The Path Not Taken in Federal Takings Law 

Students of property are familiar with the U.S. Supreme Court’s controversial holding in Kelo v. City of New London, which rejected a challenge to Connecticut’s use of eminent domain to clear out a working-class neighborhood for a private redevelopment scheme. But there is a less-studied state constitutional wrinkle to the takings debate: Some state constitutions seem to authorize takings for certain, limited private uses. These clauses shed light on a path the Court could have taken in Kelo — and could offer a new way to think about takings today. 

States Depart from Federal Takings Law

Kelo is infamous in both property and state constitutional law circles. Decided in 2005, the Court in Kelo held that “private ‘economic development’ is enough to satisfy the Fifth Amendment requirement that the government can only condemn property for a ‘public use,’” professor Ilya Somin has explained. The planned development never materialized: “For many years, the condemned property 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 independent state constitutional interpretation and others by amending their state constitutions.

But even before the Kelo backlash, some state constitutions seemingly departed from the federal takings clause. The constitutions of multiple states contain language, dating back to the 19th century, specifying circumstances under which takings for private use are permissible. To give an example of one of these “private use” provisions, here’s Colorado’s:

Private property shall not be taken for private use unless by consent of the owner, except for private ways of necessity, and except for reservoirs, drains, flumes or ditches on or across the lands of others, for agricultural, mining, milling, domestic or sanitary purposes.

The provision starts as a ban on takings for private use — making explicit what the federal takings clause prohibits — but then carves out exceptions. What are the origins of this and similar provisions in other constitutions? And what is their place in the development of eminent domain law prior to Kelo?

Constitutional conventions, where these provisions were adopted, provide some insight, and two things stand out from the debates over takings for private use. First, they vividly illustrate how live these questions were in the 19th century, with some states adopting and others rejecting the idea that takings for private use could be legitimized consistent with federal or other law. Second, the private-use debates make plain a potentially interesting path not taken in Kelo: Many delegates saw “necessity” as an acceptable way of separating abuses of the eminent domain power from those truly in the public interest. While they had different views about what exactly that meant, they repeatedly discussed necessity as the touchstone for understanding when eminent domain could be used to benefit a private party.

History of “Public Use”

Private-use provisions fit into the familiar history of eminent domain, the term for the government’s power to take private property for public use. The majority opinion in Kelo, authored by Justice John Paul Stevens, described that history this way: Many 19th century courts interpreted “public use” narrowly, as something like “use by the public” — authorizing eminent domain for roads, bridges, and maybe canals. Over time, state and federal courts broadened that concept into “public purpose,” upholding condemnations that transferred property from one private party to another so long as the public arguably benefited, setting the stage for Kelo itself.

To understand how the private-use provisions fit in, Somin’s book, The Grasping Hand, looks at 19th-century state judicial decisions involving eminent domain to show that the march from “use by the public” to “public purpose” is not as linear or neat as Kelo suggests. The private-use debates illustrate the same.

To see what the difference between “use by the public” and “public purpose” looked like on the ground, consider one of the problems motivating the private-use provisions: swampland. In several states, a single owner with substantial land could block a huge swath of farmland from being drained. If that owner refused to sell an easement for a ditch, whether out of spite or by demanding an unreasonable sum, thousands of acres might remain flooded and unusable. Would it be a public use to condemn an easement so the flooded farmers could drain their land? Or an impermissible private taking?

Nineteenth century courts reached different conclusions, depending on whether they viewed “public use” as “use by the public” or “public purpose.” Some treated condemnation for a ditch as serving a public use because it supported farming, and thus agriculture and industry. Others saw it as condemnation for purely private benefit, with the public interest too diffuse or indirect to qualify — the ditch, after all, would not be open to or used by everyone.

Constitutional Controversies

This uncertainty led drafters of post–Civil War state constitutions to spell out narrow categories where arguably private condemnations ought to be permitted. The idea was to acknowledge that some projects, while formally private, had such substantial and beneficial effects that they warranted treatment as public uses. But the convention debates show how controversial that move was.

In California, for instance, delegates ultimately rejected language like Colorado’s because they worried that explicitly authorizing private-use takings — however cabined — would erode basic protections for property owners. Some argued that the clause violated fundamental law about eminent domain, and others questioned whether the state could, consistent with federal law, bless condemnations that so clearly singled out and benefited particular landowners or corporations. (The specter of powerful water companies loomed large.)

In other states, like Idaho, the debate looked similar, but the other side won. Idaho delegates did not deny that the immediate beneficiary of a ditch might be a single landowner or mining operation. But they emphasized that without some way to cross another’s land, the underlying resource — whether water or minerals — would be effectively stranded. In that sense, the projects were public in a broader, functional way: They unlocked economic activity and settlement that otherwise would not occur.

It was mostly western states that took up private-use provisions, though unevenly. Earlier versions of private-use language appeared in a handful of eastern and midwestern states in the 1860s and 1870s, often motivated by drainage concerns. Later, states like Colorado, Idaho, Montana, Washington, and Wyoming adopted provisions that expanded or refined the categories of permitted uses, while others, like California and Utah, rejected them outright. This hardly looks like an inevitable march toward Kelo, but it is consistent with other evidence that “public use” was highly contested during the period. In Idaho, for instance, debate over the private-use language alone runs over 100 pages — about 5 percent of the overall published record.

These records contain some delightful tidbits. The delegates’ attitudes toward the federal Constitution, and their understanding of federal constitutional law, are fascinating. My recent paper, published as part of a Yale Journal on Regulation symposium commemorating the 20th anniversary of Kelo, explores several examples of these provisions.

A personal favorite comes from Montana in 1889, where a delegate asserted that the private-use provision under debate “is in violation of the Constitution of the United States,” but that they ought to do it anyway. (So much for supremacy, I guess.) More generally, the delegates’ discussions show how much legal knowledge differed from convention to convention. Some state conventions were dominated by farmers or others without legal training. In the private-use debates, some farmers express humility in trying to understand law or criticizing its injustice.

The Importance of Necessity

The private-use debates also illustrate the centrality of necessity to how delegates understood the line between permissible and impermissible takings. Because I am a property professor, here I will traumatize you by bringing up a chestnut from the first-year course: the old easement by necessity, which has deep common law roots. Courts universally find that an owner whose parcel is landlocked has a right-of-way to reach a street. This easement figured prominently in several debates. If a party truly needs a right-of-way to make use of land, they ought to have it, several delegates reasoned, pointing to the private-use categories as a logical extension of that principle.

Necessity was discussed frequently at conventions, and it occasionally made its way into constitutional text, as well as in contemporary cases. Take an 1876 decision in Nevada, Dayton Gold & Silver Mining Company v. Seawell, which was discussed in Montana and Utah’s conventions, and also in the Kelo opinions. The Dayton court sustained a taking for transporting minerals over private property because it was necessary in that location to make any use of the minerals. It contrasted that with using eminent domain for something like “hotels and theaters,” which could be put anywhere. Dayton put it this way: “The object for which private property is to be taken must not only be of great public benefit and for the paramount interest of the community, but the necessity must exist for the exercise of the right of eminent domain.” This is suggestive of a different approach to eminent domain than the one taken by the U.S. Supreme Court in Kelo, which emphasized only the plausibility of public benefit from, and not the absolute need for, the condemnation.

Although the Supreme Court will perhaps not revisit Kelo in the immediate future, the concept of necessity is starting to appear elsewhere in eminent domain law. Necessity has been discussed in major decisions involving limits on government power to authorize access to property or to cause damage to property during police activity. While we can certainly debate what exactly necessity means or how it is proven, the state constitutional record makes clear that most delegates thought it was an important piece of what rendered takings benefitting private parties legally permissible. The private-use debates thus offer this promising lens for thinking about public use today and in the next wave of takings debates.

Maureen (Molly) E. Brady is the Louis D. Brandeis Professor of Law at Harvard Law School.

Suggested Citation: Maureen E. Brady, The Path Not Taken in Federal Takings Law, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Jan. 26, 2026), https://statecourtreport.org/our-work/analysis-opinion/path-not-taken-federal-takings-law