Eminent Domain in Property Law

Eminent Domain

1. What Is Eminent Domain?

Eminent domain is the government’s power to take private property for a public use, subject to the constitutional requirement that the property owner receive just compensation.

In the United States, the constitutional foundation for eminent domain is the Fifth Amendment, which provides that private property shall not be taken for public use without just compensation.

The basic principle is simple:

The government can require a private owner to give up property for a legitimate public purpose, but it generally must pay for what it takes.

Eminent domain therefore represents an important qualification to the concept of private ownership.

Property law gives owners extensive rights to:

• possess property;
• use property;
• exclude others;
• transfer property;
• earn income from property.

But ownership is not absolute.

The government possesses certain powers that can override private property rights when legal requirements are satisfied.

Eminent domain is one of those powers.

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2. The Constitutional Foundation

The principal constitutional limitation appears in the Takings Clause of the Fifth Amendment:

“nor shall private property be taken for public use, without just compensation.”

This short provision contains several important ideas:

1. There must be a taking of property.
2. The taking must satisfy the requirement of public use.
3. The owner must generally receive just compensation.

The Takings Clause therefore does not simply prohibit government takings.

Instead, it establishes constitutional conditions under which a taking may occur.

The government may take private property, but it cannot ordinarily do so without satisfying the constitutional requirements.

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3. Eminent Domain Versus Condemnation

The terms eminent domain and condemnation are closely related but should be distinguished.

Eminent domain

The government’s power to take private property for a qualifying public purpose.

Condemnation

The legal process through which the government exercises that power against particular property.

For example:

The government has eminent-domain authority.

It may then initiate a condemnation proceeding to acquire a particular parcel of land.

The distinction is similar to the difference between having a legal power and exercising that power through a legal procedure.

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4. Who Can Exercise Eminent Domain?

The power of eminent domain belongs fundamentally to government.

Depending on applicable law, it may be exercised by:

• the federal government;
• states;
• counties;
• cities;
• municipalities;
• public authorities;
• other governmental entities.

In some circumstances, legislatures may also authorize certain private or quasi-public entities to exercise condemnation powers for recognized public purposes.

Examples can include certain:

• utilities;
• transportation authorities;
• pipeline companies;
• public infrastructure entities.

But the authority must come from law.

A private party cannot simply declare that it has eminent-domain power.

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5. What Property Can Be Taken?

Eminent domain is most commonly associated with real property, but the constitutional concept of property is broader.

Government action can potentially affect:

• land;
• buildings;
• easements;
• leasehold interests;
• mineral interests;
• access rights;
• other recognized property interests.

The exact property interest taken must be identified.

For example, the government may not need to acquire an entire parcel to construct a highway.

It might acquire only:

• a strip of land;
• an easement;
• a temporary construction interest;
• access rights.

The scope of the taking matters because compensation generally depends on what property interest has actually been acquired or destroyed.

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6. Why Does Eminent Domain Exist?

Eminent domain exists because certain projects cannot realistically be completed through voluntary purchases alone.

Imagine a government wants to construct a highway connecting two cities.

The planned route crosses 200 parcels.

If 199 owners agree to sell but one owner refuses, the entire project could potentially be blocked if the government had no compulsory acquisition power.

Eminent domain allows the government, when legal requirements are satisfied, to acquire the necessary property despite an owner’s refusal.

The rationale is that some projects serve collective needs that cannot depend entirely on unanimous private consent.

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7. Public Use

The Constitution requires property to be taken for public use.

The meaning of public use has developed significantly over time.

At the narrowest level, public use might mean actual use by the public.

Examples include:

• highways;
• public schools;
• courthouses;
• government buildings;
• public parks;
• public transportation.

Modern constitutional doctrine has generally interpreted public use more broadly, often in terms of public purpose.

This distinction became particularly important in economic-development cases.

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8. Public Use and Public Purpose

The Supreme Court has recognized that a taking can satisfy the public-use requirement even when the public does not literally use the property itself.

For example, government may take property as part of a broader redevelopment program designed to address:

• economic decline;
• blight;
• urban deterioration;
• redevelopment needs.

The key constitutional question can therefore become whether the taking serves a legitimate public purpose, rather than whether members of the public will physically enter or use the property.

This broader interpretation has generated substantial controversy.

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9. Kelo v. City of New London

One of the most famous eminent-domain cases is Kelo v. City of New London, decided by the U.S. Supreme Court in 2005.

The city sought to acquire private property as part of an economic-development plan.

The property owners argued that taking their property for redevelopment by private parties did not constitute a constitutional public use.

The Supreme Court held that economic development could qualify as a public use under the Fifth Amendment when it formed part of a comprehensive development plan.

The decision was highly controversial.

It triggered significant political and legislative responses, with many states changing their eminent-domain laws to impose greater restrictions on economic-development takings.

The case demonstrates that the constitutional meaning of public use does not necessarily require the government itself to become the ultimate user of the property.

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10. The Public-Use Requirement Is Still a Limitation

The broad interpretation of public use does not mean the government can take property for any reason.

A taking cannot simply be justified by saying:

“The government wants this property.”

There must be a legally sufficient public purpose.

Courts may examine:

• the government’s stated purpose;
• the statutory authority;
• the relationship between the taking and the public objective;
• the structure of the government program;
• whether the asserted public purpose is genuine.

The public-use requirement therefore remains a constitutional limitation, even though it is interpreted broadly.

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11. Just Compensation

The second major constitutional requirement is just compensation.

When the government takes private property for public use, it generally must compensate the owner.

The central question becomes:

How much must the government pay?

The usual starting point is fair market value.

Fair market value generally refers to the price the property would command in an open market under appropriate conditions.

But calculating compensation can be complicated.

The government may be taking:

• an entire parcel;
• part of a parcel;
• an easement;
• a leasehold;
• a temporary interest.

Different valuation rules can apply.

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12. Fair Market Value

Suppose the government acquires a house and the surrounding land.

Before the taking, the property is worth $500,000.

If the government takes the entire property, compensation will generally be based on the legally appropriate measure of the property’s value.

But suppose the government takes only part of the land.

The calculation may instead involve:

Value before taking − value after taking

This can capture the loss suffered by the owner because of the partial acquisition.

The actual valuation rules depend on the jurisdiction and the nature of the property.

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13. Partial Takings

The government does not always need to take an entire parcel.

Suppose Maria owns a 10-acre property.

The government needs two acres to widen a highway.

It condemns those two acres.

Maria retains eight acres.

This is a partial taking.

The valuation question becomes more complex because the government has acquired only part of the property.

The remaining property may also become less valuable because of:

• reduced access;
• increased traffic;
• altered shape;
• noise;
• loss of parking;
• changed development potential.

These effects may influence compensation depending on applicable law.

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14. Severance Damages

When the government takes part of a larger property, the remaining property may suffer a reduction in value.

This can give rise to severance damages in jurisdictions that recognize them.

For example:

Before taking:

Property value = $1,000,000

Government takes part of the property.

Value of remainder after taking = $700,000.

The legal compensation calculation may consider not only the value of the land actually taken but also legally compensable damage to the remainder.

This illustrates why eminent-domain valuation is often more sophisticated than simply determining the market value of the land physically acquired.

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15. Consequential Damages

Not every economic consequence of government activity necessarily constitutes compensable property damage.

For example, a new highway may:

• increase traffic;
• create noise;
• change neighborhood conditions;
• reduce convenience;
• alter surrounding development.

Whether those effects are compensable depends on applicable constitutional and statutory law.

The important distinction is between:

property that has been taken or legally damaged

and

general disadvantages resulting from government activity.

Not every reduction in economic value is automatically a compensable taking.

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16. Temporary Takings

Government action can sometimes interfere with property for a limited period rather than permanently acquiring it.

For example, the government might:

• occupy land temporarily;
• flood property;
• impose a temporary physical occupation;
• use property for construction.

Temporary government occupation can raise constitutional takings questions.

The fact that the government eventually returns the property does not automatically eliminate the possibility of compensation.

Duration, physical occupation, economic impact, and other circumstances can matter.

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17. Physical Takings

A physical taking occurs when the government physically acquires or occupies private property.

The classic example is:

Government takes a strip of someone’s land to construct a highway.

Another example could involve a government-authorized permanent physical occupation.

Physical takings receive particularly strong constitutional protection because the government has directly appropriated a property interest.

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18. Regulatory Takings

Eminent domain is not limited to physical acquisition.

Government regulation can sometimes go so far in restricting property use that it constitutes a regulatory taking.

The government may not physically take the land.

Instead, a regulation may substantially restrict:

• development;
• use;
• economic value;
• access;
• other property rights.

The Supreme Court has developed a separate body of doctrine addressing these situations.

Regulatory takings therefore connect eminent domain with constitutional land-use regulation.

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19. Lucas and Total Deprivation

In Lucas v. South Carolina Coastal Council, the Supreme Court addressed a regulation that deprived beachfront property of all economically beneficial use, subject to the recognized background principles of state property and nuisance law.

The Court treated a regulation that completely deprives property of economically beneficial use as presumptively requiring compensation, subject to important exceptions.

The case illustrates an important constitutional principle:

Government regulation can sometimes become so severe that it is treated as the equivalent of a taking.

But total deprivation is not the only category of regulatory taking.

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20. Penn Central and Partial Regulatory Restrictions

Most regulatory-taking disputes do not involve complete elimination of economic value.

Instead, the government may restrict some uses while leaving the property economically valuable.

The leading framework comes from Penn Central Transportation Co. v. New York City.

Courts commonly consider factors including:

• the economic impact of the regulation;
• the extent to which the regulation interferes with investment-backed expectations;
• the character of the government action.

This makes many regulatory-taking cases highly fact-specific.

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21. Eminent Domain and the Right to Exclude

The right to exclude is one of the central incidents of property ownership.

Ordinarily, an owner can prevent others from entering the property.

Eminent domain represents a significant exception.

The government can sometimes compel the owner to surrender possession or an interest in the property even though the owner does not consent.

But the government must satisfy the legal requirements governing the taking.

Thus:

The right to exclude is powerful, but it is not absolute against the sovereign’s lawful eminent-domain power.

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22. Eminent Domain and Police Power

Eminent domain should be distinguished from the police power.

Eminent domain

The government takes or appropriates a property interest and generally must provide just compensation when the constitutional Takings Clause applies.

Police power

The government regulates property to protect public health, safety, welfare, and other legitimate public interests.

Examples of police-power regulation include:

• zoning;
• building codes;
• health regulations;
• environmental restrictions;
• safety requirements.

A regulation does not automatically become an eminent-domain taking simply because it reduces property value.

The constitutional analysis depends on the nature and severity of the government action.

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23. Eminent Domain and Taxation

Taxation is another sovereign power that must be distinguished from eminent domain.

The government can impose taxes on property.

A property tax does not ordinarily constitute an eminent-domain taking simply because the owner must pay money.

The legal foundations are different.

Similarly:

• taxation concerns revenue;
• police power concerns regulation;
• eminent domain concerns compulsory acquisition or constitutionally significant property interference.

These powers can overlap in real-world disputes, but they should not be confused.

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24. The Condemnation Process

Although procedures differ by jurisdiction, a condemnation case commonly involves several stages.

1. Government decision

The government identifies property needed for a public project.

2. Authority

The government confirms that it has statutory authority to condemn.

3. Notice

The owner receives notice of the proposed acquisition.

4. Offer

The government may make an offer based on an appraisal.

5. Negotiation

The parties may attempt to agree on compensation.

6. Condemnation proceeding

If agreement is not reached, the government may initiate formal condemnation.

7. Valuation

The parties present evidence concerning the property’s value and damages.

8. Judgment or award

The court or appropriate tribunal determines the compensation.

9. Transfer

The government obtains the property interest authorized by law.

The precise process depends on federal, state, or local law.

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25. The Owner Does Not Necessarily Have to Accept the Government’s Offer

An initial government offer is not necessarily the final amount of compensation.

The owner may dispute:

• property valuation;
• highest and best use;
• severance damages;
• business losses;
• access impairment;
• the scope of the taking;
• the government’s legal authority.

The owner may obtain an independent appraisal or other expert evidence.

Eminent-domain litigation is therefore often heavily dependent on valuation evidence.

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26. Highest and Best Use

Property valuation in condemnation cases may consider the property’s highest and best use, subject to applicable legal restrictions.

For example, a parcel may currently contain an old warehouse.

But suppose the property could lawfully be redeveloped into a high-value commercial project.

The property’s value may reflect that development potential.

However, speculative or legally impossible uses should not simply be assumed.

The proposed use must have a legally and economically supportable basis.

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27. Business Losses and Relocation

Eminent-domain proceedings can affect businesses as well as landowners.

A business may suffer losses because of:

• relocation;
• interruption;
• loss of access;
• removal of improvements;
• loss of customer traffic;
• moving costs.

Whether these losses are compensable depends on applicable law.

Some statutes provide relocation assistance or compensation beyond the constitutional minimum.

This is another reason to distinguish:

constitutional just compensation

from

additional statutory benefits.

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28. Relocation Assistance

Government acquisition programs may provide relocation assistance to displaced occupants.

Depending on the applicable program and law, assistance can potentially include:

• moving expenses;
• replacement housing assistance;
• business relocation costs;
• certain transition expenses.

These benefits are not necessarily identical to the constitutional measure of just compensation.

A property owner should therefore examine both constitutional rights and applicable statutory programs.

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29. Public Projects and Eminent Domain

Eminent domain is commonly associated with large infrastructure projects.

Examples include:

• highways;
• bridges;
• rail systems;
• airports;
• public schools;
• utility infrastructure;
• pipelines;
• public buildings;
• parks;
• flood-control projects.

The public-purpose justification must still satisfy applicable law.

The existence of a large infrastructure project does not eliminate procedural or compensation requirements.

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30. Eminent Domain and Utility Easements

Sometimes the government or an authorized entity needs only a limited property interest.

For example, a utility company may need an easement allowing:

• installation of power lines;
• maintenance of pipelines;
• access to infrastructure.

Instead of acquiring fee-simple ownership, the condemning authority may acquire an easement.

The owner retains the remainder of the property but loses certain rights associated with the easement.

Compensation must therefore reflect the property interest actually taken.

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31. Inverse Condemnation

The government does not always initiate a formal condemnation proceeding.

Sometimes the owner claims that government action has effectively taken property without formally condemning it.

This type of claim is commonly known as inverse condemnation.

The basic idea is:

The government has taken or damaged property, but instead of starting condemnation proceedings, it has acted first and left the owner to seek compensation.

Inverse-condemnation claims can arise from:

• physical occupation;
• flooding;
• infrastructure;
• government-caused physical damage;
• regulatory restrictions.

The exact requirements vary by jurisdiction and type of claim.

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32. Eminent Domain and Flooding

Government-induced flooding has generated significant takings litigation.

Suppose the government constructs a flood-control project.

The project repeatedly floods private land.

Even though the government never formally acquires title, the recurring physical invasion may create a constitutional takings issue.

The Supreme Court has recognized that government-induced flooding can, under appropriate circumstances, constitute a taking requiring compensation.

This demonstrates again that formal transfer of title is not always necessary for a constitutional taking to occur.

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33. The Importance of Title

Eminent-domain analysis begins with identifying exactly what property interest belongs to the owner.

Title records may reveal:

• fee ownership;
• mortgages;
• easements;
• leases;
• mineral interests;
• co-ownership;
• restrictive covenants;
• other interests.

If the government takes property subject to multiple legally recognized interests, compensation issues may arise for more than one person.

A mortgagee, lessee, or other interest holder may have rights depending on the nature of the taking.

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34. Eminent Domain and Mortgages

Suppose a homeowner owns a house subject to a mortgage.

The government condemns the property.

The compensation is generally associated with the property interest taken, but the presence of a mortgage affects the distribution and legal treatment of the proceeds.

The lender has a security interest in the property.

The owner has the equity.

The condemnation award may therefore need to account for the interests of both.

This is another example of why property ownership is best understood as a bundle of legally enforceable interests rather than simply a single person’s absolute control.

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35. Eminent Domain and Tenants

Tenants can also have legally protected property interests.

Suppose a commercial tenant has a five-year lease and the government condemns the building after two years.

The tenant may lose valuable leasehold rights.

Depending on applicable law, the tenant may have a claim relating to the value of the leasehold interest or other legally compensable losses.

The landlord’s ownership does not necessarily mean that the tenant has no independent property interest.

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36. Eminent Domain and Co-Owners

If property is jointly owned, condemnation can affect multiple owners.

For example:

• Alice owns 50%;
• Bob owns 50%.

The government takes the property.

The compensation may need to be allocated according to their respective legal interests.

Co-ownership agreements, title documents, mortgages, and other encumbrances may affect the distribution.

Again, the analysis begins with identifying the property interests that actually exist.

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37. Challenges to the Government’s Authority

A property owner may challenge not only the amount of compensation but also the government’s authority to take the property.

Possible arguments include:

• no statutory authority;
• improper purpose;
• failure to satisfy public-use requirements;
• procedural defects;
• bad faith;
• abuse of discretion;
• failure to follow required procedures.

Thus, an eminent-domain case can involve two separate questions:

Question 1

Can the government take the property?

Question 2

If it can, how much must it pay?

These questions should not be conflated.

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38. Compensation Versus Consent

The government may attempt to purchase property voluntarily before using eminent domain.

A negotiated sale differs from a compulsory taking.

In a voluntary transaction:

• the owner agrees to sell;
• price is negotiated;
• ordinary contract principles may apply.

In condemnation:

• the owner does not necessarily consent;
• the government exercises legal authority;
• compensation is determined under constitutional and statutory rules.

Negotiation often occurs before condemnation because voluntary acquisition can be faster and less costly.

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39. Eminent Domain as a Limit on Absolute Ownership

Eminent domain illustrates an important property-law principle:

Private ownership exists within a broader legal system that reserves certain powers to the state.

An owner may ordinarily have the right to exclude others.

But the government may possess the legal authority to acquire an easement for a highway.

An owner may ordinarily have the right to retain land indefinitely.

But the government may condemn it for a public project.

An owner may ordinarily have the right to use property in particular ways.

But zoning and other regulations may restrict those uses.

Property rights are therefore powerful but structured.

They exist within constitutional, statutory, and common-law boundaries.

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40. A Practical Eminent-Domain Example

Suppose the city plans to widen a major highway.

John owns a commercial property worth $1.2 million.

The city needs 20% of the parcel.

The city offers John $180,000.

John believes the taking will:

• reduce parking;
• impair customer access;
• change the property’s layout;
• reduce the value of the remaining property.

John may challenge the government’s valuation.

The analysis might involve:

1. identifying exactly what property interest is being taken;
2. determining the value of the property taken;
3. determining the value of the remainder;
4. calculating any legally compensable severance damages;
5. examining whether business losses are compensable;
6. reviewing the government’s statutory authority;
7. determining whether the condemnation procedure was properly followed.

This illustrates why eminent-domain cases often involve both property law and valuation evidence.

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41. The Lawyer’s Eminent-Domain Checklist

When analyzing a potential taking, counsel should ask:

Government authority

• Who is taking the property?
• What statute authorizes the taking?
• Is the authority valid?

Public use

• What is the asserted public purpose?
• Does it satisfy constitutional and statutory requirements?

Property interest

• What exactly is being taken?
• Fee title?
• Easement?
• Leasehold?
• Mineral interest?
• Temporary interest?

Ownership

• Who owns the property?
• Are there co-owners?
• Are there tenants?
• Are there mortgagees or lienholders?

Valuation

• What is the property’s fair market value?
• What is its highest and best use?
• What improvements exist?
• What is the value of the interest taken?

Remainder

If only part of the property is taken:

• What happens to the remainder?
• Is there a loss in value?
• Are severance damages available?

Procedure

• Was proper notice given?
• Was the required offer made?
• Were statutory procedures followed?
• What tribunal determines compensation?

Additional damages

• Are relocation costs available?
• Are business losses compensable?
• Are statutory benefits available?

Litigation

• Can the owner challenge the taking itself?
• Or only the amount of compensation?

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42. Common Mistakes

Mistake 1: Assuming the government can take property for any reason

The government must satisfy constitutional and statutory requirements.

Mistake 2: Assuming public use means only public ownership

Modern constitutional doctrine can recognize broader public purposes.

Mistake 3: Assuming the government can take property without paying

The Fifth Amendment generally requires just compensation for qualifying takings.

Mistake 4: Assuming only landowners have rights

Tenants, mortgagees, easement holders, and others may have legally protected property interests.

Mistake 5: Looking only at the land physically taken

A partial taking can also affect the value of the remaining property.

Mistake 6: Treating the government’s appraisal as final

An owner may dispute valuation and present independent evidence.

Mistake 7: Assuming every regulation is a taking

Regulation and physical appropriation are analyzed under different constitutional frameworks.

Mistake 8: Confusing eminent domain with police power

Eminent domain generally involves compulsory acquisition or constitutionally significant interference requiring compensation; ordinary regulation does not automatically trigger compensation.

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43. Key Takeaways

• Eminent domain is the government’s power to take private property for a qualifying public purpose.
• The constitutional foundation is the Fifth Amendment Takings Clause.
• The two central constitutional requirements are public use and just compensation.
• Condemnation is the legal process through which eminent-domain authority is exercised.
• The government may acquire an entire parcel or only a specific property interest, such as an easement.
• Just compensation generally begins with fair market value, but valuation can become more complicated for partial takings.
• A partial taking may produce severance damages to the remaining property where authorized.
• Tenants, mortgagees, co-owners, and other interest holders may have rights affected by condemnation.
• Regulatory takings involve government restrictions that may become constitutionally equivalent to a taking even without physical acquisition.
• Inverse condemnation allows property owners to seek compensation when government action effectively takes property without a formal condemnation proceeding.
• Eminent domain differs from police power and taxation.
• The government’s authority to take and the amount of compensation are separate legal questions.
• Eminent domain demonstrates that private ownership is powerful but not absolute.

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Frequently Asked Questions

Can the government take my property even if I do not want to sell?

Yes, potentially.

If the government has valid eminent-domain authority and satisfies the applicable constitutional and statutory requirements, it can compel the transfer of property even without the owner’s consent.

Does the government have to pay for property taken through eminent domain?

Generally, the Fifth Amendment requires just compensation for a qualifying taking of private property for public use.

What does “public use” mean?

Modern constitutional doctrine generally interprets public use broadly enough to include certain legitimate public purposes, including some economic-development programs.

What is condemnation?

Condemnation is the legal process used to exercise eminent-domain authority against particular property.

Can the government take only part of my property?

Yes.

The government may acquire only the portion or property interest necessary for a public project.

What happens to the rest of my property after a partial taking?

The remaining property stays with the owner, but its value may be affected. Depending on applicable law, the owner may receive compensation for qualifying damage to the remainder.

Can a tenant receive compensation in eminent domain?

Potentially.

A tenant may possess a legally protected leasehold interest that is affected by the taking.

Can I challenge the government’s decision to take my property?

Potentially.

An owner may challenge the government’s authority, public purpose, statutory compliance, or procedure, in addition to disputing compensation.

What is inverse condemnation?

Inverse condemnation is a claim brought by a property owner alleging that government action has effectively taken or damaged property without formally condemning it.

Is eminent domain the same as zoning?

No.

Eminent domain generally concerns compulsory acquisition of property interests. Zoning is primarily an exercise of the government’s regulatory power.

Is eminent domain the same as a taking?

Not exactly.

Eminent domain is the government’s power to take property.

A “taking” describes the government action or constitutional event that may require compensation.

Can the government take property and give it to another private party?

In some circumstances, yes, if the taking serves a constitutionally sufficient public purpose and satisfies applicable law.

The Supreme Court’s decision in Kelo v. City of New London is the leading example, although many states have subsequently imposed additional restrictions on such takings.

Does the government have to pay whatever the owner demands?

No.

The constitutional requirement is generally just compensation, not whatever price the owner chooses.

The amount may become the subject of negotiation, appraisal, and litigation.

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Conclusion

Eminent domain is one of the clearest demonstrations that property ownership in American law is powerful but not absolute.

An owner ordinarily has the right to possess property, use it, exclude others, and decide whether to sell it. Yet the government possesses a distinct sovereign power to acquire private property when the constitutional and statutory requirements for eminent domain are satisfied.

The Fifth Amendment places two central limits on that power: public use and just compensation.

The first asks whether the government’s taking serves a constitutionally sufficient public purpose. The second asks what the owner must receive in exchange for the property interest taken.

The practical analysis can become much more complicated when the government takes only part of a parcel, when the remaining property loses value, when tenants or mortgagees have independent interests, or when government regulation rather than physical acquisition is involved.

Eminent domain therefore sits at the intersection of several fundamental property-law concepts:

ownership, possession, exclusion, valuation, security interests, easements, land use, and government power.

Its deepest lesson is that private property rights exist within a constitutional order. The law strongly protects ownership, but it also recognizes circumstances in which collective public needs can justify compulsory acquisition.

The constitutional compromise is captured in the basic principle of the Takings Clause:

The government may take private property for a legitimate public purpose, but when it does so in a constitutionally compensable taking, the owner is entitled to just compensation.