene, the culverts were
already gone. The ground markers that were placed when Rollins bought the property were either no longer on the property or not visible.FN1
Rollins also asked surveyor A.L. Goodman III to recheck the property lines for her. Rollins also had surveyor Mike Brent survey the property.
11. Following the theft of the culverts, Rollins signed a criminal affidavit against Scarborough, and soon after, Scarborough was arrested for
grand larceny of the culverts. His criminal charge is currently pending in the Oktibbeha County Circuit Court. After his arrest, Scarborough
12. The chancery court determined that the gravel road was the boundary between the parties’ properties and that Rollins had proved by
clear and convincing evidence that she owns, by adverse possession or deed, all of the property north of the north boundary line of the gravel
drive and confirmed title to Rollins in that property. The chancery court confirmed title to Scarborough for the property south of the gravel
14. Scarborough alleges the chancery court erred in finding that the boundary line between Scarborough’s and Rollins’s properties is a gravel
road. He also alleges that the chancery court erred in finding that Rollins proved her claim of adverse possession. Scarborough claims that the
actual boundary line between his and Rollins’s properties is not the gravel road, but the quarter section line between the northwest quarter
and southwest quarter of section 10, Township 18 North, Range 14 East of Oktibbeha County, Mississippi.
15. Dr. King, the surveyor hired by Scarborough, surveyed the property several times. His survey descriptions differ slightly from the deed
description. As a result of Dr. King’s surveys, the descriptions in Scarborough’s complaint and in the evidence presented at trial vary somewhat
from Scarborough’s deed.
16. Scarborough’s property is bounded on the north, and Rollins’s property is bounded on the south by a road labeled “gravel drive” by Dr.
King. The road is approximately twenty-feet wide. The area in dispute is along the entire north line of Scarborough’s property and is about 611
feet east and west.
17. According to testimony by Dr. King, the most reliable monument he found was a two-inch galvanized post at the northwest corner of
Scarborough’s property. There was also a 5/8 inch rebar near this point. Dr. King further testified that even though there were a number of
18. Rollins had two surveyors survey the property-Goodman and Brent. Goodman’s survey did not show the gravel road or Scarborough’s
property; the chancery court did not find Goodman’s survey to be helpful. Goodman’s survey was prepared for Rollins’s loan closing.
19. Testimony was heard from several witnesses during the trial. H.D. Webb, Jr., a consultant with the city of Starkville, Mississippi and the
20. Black testified that he sold Rollins her property. Black stated that since 1966 until he sold the property to Rollins, his family used the north
line of the gravel road as their boundary line. He testified that the use of the property included mowing the grass, installing a gas line in the
ditch on the north side of the road, and paying taxes on the property. Black also testified that he has been familiar with the Scarborough
property since he was a child. He stated that there is a fence approximately four feet south of the gravel road and that horses grazed up to
that fence. He testified that he never saw any evidence of a fence north of the road. Black stated that he owned the house to the west of the
property and used the gravel road daily, and he stated that he never saw Scarborough use any property north of the gravel road.
21. Andy Fultz, a lifelong resident of Oktibbeha County, testified that he has been familiar with Rollins’s property since the apartments were
built. He stated that he mowed the grass on the property in the 1970s and 1980s. He testified that he always mowed the grass to the north
22. Scarborough testified that he purchased his property in 1976. According to Scarborough, he sometimes used the gravel road and
sometimes mowed the grass on the north side of the driveway with a bush hog. There was no evidence or testimony presented to corroborate
Scarborough’s testimony. A photograph showing the south portion of Rollins’s property and the north portion of Scarborough’s property was
presented to the chancery court. The property on the north side of the of the driveway appeared neatly groomed in the photograph and
contradicted Scarborough’s testimony that he used a bush hog to cut the grass. From the photograph, the south side of the road appears to
1. Under Claim of Ownership
25. The deed to Rollins’s property presented to the chancery court indicated that she owned the property at or near the disputed property.
Evidence was provided to show that Rollins and her predecessors–in-title paid the taxes on all of the property north of the gravel road.
However, Scarborough only paid taxes on the property that was south of the gravel road.
2. Actual or Hostile
26. Evidence was provided to the chancery court that for more than thirty-five years, no one other than Rollins and her predecessors–in-title,
the Blacks, used this property.
27. Black testified at trial that his family’s ownership of that land was open and obvious. He stated that everyone in Starkville, who was around
the apartments, knew that the apartment complex owned the yard up to the edge of the gravel road.
28. Testimony at trial from Black, Officer Fultz, and Goodman all provided that Rollins and her predecessors-in-title used the property for
more than thirty-five years.
29. Testimony at trial from Black indicated that no one, until Scarborough, claimed to have used any part of the property in dispute.
30. Rollins testified that until September 2007, she and her predecessors-in-title enjoyed peaceful possession of the property.
31. We find that Rollins satisfied the elements required for adverse possession; therefore, this issue is without merit.
III. Actual and Punitive Damages
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[6] 32. Scarborough alleges that the chancellor erred in finding that Rollins was entitled to an award of actual and punitive damages and
34. The chancery court properly held that the gravel road which is to the north of Scarborough’s property and to the south of Rollins’s
property was the boundary between the parties and that Rollins was entitled to an award of actual and punitive damages and attorney’s fees
due to the conversion of her property by Scarborough.
Case 50.3
125 S.Ct. 2655
Supreme Court of the United States
Susette KELO, et al., Petitioners,
v.
CITY OF NEW LONDON, CONNECTICUT, et al.
(Resp.Brief)2005 WL 353691 (Reply.Brief)
Justice delivered the opinion of the Court.
In 2000, the city of New London approved a development plan that, in the words of the Supreme Court of Connecticut, was “projected to
create in excess of 1,000 jobs, to increase tax and other revenues, and to revitalize an economically distressed city, including its downtown
and waterfront areas.” . In assembling the land needed for this project, the city’s development agent has purchased property from willing
its lowest since 1920.
These conditions prompted state and local officials to target New London, and *2659 particularly its Fort Trumbull area, for economic
revitalization. To this end, respondent New London Development Corporation (NLDC), a private nonprofit entity established some years
earlier to assist the City in planning economic development, was reactivated. In January 1998, the State authorized a $5.35 million bond issue
to support the NLDC’s planning activities and a $10 million bond issue toward the creation of a Fort Trumbull State Park. In February, the
The Fort Trumbull area is situated on a peninsula that juts into the Thames River. The area comprises approximately 115 privately owned
properties, as well as the 32 acres of land formerly occupied by the naval facility (Trumbull State Park now occupies 18 of those 32 acres).
The development plan encompasses seven parcels. Parcel 1 is designated for a waterfront conference hotel at the center of a “small urban
village” that will include restaurants and shopping. This parcel will also have marinas for both recreational and commercial uses. A
pedestrian “riverwalk” will originate here and continue down the coast, connecting the waterfront areas of the development. Parcel 2 will be
a 2.4-acre site that will be used either to support the adjacent state park, by providing parking or retail services for visitors, or to support the
nearby marina. Parcel 4B will include a renovated marina, as well as the final stretch of the riverwalk. Parcels 5, 6, and 7 will provide land for
*2660. The city council also authorized the NLDC to purchase property or to acquire property by exercising eminent domain in the City’s
name. § 8-193. The NLDC successfully negotiated the purchase of most of the real estate in the 90-acre area, but its negotiations with
petitioners failed. As a consequence, in November 2000, the NLDC initiated the condemnation proceedings that gave rise to this case.
In the remainder of the opinion we will differentiate between the City and the NLDC only where necessary.
II
Petitioner Susette Kelo has lived in the Fort Trumbull area since 1997. She has made extensive improvements to her house, which she prizes
for its water view. Petitioner Wilhelmina Dery was born in her Fort Trumbull house in 1918 and has lived there her entire life. Her husband
Charles (also a petitioner) has lived in the house since they married some 60 years ago. In all, the nine petitioners own 15 properties in Fort
Trumbull-4 in parcel 3 of the development plan and 11 in parcel 4A. Ten of the parcels are occupied by the owner or a family member; the
other five are held as investment properties. There is no allegation that any of these properties is blighted or otherwise in poor condition;
rather, they were condemned only because they happen to be located in the development area.
In December 2000, petitioners brought this action in the New London Superior Court. They claimed, among other things, that the taking of
their properties would violate the “public use” restriction in the Fifth Amendment. After a 7-day bench trial, the Superior Court granted a
permanent restraining order prohibiting the taking of the properties located in parcel 4A (park or marina support). It, however, denied
petitioners relief as to the properties located in parcel 3 (office space). 2 App. to Pet. for Cert. 343-350.
While this litigation was pending before the Superior Court, the NLDC announced that it would lease some of the parcels to private
developers in exchange for their agreement to develop the land according to the terms of the development plan. Specifically, the
NLDC was negotiating a 99-year ground lease with Corcoran Jennison, a developer selected from a group of applicants. The
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court held that such economic development qualified as a valid public use under both the Federal and State Constitutions. .
Finally, adhering to its precedents, the court went on to determine, first, whether the takings of the particular properties at issue were
“reasonably necessary” to achieving the City’s intended public use, and, second, whether the takings were for “reasonably*2661 foreseeable
needs,” The court upheld the trial court’s factual findings as to parcel 3, but reversed the trial court as to parcel 4A, agreeing with the City
III
Two polar propositions are perfectly clear. On the one hand, it has long been accepted that the sovereign may not take the property of A for
the sole purpose of transferring it to another private party B, even though A is paid just compensation. On the other hand, it is equally clear
that a State may transfer property from one private party to another if future “use by the public” is the purpose of the taking; the
condemnation of land for a railroad with common-carrier duties is a familiar example. Neither of these propositions, however, determines
the disposition of this case.
As for the first proposition, the City would no doubt be forbidden from taking petitioners’ land for the purpose of conferring a private benefit
on a particular private party. See (“A purely private taking could not withstand the scrutiny of the public use requirement; it would serve no
legitimate purpose of government and would thus be void”); . Nor would the City be allowed to take property under the mere pretext of a
public purpose, when its actual purpose was to bestow a private benefit. The takings before us, however, would be executed pursuant to a
“carefully considered” development plan. The trial judge and all the members of the Supreme Court of Connecticut agreed that there was
no evidence of an illegitimate purpose in this case. Therefore, as was true of the statute*2662 challenged in the City’s development plan was
not adopted “to benefit a particular class of identifiable individuals.”
See also (“An act of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be
considered a rightful exercise of legislative authority …. A few instances will suffice to explain what I mean … [A] law that takes
property from A. and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with such powers; and,
therefore, it cannot be presumed that they have done it. The genius, the nature, and the spirit, of our State Governments, amount
On the other hand, this is not a case in which the City is planning to open the condemned land-at least not in its entirety-to use by the general
public. Nor will the private lessees of the land in any sense be required to operate like common carriers, making their services available to all
comers. But although such a projected use would be sufficient to satisfy the public use requirement, this “Court long ago rejected any literal
requirement that condemned property be put into use for the general public.” Id., at 244, Indeed, while many state courts in the mid-19th
century endorsed “use by the public” as the proper definition of public use, that narrow view steadily eroded over time. Not only was the
“use by the public” test difficult to administer (e.g., what proportion of the public need have access to the property? at what price?), but it
proved to be impractical given the diverse and always evolving needs of society. Accordingly, when this Court began applying the Fifth
Amendment to the States at the close of the 19th century, it embraced the broader and more natural interpretation of public use as “public
purpose.” See, e.g., . Thus, in a case upholding a mining company’s use of an aerial bucket line to transport ore over property it did not own,
Justice Holmes’ opinion for the Court stressed “the inadequacy of use by the general public as a universal test.” *2663 . We have repeatedly
and consistently rejected that narrow test ever since.
See, e.g., (“If public occupation and enjoyment of the object for which land is to be condemned furnishes the only and true test for
the right of eminent domain, then the legislature would certainly have the constitutional authority to condemn the lands of any
private citizen for the purpose of building hotels and theaters. Why not? A hotel is used by the public as much as a railroad. The
CHAPTER 50: REAL PROPERTY AND LANDLORD-TENANT RELATIONSHIPS 805
collecting cases). For example, in rejecting the “use by the public” test as overly restrictive, the Nevada Supreme Court stressed
that “[m]ining is the greatest of the industrial pursuits in this state. All other interests are subservient to it. Our mountains are
almost barren of timber, and our valleys could never be made profitable for agricultural purposes except for the fact of a home
market having been created by the mining developments in different sections of the state. The mining and milling interests give
employment to many men, and the benefits derived from this business are distributed as much, and sometimes more, among the
The disposition of this case therefore turns on the question whether the City’s development plan serves a “public purpose.” Without
exception, our cases have defined that concept broadly, reflecting our longstanding policy of deference to legislative judgments in this field.
In , this Court upheld a redevelopment plan targeting a blighted area of Washington, D. C., in which most of the housing for the area’s 5,000
inhabitants was beyond repair. Under the plan, the area would be condemned and part of it utilized for the construction of streets, schools,
and other public facilities. The remainder of the land would be leased or sold to private parties for the purpose of redevelopment, including
the construction of low-cost housing.
The owner of a department store located in the area challenged the condemnation, pointing out that his store was not itself blighted and
arguing that the creation of a “better balanced, more attractive community” was not a valid public use. Writing for a unanimous Court,
Justice Douglas refused to evaluate this claim in isolation, deferring instead to the legislative and agency judgment that the area “must be
planned as a whole” for the plan to be successful. The Court explained that “community redevelopment programs need not, by force of the
Constitution, be on a piecemeal basis-lot by lot, building by building.” The public use underlying the taking was unequivocally affirmed:
“We do not sit to determine whether a particular housing project is or is not desirable. The concept of the public welfare is broad and
inclusive …. The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to
determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled.
In the present case, the Congress and its authorized agencies have made determinations that take into account a wide variety of values. It is
not for us to reappraise them. If those who govern the District of Columbia decide that the Nation’s Capital should be beautiful as well as
sanitary, there is nothing in the Fifth Amendment that stands in the way.” .
In , the Court considered a Hawaii statute whereby fee title was taken from lessors and transferred to lessees (for just compensation) in order
to reduce the concentration of land ownership. We unanimously upheld the statute and rejected the Ninth Circuit’s view that it was “a naked
attempt on the part of the state of Hawaii to take the property of A and *2664 transfer it to B solely for B’s private use and benefit.” (internal
quotation marks omitted). Reaffirming Berman’s deferential approach to legislative judgments in this field, we concluded that the State’s
purpose of eliminating the “social and economic evils of a land oligopoly” qualified as a valid public use. Our opinion also rejected the
contention that the mere fact that the State immediately transferred the properties to private individuals upon condemnation somehow
diminished the public character of the taking. “[I]t is only the taking’s purpose, and not its mechanics,” we explained, that matters in
determining public use. .
See also (“In the opinion of the legislature and the Supreme Court of Utah the public welfare of that State demands that aerial
lines between the mines upon its mountain sides and railways in the valleys below should not be made impossible by the refusal of a
private owner to sell the right to cross his land. The Constitution of the United States does not require us to say that they are
wrong”); (“States may take account of their special exigencies, and when the extent of their arid or wet lands is such that a plan for
irrigation or reclamation according to districts may fairly be regarded as one which promotes the public interest, there is nothing in
the Federal Constitution which denies to them the right to formulate this policy or to exercise the power of eminent domain in
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carrying it into effect. With the local situation the state court is peculiarly familiar and its judgment is entitled to the highest
respect”).
IV
Those who govern the City were not confronted with the need to remove blight *2665 in the Fort Trumbull area, but their determination that
the area was sufficiently distressed to justify a program of economic rejuvenation is entitled to our deference. The City has carefully
formulated an economic development plan that it believes will provide appreciable benefits to the community, including-but by no means
limited to-new jobs and increased tax revenue. As with other exercises in urban planning and development, the City is endeavoring to
coordinate a variety of commercial, residential, and recreational uses of land, with the hope that they will form a whole greater than the sum
of its parts. To effectuate this plan, the City has invoked a state statute that specifically authorizes the use of eminent domain to promote
economic development. Given the comprehensive character of the plan, the thorough deliberation that preceded its adoption, and the
limited scope of our review, it is appropriate for us, as it was in Berman, to resolve the challenges of the individual owners, not on a piecemeal
basis, but rather in light of the entire plan. Because that plan unquestionably serves a public purpose, the takings challenged here satisfy the
public use requirement of the Fifth Amendment.
It is a misreading of Berman to suggest that the only public use upheld in that case was the initial removal of blight. See Reply Brief
for Petitioners 8. The public use described in Berman extended beyond that to encompass the purpose of developing that area to
create conditions that would prevent a reversion to blight in the future. See (“It was not enough, [the experts] believed, to remove
existing buildings that were insanitary or unsightly. It was important to redesign the whole area so as to eliminate the conditions
that cause slums…. The entire area needed redesigning so that a balanced, integrated plan could be developed for the region,
including not only new homes, but also schools, churches, parks, streets, and shopping centers. In this way it was hoped that the
cycle of decay of the area could be controlled and the birth of future slums prevented”). Had the public use in Berman been
defined more narrowly, it would have been difficult to justify the taking of the plaintiff’s nonblighted department store.
Petitioners contend that using eminent domain for economic development impermissibly blurs the boundary between public and private
takings. Again, our cases foreclose this objection. Quite simply, the government’s pursuit of a public purpose will often benefit individual
private parties. For example, in Midkiff, the forced transfer of property conferred a direct and significant benefit on those lessees who were
previously unable to purchase their homes. In Monsanto, we recognized that the “most direct beneficiaries” of the data-sharing provisions
Any number of cases illustrate that the achievement of a public good often coincides with the immediate benefiting of private
parties. See, e.g., (public purpose of “facilitating Amtrak’s rail service” served by taking rail track from one private company and
transferring it to another private company); (provision of legal services to the poor is a valid public purpose). It is worth noting
that in , Monsanto, and Boston & Maine Corp., the property in question retained the same use even after the change of ownership.
Notably, as in the instant case, the private developers in Berman were required by contract to use the property to carry out the
redevelopment plan. See .
Nor do our cases support Justice O’CONNOR’s novel theory that the government may only take property and transfer it to private
parties when the initial taking eliminates some “harmful property use.” Post, at 2675 (dissenting opinion). There was nothing
“harmful” about the nonblighted department store at issue in see also n. 13, supra; nothing “harmful” about the lands at issue in
the mining and agriculture cases, see, e.g., see also nn. 9, 11, supra; and certainly nothing “harmful” about the trade secrets
owned by the pesticide manufacturers in In each case, the public purpose we upheld depended on a private party’s future use of
the concededly nonharmful property that was taken. By focusing on a property’s future use, as opposed to its past use, our cases
are faithful to the text of the Takings Clause. See U.S. Const., Amdt. 5. (“[N]or shall private property be taken for public use,
CHAPTER 50: REAL PROPERTY AND LANDLORD-TENANT RELATIONSHIPS 807
without just compensation”). Justice O’CONNOR’s intimation that a “public purpose” may not be achieved by the action of private
parties, see post, at 2675, confuses the purpose of a taking with its mechanics, a mistake we warned of in See also (“The public
end may be as well or better served through an agency of private enterprise than through a department of government”).
It is further argued that without a bright-line rule nothing would stop a city from transferring citizen A‘s property to citizen B for the sole
reason that citizen B will put the property to a more productive *2667 use and thus pay more taxes. Such a one-to-one transfer of property,
executed outside the confines of an integrated development plan, is not presented in this case. While such an unusual exercise of
government power would certainly raise a suspicion that a private purpose was afoot, the hypothetical cases posited by petitioners can be
confronted if and when they arise. They do not warrant the crafting of an artificial restriction on the concept of public use.
Courts have viewed such aberrations with a skeptical eye. See, e.g., ; cf. (taking invalid under state eminent domain statute for
lack of a reasoned explanation). These types of takings may also implicate other constitutional guarantees. See (per curiam).
Cf. (Holmes, J., dissenting) (“The power to tax is not the power to destroy while this Court sits”).
A parade of horribles is especially unpersuasive in this context, since the Takings Clause largely “operates as a conditional limitation,
permitting the government to do what it wants so long as it pays the charge.” (KENNEDY, J., concurring in judgment and dissenting
Alternatively, petitioners maintain that for takings of this kind we should require a “reasonable certainty” that the expected public benefits
will actually accrue. Such a rule, however, would represent an even greater departure from our precedent. “When the legislature’s purpose
is legitimate and its means are not irrational, our cases make clear that empirical debates over the wisdom of takings-no less than debates
over the wisdom of other kinds of socioeconomic legislation-are not to be carried out in the federal courts.” . Indeed, earlier this Term we
explained why similar practical concerns (among others) undermined the use of the “substantially advances” formula in our regulatory takings
doctrine. See (noting that this formula “would empower-and might often require-courts to substitute their predictive judgments for those of
elected legislatures and expert agencies”). *2668 The disadvantages of a heightened form of review are especially pronounced in this type of
case. Orderly implementation of a comprehensive redevelopment plan obviously requires that the legal rights of all interested parties be
established before new construction can be commenced. A constitutional rule that required postponement of the judicial approval of every
condemnation until the likelihood of success of the plan had been assured would unquestionably impose a significant impediment to the
successful consummation of many such plans.
See also (“[W]e need not make a specific factual determination whether the condemnation will accomplish its objectives”);
(“Monsanto argues that EPA and, by implication, Congress, misapprehended the true ‘barriers to entry’ in the pesticide industry and
that the challenged provisions of the law create, rather than reduce, barriers to entry …. Such economic arguments are better
directed to Congress. The proper inquiry before this Court is not whether the provisions in fact will accomplish their stated
objectives. Our review is limited to determining that the purpose is legitimate and that Congress rationally could have believed that
the provisions would promote that objective”).
In affirming the City’s authority to take petitioners’ properties, we do not minimize the hardship that condemnations may entail,
notwithstanding the payment of just compensation. We emphasize that nothing in our opinion precludes any State from placing further
restrictions on its exercise of the takings power. Indeed, many States already impose “public use” requirements that are stricter than the
federal baseline. Some of these requirements have been established as a matter of state constitutional law, while others are expressed in
state eminent domain statutes that carefully limit the grounds upon which takings may be exercised. As the submissions of the parties and
their amici make clear, the necessity and wisdom of using eminent domain to promote economic development are certainly matters of
legitimate public debate. This Court’s authority, however, extends only to determining whether the City’s proposed condemnations are for a
“public use” within the meaning of the Fifth Amendment to the Federal Constitution. Because over a century of our case law interpreting
that provision dictates an affirmative answer to that question, we may not grant petitioners the relief that they seek.