O Fortuna.
A casualty event is not a taking of private property for public use.
“Casualty” is defined as a “serious or fatal accident. A person or thing injured, lost or destroyed. A disastrous occurrence due to sudden, unexpected or unusual cause. Accident; misfortune or mayhap; that which comes by chance or without design. A loss from such an event or cause; as by fire; shipwreck; lightning, etc.” Blacks Law, Fifth Ed. p.198
When the police storm your house for the sole reason that some bad guy ran into it, you’ve been ordained by Fortune to have a bad day. The police are not there by any particular design or plan of the State. You’ve had the misfortune of some other bad actor bringing a situation to you by chance.
In short, you’re in a casualty event.
When the government takes private property for public use through the exercise of the power of eminent domain it owes just compensation. But, a casualty caused by the government exercising some sovereign power other than eminent domain is typically non-compensable.
This is certainly the case in war. The United States Supreme Court in U.S. v. Pacific R.R., 120 U.S. 227 (1887), noted that there are two forms of damages in war. First, those damages caused by the enemy. Secondly, and relevant here, those caused by the State.
For those damages caused by the State, there is another division point. First, some damages are caused deliberately and by way of precaution, such as when the state seizes land to build a rampart or fortification. Secondly, when a house is destroyed as a precautionary measure to prevent it from falling into beneficial use of the enemy. In such cases, “damages are to be made good to the individual, who should bear only the quota of the loss.” That is, just compensation is owed. And indeed, the long history of Anglo-American jurisprudence supports that Parliament routinely passed acts to seize private lands with compensation for defense works in anticipation of several invasions as set forth at length in De Keyser’s Hotel, (1920) A.C. 508. Likewise, as discussed by Robert Thomas, Lord Coke noted that the sovereign could intentionally enter the dwelling of a subject, and seize saltpeter, but must return the subject in “so good Plight” as the subject was found. Thus, the fact that the “use” is military in nature does not automatically exempt the sovereign from the obligation to pay just compensation.
But context matters. Below is a pretty big block quote, but it’s an important one. This is the United States Supreme Court quoting Vattel’s Law of Nations.
“But there are other damages, caused by inevitable necessity; as, for instance, the destruction caused by the artillery in retaking a town from the enemy. These are merely accidents; they are misfortunes which chance deals out to the proprietors on whom they happen to fall. The sovereign, indeed, ought to show an equitable regard for the sufferers, if the situation of his affairs will admit of it; but no action lies against the state for misfortunes of this nature,-for losses which she has occasioned, not willfully, but through necessity and by mere accident, in the exertion of her rights. The same may be said of damages caused by the enemy. All the subjects are exposed to such damages; and woe to him on whom they fall! The members of a society may well encounter such risk of property, since they encounter a similar risk of life itself. Were the state strictly to indemnify all those whose property is injured in this manner, the public finances would soon be exhausted, and every individual in the state would be obliged to contribute his share in due proportion,-a thing utterly impracticable.’
Book 3, c. 15, p. 402, § 232.
U.S. v. Pacific R.R., 7 S.Ct. 490, 493–94, 120 U.S. 227, 234–35 (U.S. 1887)
I should note that the last sentence “were the state strictly to indemnify all those whose property is injured in this manner”seems ridiculously prescient when considering the plight of California’s power distribution system – which you can read very ably covered here.
This rule is the same for other forms of great public peril – riots and the quelling thereof. In YMCA v. United States, 395 U.S. 85 (1969), the United States Supreme Court ruled that the temporary, unplanned occupation of buildings by troops during the course of a riot does not constitute a taking of private property for public use. This case against draws a distinction between soldiers following the action of a riot into a piece of property (which was not a compensable taking) in opposition to a hypothetical dispatch of military units into a property with the “intention of requisitioning or taking buildings to house soldiers”.
Having established that war casualties, such as the shelling of a house by artillery during the valid exercise of the war power will not qualify as a compensable “taking of private property for a public use”, we next turn to the question of whether destruction of a house by police officers in pursuit of a criminal is the same.
Short answer: The rule is the same. The exercise of the police power, which the Courts have held applies to actual police officers enforcing the law follows the same baseline contours. If the police department seizes your house to build a police HQ, that’s gonna be a taking for a public use through the power of eminent domain, and you’ll get compensated.
But, where the police simply follow some emergency to your house, and your house is damaged (even destroyed) in the incident, you’re in a casualty event. The police were acting pursuant to the police power, and not the power of eminent domain and you will not be compensated.
The California Supreme Court analyzed this quite ably in a very long opinion called Customer Co. v. City of Sacramento, 10 Cal. 4th 368 (1995), analogizing and relying on U.S. v. Pacific R.R. It’s worth a read for people interested in this topic. Largely because it has a dissent. So the topic is analyzed very thoroughly. Also of more nerdish interest, the California Supreme Court construes the California Constitution’s “taking or damages” clause in an interesting way. In the recent Lech case, the 10th Circuit, in footnote 6 seemed to indicate some interest in whether the “taking or damages” clause of the Colorado Constitution might have altered the analysis if that argument hadn’t been waived. In Customer Co., the California Supreme Court concluded that it did not.
The Customer Co. opinion is also fun because the California Supreme Court gets a little spicy at the jurisprudence of the Texas Supreme Court, and those sorts of jurisprudential tiffs are always interesting.
In short. When property is taken for public use under the power of eminent domain, just compensation from the government is required. When property is destroyed or damaged under the war power or police power, the government does not owe just compensation.
I should note that casualty events are generally insurable. Casualty insurance is a thing. It is not true that a landowner facing a casualty event must be left destitute and with no recovery if the government won’t pay just compensation. Instead, the recovery and remedy come from the landowner’s insurance. Granted, if the landowner has no insurance, then the landowner’s misfortune is quite severe – but that consequence would be the result of a landowner’s election to forego insurance.
I will note one point that does bother me about the above distinction between the governments powers of eminent domain and the police and war powers, though. In Kelo, the United States Supreme Court determined that for direct condemnation, public use was broad enough to encompass nearly every public purpose or benefit. What’s good for the goose ought to be good for the gander, shouldn’t it? If nearly every governmental goal can be shoehorned into the power of eminent domain on direct condemnation, perhaps the common law distinction between eminent domain power, war power, and police power for inverse condemnation analysis is a bit less fair. But, I would submit that the jurisprudential remedy would be to take a closer look at whether Kelo was rightly decided, and not to turn every interaction between a government entity and private property into a takings case.
Finally, as I’ve pointed out before, Nevada’s constitution has an interesting tick. While most Constitutions simply say that private property shall not be taken for public use without the payment of just compensation, Nevada’s says that “Private property shall not be taken for public use without just compensation having been first made, or secured, except in cases of war, riot, fire, or great public peril, in which case compensation shall be afterward made.” I strongly wonder whether Nevada’s eminent domain provision actually encompasses the “great peril” distinction analyzed above – and requires compensation for those exercises of war power or police power that would typically be excluded from eminent domain..