736
Opinion of Souter, J.
the former as United States v. Landowner and the latter as Landowner v. United States"). Thus, the analogy between direct and inverse condemnation is apparent whether we focus on the underlying Fifth Amendment right or the common remedy of just compensation.
The strength of the analogy is fatal to respondents' claim to a jury trial as a matter of right. Reaffirming what was already a well-established principle, the Court explained over a century ago that "the estimate of the just compensation for property taken for the public use, under the right of eminent domain, is not required to be made by a jury," Bauman v. Ross, 167 U. S. 548, 593 (1897) (citing, inter alia, Custiss v. Georgetown & Alexandria Turnpike Co., 6 Cranch 233 (1810); United States v. Jones, 109 U. S. 513, 519 (1883); and Shoemaker v. United States, 147 U. S. 282, 300, 301 (1893)),1
1 In Bauman, the Court upheld a statute (providing for condemnation of land for streets) that contemplated a form of jury "differing from an ordinary jury in consisting of less than twelve persons, and in not being required to act with unanimity," and stated that the just compensation determination "may be entrusted by Congress to commissioners appointed by a court or by the executive, or to an inquest consisting of more or fewer men than an ordinary jury." 167 U. S., at 593. The Court relied upon prior cases that had assumed the absence of a constitutional right to a jury determination of just compensation. See, e. g., Shoemaker, 147 U. S., at 301-302, 304-305 (upholding statute providing for ascertainment of the value of condemned land by three presidentially appointed commissioners); Jones, 109 U. S., at 519 ("The proceeding for the ascertainment of the value of the property and consequent compensation to be made, is merely an inquisition to establish a particular fact as a preliminary to the actual taking; and it may be prosecuted before commissioners or special boards or the courts, with or without the intervention of a jury, as the legislative power may designate"). See also Kohl v. United States, 91 U. S. 367, 376 (1876) ("That [the right of eminent domain] was not enforced through the agency of a jury is immaterial; for many civil as well as criminal proceedings at common law were without a jury"); Crane v. Hahlo, 258 U. S. 142, 147 (1922) ("[T]he reference of such a question [determining the amount of compensation], especially in eminent domain proceedings, to a commission, or board, or sheriff's jury, or other non-judicial tribunal, was so common in England and in this country prior to the adoption of the Federal
Page: Index Previous 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 NextLast modified: October 4, 2007