Eminent domain is a term used to describe the power of a state or the federal government to take possession and title to private property for public use. Milling attorneys have been involved in many aspects of eminent domain law, particularly in litigation, often representing private property owners. At other times, Milling attorneys have also represented utility companies which are delegated expropriation powers by the legislature for acquisition of private property for energy or pipeline installation projects. In still other situations, Milling attorneys have defended governmental entities in takings litigation.
On the one side of the eminent domain “coin” are expropriation and appropriation, which involve the formal “taking” of private property through litigation in a public proceeding. The latter term, appropriation, is a purely Louisiana concept, involving the enforcement or taking of a servitude on private property to construct levees for the benefit of the public, which is subject to its own statutory scheme.
Generally, while property may be taken through expropriation, “just compensation” must be paid to the private property owner as required under the Fifth Amendment to the United States Constitution and Article IV, sec. 1 of the Louisiana Constitution. Under the Louisiana law, an owner shall be compensated for property “taken or damaged . . . to the full extent of his loss”, except in appropriation for levees or expropriation for coastal restoration projects, which require only compensation based upon fair market value as with federal law. There is also a claim for severance damages recognized under both federal and Louisiana law where devaluation of property remaining with the claimant occurs as a result of the government’s expropriation of the balance of its parcel.
The other side of the expropriation “coin” is inverse condemnation, a claim or cause of action which arises when the government takes property but never institutes a formal proceeding for that taking. Significantly, Milling attorneys successfully defended the largest inverse condemnation litigation ($2 billion) in state (if not U.S.) history. In these situations, such takings usually assume the form of a physical or categorical taking or “taking per se”, often involving an actual physical invasion of property. At other times, there may be a regulatory taking where “compensation may be required when a government regulation of private property is so onerous that its effect is tantamount to a direct appropriation or ouster.” It is now hornbook law that any substantial interference with the free use and enjoyment of property may constitute a taking of property within the meaning of federal and state constitutions. Yet, private property owners must still tolerate inconvenience for the valid exercise of the government’s police power, i.e., necessary action for the benefit of the public’s health, safety and welfare. “The [regulatory or] police power, unlike the power of eminent domain, is used to regulate; the power of eminent domain [is] used to acquire property from private ownership.”
Another related claim or cause of action under Louisiana law is for damage to property which is not actually taken but “damaged in a constitutional sense,” so as to still require compensation. Whether such a claim is available is determined by application of the analogous civil law concept of vicinage, the obligations owed between neighbors as expressed in La. Civ. Code art.’s 667-669. The test is whether the challenged governmental activity resulted in mere inconveniences that must be tolerated by the claimant under the police power or by analogy, Article 668, or, rather, resulted in more serious inconveniences or interference that may be suppressed under Article 667.
In Louisiana, it is critical to know the difference between the two because of prescription (Louisiana’s civil law equivalent to a statute of limitations), since a claim for a taking or inverse condemnation has a three-year prescriptive period, while the action for damages alone has a two-year prescriptive period.
One type of scenario that continues to arise in takings litigation is where private property is taken for a state or local government’s planned economic development purposes. Here in Louisiana, this is most often associated with the creation or expansion of ports along the Mississippi River and elsewhere. It does not include the power to take and transfer ownership of private property from one property owner to another individual private property owner without a valid public purpose. But the government may take property as part of a development plan for an area to be benefited generally.
This issue arose in a Connecticut case, Kelo v. City of New London, which eventually came before the U.S. Supreme Court. The City of Bridgeport expropriated an entire neighborhood which had scenic views of a nearby river to allow for private companies to develop and expand their businesses so as to create job opportunities. The question was whether a city violates the Fifth Amendment’s takings clause if the city takes private property and sells it for private development, so as to help revive a city’s bad economy. The Supreme Court held that the city’s taking of private property to sell for private development qualified as a “public use” within the meaning of the takings clause because it was following an economic development plan. Sadly, the development never occurred. This issue will undoubtedly arise at some point in Louisiana.
“The property of subjects is under the eminent domain of the state, so that the state or those who act for it may use and even alienate and destroy such property, not only in the case of extreme necessity, in which even private persons have a right over the property of others, but for ends of public utility, to which ends those who founded civil society must be supposed to have intended that private ends should give way. But, when this is done, the state is bound to make good the loss to those who lose their property.” De jure belli ac pacis (On the Law of War and Peace), by Hugo Grotius in (1625), as sourced by Nowak, John E.; Rotunda, Ronald D. (2004). Constitutional Law (Seventh ed.). St. Paul, MN: Thomson West. p. 263. ISBN 0-314-14452-8.
 La. R.S. 38:301 et seq.
 La. Const. Art. I, sec. 4, (E) & (F)
 Nichols, Eminent Domain, §§ 6.01, 6.09 (3d ed. 1991)
 Dep’t of Highways v. Southwestern Elec. Power Co., 145 So.2d 312, 315-16, 243 LA. 564 (1962) (footnote omitted).
 La. R.S. 13:5111
 La. R.S. 9:5624.