Identifying a meaningful distinction between common law torts and constitutional takings is a task that has evaded courts for the last hundred years. Courts struggle to distinguish between these two remunerative remedies because both frequently arise under similar circumstances. Nonetheless, this article will show that the theoretical underpinnings of the Fifth Amendment are such that a plaintiff will only rarely suffer both a compensable taking and a tort. The article will posit that the primary difference between a tort and a taking is that the latter must be authorized. As a result, this article will focus on the authority requirement of the Fifth Amendment's Just Compensation Clause.
The Fifth Amendment provides that "private property [shall not] be taken for public use, without just compensation." (1) When the government takes property it may either affirmatively take the property, thereby exercising its power of eminent domain, or it may enact legislation or otherwise have its agents engage in conduct that effectively takes the property. This is called inverse condemnation. The Supreme Court has recognized that the government can inversely condemn property by means of a physical invasion (2) or by enacting an overreaching regulation. (3) Nevertheless, the government and its agents often engage in tortious conduct that is not tantamount to a constitutional taking. Although private parties can and do engage in tortious conduct against other private parties, their conduct cannot arise to the level of a constitutional violation. Just as a private individual can accidentally flood adjacent land, so too can the government. Similarly, government agents trespass on private property just as private actors trespass. Further, both private and public officials can act negligently. Although the legal remedy against the private party lies in tort, the government may be liable either under a tort theory or the Fifth Amendment's Just Compensation Clause. The victim of a government-induced wrong faces just that question--was his property tortiously destroyed or taken for purposes of the Fifth Amendment.
The first part of this article will examine the unique aspects of litigating against the government. Unlike a lawsuit filed against a private party, someone whose property was destroyed by government action may not plead tort and taking in his initial complaint. Rather, the property owner must pursue each theory in a different forum. These unique procedural hurdles stymie aggrieved plaintiffs.
Next, this article will examine when wrongful conduct by the government can be a taking. Specifically, this article will focus on the authorization requirement of the Fifth Amendment. In doing so, it will identify exactly what constitutes ultra vires--unauthorized--governmental action, and then differentiate between ultra vires conduct and authorized but illegal conduct.
The final two sections of this article will address the doctrinal differences between torts and takings. This article will compare the "natural and probable consequences" test with the concept of "proximate cause." In doing so, this article will show how most courts have followed a rule that only damage that occurs as a direct and certain result of governmental action can be a taking. This article will also examine how the courts, with few exceptions, have dismissed taking claims when the government's conduct arose out of mere negligence. Because courts require that a taking be intentional, the only overlap in this area is between intentional torts and takings. The final section of this article will focus on one distinction that courts have made between intentional torts and takings. Specifically, this article will explain how the courts have found that the more likely the event is to reoccur and the more substantial the damage, the more likely it will be a taking, not a tort. In sum, this article will clarify the overlap between torts and takings. …