II.Historical

Local governments in the United States have taken a wide variety of approaches when community health emergencies have occurred, relying on the police power granted to states, which is the power to regulateandprotectthehealth,safety,andmoralsofa states’citizens. Police power has been recognized since the beginning of this country and still has great power today in the form of zoning ordinances, building codes, and nuisance regulations. By exercising these powers though, the government has encountered resistance from property owners.Duringcommunityhealthemergencies,propertyownershave been forced to give up their houses to be used as hospitals, forced to shutdowntheirbusinesses,andhaveevenhadtheirpropertydestroyed toavoidthespreadofdisease.

Thispaperexaminesexamplesfromourpastandpresentandseeksto find a balance between the right of the government to protect the health, safety, and morals of its citizens, with the right of private propertyownersnottohavetheirpropertytakenforpublicusewithout just compensation.3 Section II covers “takings” cases spanning between1840and1900.Duringthattime,theUnitedStatessuffereda variety of community health emergencies, from smallpox to typhoid, even the bubonic plague; and the government reacted in a variety of manners to each potential catastrophe. Section III covers the development of takings jurisprudence between 1900 and modern times. Takings cases have been analyzed in dramatically different waysovertheyears,andtheadditionoftheregulatorytakingsdoctrine in the 1920s expanded the potential claims under the Fifth Amendment. Section IV covers the Coronavirus pandemic, which is occurring at the time of this writing. With the development of takings jurisprudenceoverthelast100years,thispaperlooksatthefewcases that have been heard on COVID-19 and how they balance the police powers and the right of private property owners. Section V is an analysis of the way the COVID-19 cases have applied the takings jurisprudencetothemodernpandemicandwhatshouldbedonebythe courts to better address and balance the needs of the community with therightsoflandowners.

II.Historical

“Throughout the course of the nineteenth and twentieth centuries, the UnitedStatesfacedmultipleepidemicsofdeadlydiseases.Intheface

3 U.S.Const. amend.V.

of such epidemics, and often in moments of panic, governments instituted significant quarantines.”4 This is what happened in Utica, New York, in 1840. Richard Evans and his family had immigrated fromNorthWales,andwerevisitinga friendwhentwoofhischildren becamesickwithsmallpox.5 Evansrentedsomeroomsina localhotel fora dayortwountilhewasremovedbyHarryBushnell,analderman of the city, to a house owned by Mr. Boom.6 Alderman Bushnell claimed that his right to take Boom’s house and move Evans into it was given to him by the town council on the grounds that certain personswithinthecityhadsmallpox.7 However,“therewasnowritten resolution on the subject, nor any memorandum of any such action of the board, in the minutes. The reason . . . for the omission . . . in the minutes was, the fear that it would create an alarm in the country.”8 The house on the lot was improved and medical staff were hired to attendtheEvansfamily,bothwerepaidoutofcityfunds;despitethere notbeinganyresolutionofthetowncouncilapprovingthesepurchases and the town treasurer having no knowledge of the removal and housingoftheEvansfamily.9

Boom was not only prohibited from use and enjoyment of his house, but also from any use and enjoyment of the property on which the housestood“bythefactthatitwasdeemeddangeroustoapproachthe house in which a patient was sick of a contagious disease.”10 The referee who originally heard the case awarded Boom $75 for the loss of use of his house and property.11 Unfortunately for Boom, the New YorkSupremeCourtquestionedwhetherBoomshouldhaverecovered at all because he sued the city for the taking of his property, opposed toBushnellorEvansindividually.12 TheCourtfoundthatalthoughthe town council had the right to order the removal of Evans from the hotel, it did not have the right to forcibly seize and occupy Boom’s house.13 Infact,theCourtfoundthat“[t]hecitycannotbemadeliable

4 FeliceBatlan, Law in the Time of Cholera: Disease, State Power, and Quarantines Past and Future, 80 Temp.L.Rev.53,55-56(2007). 5 Boomv.CityofUtica,2 Barb.104, 105(N.Y. Gen. Term 1848). 6 Id. 7 Id. at 106. 8 Id. 9 Id. 10 Id. 11 Id. at106-07. 12 Id. at 107(emphasisinoriginal). 13 Id. at 110.

for this unlawful occupation of the plaintiff’s house by Alderman Bushnell,because1st.Thecommoncouncilhadnopowertoauthorize such an act. And 2dly [sic] They never did authorize it.”14 The Court further found that it is not “necessary or expedient to confer a power uponanybodyofmentoseizethepropertyofanother,andappropriate it,withouthisconsent,tosucha purposeasthis.”15 Inshort,Alderman Bushnellactedonhisowninoccupyingthehouse,wasnotauthorized bythecity,anditwasnot,therefore, a compensabletaking.

A similar situation arose in Georgia in 1863; three Justices of the Inferior Court of Fulton County, Georgia, took a man’s land to set up a smallpox hospital.16 When the landowner challenged the action, the Justices claimed that it was within their official authority to set up smallpoxhospitalsforthecounty,andthetrialcourtagreed,informing thejurythatifitwasnecessaryfortheJusticestotakethepropertyfor the public good to prevent the spread of contagion, then the Justices should not be held liable.17 The Georgia Supreme Court, however, pointed out that “the act of the legislature authorizing the Inferior Courts to provide suitable hospitals for small-pox patients, makes no provision for compensation, from which we infer that it was not contemplated that private property should be taken or impressed for thatpurpose.”18 Therefore,similartoNewYorkin1840,19 theJustices hereactedastrespassersintheirindividualcapacityandnolegaltaking wasfound.20

An1884casefromMassachusettsalsoaddresseda smallpoxoutbreak. A house was split between two families; part of the house was occupied by the owner, and part was occupied by a tenant.21 “Smallpox broke out in the family of the tenant and the Board of Health of Hyde Park, Massachusetts, took possession of the home and turned it intoa hospital. 22 TheBoard“may. . .incur expensesormakecontracts, within their lawful powers, for which the towns would be liable.”23

14 Id. at 111. 15 Id. at 112. 16 Markhamv.Brown,37Ga. 277(1867). 17 Id. at 281. 18 Id. at 282. 19 Boom, 2Barb.at104. 20 Markham, 37 Ga.at283. 21 Springv.HydePark,137Mass. 554,556(1884). 22 Id. 23 Id. at 555.

However,thestatutescreatingtheBoarddidnotsayhowthecontracts the Board formed would be paid or how “the contracts they [were] authorized to make are to be performed.”24 Unlike the previous two cases where the court found that the alderman or the justices simply did not act within the authority of the town and therefore it was not a taking, the central question, in this case, was whether the implied contract made by the Board when it took possession of the plaintiff’s housetopreventthespreadofdiseasewaswithinitsauthority.25 Ifso, the town was bound to pay for the taking; if not, it was a simple trespass by the Board, where members of the Board would be responsibleforthecompensationandnotthecity.

The court turned to Lynde v. Rockland.

26 In Lynde, the town of Rockland,Maine,hada statuteprovidingthatifsickpeoplecouldnot beremovedfroma homewithoutcausingdanger,thenthehousethey were located in would be deemed a hospital.27 However, when the BoardofHealthseizeda hotelandtriedtoturnitintoa hospital,itwas held that the Board never held power to seize property, just to create hospitals,andthereforethetownwasnotheldliable.28

Relying on this reasoning, the court in Spring held that the Board had noauthoritytotakepossessionofanother’shouseforuseasa hospital and therefore the town was not liable for the contract made by the Board,29 butnotbeforeholdingthat:

[I]norderthatthepublichealthmaybeprotected,and the spread of infection prevented . . . the right to impose such regulations as to the management has always been held to be quite distinct from that of appropriating private property, when an emergency requires it, to public use. . . . [T]he owner who is subjectedtosuchregulationhasofrightnotitletoany compensation, even if the value of the property is therebydiminished.Itisa necessaryburdenwhichhe

24 Id. 25 Id. at 556-57. 26 Lyndev.City of Rockland,66Me. 309(1876). 27 Spring, 137Mass.at558 (citing Lynde, 66 Me.at314). 28 Id. at 558-59. 29 Id. at560.

bears as a member of society in common with all otherssimilarlysituated.30

Sucha powerfulstatementabouttheextentofpolicepower,wherethe interestsofthecommunityprevailoverprivatepropertyrights,comes before zoning ordinances were upheld by the United States Supreme Court31 and also before the regulatory takings doctrine was developed32 — bothareasoflandregulationthatreinforcesthenotion that regulations to protect health and welfare are the cost of being a member of a community. The court in Spring holds that private property is subject to regulations to help the community during an emergencyforthefirsttime, anditisnota taking.

Thepolicepoweralsograntsthegovernmenta sortofimmunityfrom committing a public nuisance if the action furthers the resolution of a publicneed.In Frazer v. Chicago, theplaintiffssuedChicagobecause the city built and maintained a smallpox hospital on city property directly across from the plaintiffs’ property.33 In the complaint, plaintiffs alleged that the existence of the hospital across from his property:

[D]amaged and will greatly damage plaintiffs’ lands in a way not common to the general public; . . . that such acts of the defendant constitute a permanent injuryforthebenefitofthepublic,withinthemeaning of the section of the constitution prohibiting the damaging of private property for public use without compensationandunreasonablylimittheusetowhich plaintiffs’landsmightbeput,wherebyplaintiffshave sustained special damage not common to the general public.34

The city argued that it was necessary tobuild a smallpox hospital and thatitwasbuiltonthelandofthecityandthereforeanydamagedone

30 Id. at 559. 31 See generally Euclidv.AmblerRealtyCo., 272U.S.365(1926)(holdingthefirst approvalofzoningpowers). 32 See generally Pa. Coal Co. v. Mahon, 260 U.S. 393 (1922) (holding for the first time theexistenceofregulatorytakings). 33 Frazier v Chicago,186Ill.480, 482(1900). 34 Id. at 483.

to the plaintiffs is compensated for in the benefit they receive from othercitypolicepowers.35

Thecourtstatedthat:

[T]here are certain injuries which are necessarily incident to the ownership of property in towns or cities which directly impair the value of private property, for which the law does not and never has afforded relief. For instance, the building of a jail, policestation,orthelikewillgenerallycausea direct depreciationinthevalueofneighboringproperty.36

Thecourtcontinued:

[E]very citizen holds his property subject to the proper exercise of th[is] police power, either by the State legislature directly, or by public or municipal corporations, to which the legislature may delegate it . . .. It is well settled that laws and regulations of this character, though they may disturb the enjoyment of individual rights, are not unconstitutional, though no provision is made for compensation for such disturbance.37

No taking was found. Although the plaintiff was arguing for compensation because of a taking, there was no physical taking. This was a new argument for a nuisance committed by the government, whichthecourtdidnotrecognize.

As stated above, although none of these cases found a taking, it is unlikely that many of them would be considered a taking today because of the expressed public need and the appropriate use of the police power. Boom, Markham, and Spring all were on the verge of

35 Id. at 484. This argumentisanearly versionofoneshown in Friends, infra, where nocompensation is grantedwhenthe governmentaction is through thepolice power, regardlessoftheeffectthatithasonprivateproperty. Infra note57. 36 Frazer, 186Ill.at485(quoting Rigney v. Chicago, 102Ill.64,80(1882)). 37 Frazer, 186Ill.at488.Theideathatcertaininjuriesarenecessarilyincidenttothe ownership of propertyismadethe rulein Lucas, infra, note 48,wherethe courtdoes not limit the police power when it comes to nuisances and injuries necessarily incidentasa matterofstate law.