Cite as: 526 U. S. 687 (1999)
Opinion of Souter, J.
could recover retrospective damages under common law action of trespass or trespass on the case only after defendant was "stripped of his [legislative] justification"). Cf. Leader v. Moxon, 2 Black. W. 924, 927, 96 Eng. Rep. 546, 547 (C. P. 1773) (commissioners acted outside their statutory authority and were thus liable in tort); Boulton v. Crowther, 2 Barn. & Cress. 701, 707, 107 Eng. Rep. 544, 547 (K. B. 1824). Under these cases, there would be no recovery unless the public officer interfering with the property right was acting wholly without authority. But as absence of legal authorization becomes crucial to recovery, the analogy to tort liability fades. What is even more damaging to the attempted tort analogy, whether it rests on simple tort cases like Gardner or legal authorization cases like Bradshaw, is that this very assumption that liability flows from wrongful or unauthorized conduct is at odds with the modern view of acts effecting inverse condemnation as being entirely lawful.7 See First English Evangelical Lutheran, 482 U. S., at 314-315 (citing Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U. S., at 194; Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S. 264, 297, n. 40 (1981); Hurley v. Kincaid, 285 U. S., at 104; Monongahela Nav. Co. v. United States, 148 U. S. 312, 336 (1893); United States v. Jones, 109 U. S., at 518). Unlike damages to redress a wrong as understood in Gardner or Bradshaw (or even in a modern tort action), a damages award in an inverse condemnation action orders payment of the "just compensation" required by the Constitution for payment of an obligation lawfully incurred.
To the plurality's collection of tort and authorization cases, one must add those that are so far from reflecting any early understanding of inverse condemnation as conventionally
7 When an inverse condemnee seeks an injunction (as when a direct condemnee challenges the taking, or a plaintiff claims a substantive due process violation), there is a claim of wrong in the sense of lack of authority. But this is not so in the usual case where damages are sought.
747
Page: Index Previous 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 NextLast modified: October 4, 2007