What constitutes just
compensation cannot be considered by the court unless a taking has first been
determined to occur. Instead of reading the clause as a whole, compensation is
paid only when takings occur through physical occupations or regulations which
eliminate all uses of property. Compensation is not always paid, therefore, in
direct relation to the amount of property loss or depletion in value.
fundamental tenet of just compensation is to put the property owner in as good a
position as he would have been in had the injury not occurred.
This serves the principal purpose of the just compensation requirement, "to bar
Government from forcing some people alone to bear public burdens which, in all
fairness and justice, should be borne by the public as a whole."
Similarly stated, "Just compensation should neither enrich the individual at the
expense of the public nor the public at the expense of the individual."
Because the court accepts these notions, it is quite
inconsistent for it to argue that a governmental action which causes a less than
complete diminution in the value of property is not compensable. As a result of
the government action, the property owner’s position is lowered, but because a
taking is not considered to have occurred, the state is not required to put the
property owner in as good a position as he was in prior to the action. Nor do
they ensure that individual property owners are not forced to bear a
disproportionate economic cost to advance a community interest which should be
paid for by the community at large.
Compensation can be calculated when a taking is
determined to occur. If only a portion of a parcel of property is taken, just
compensation includes the value of that parcel and the reduction in value to the
remaining portions. In Jack Loeks Theatres v. City of Kentwood, the
Michigan Court of Appeals observed that:
[I]t has long been recognized in
this state that where, as here, only part of a parcel is taken, "just
compensation is to be determined by the amount which the value of the parcel
from which it is taken is diminished. The part actually taken is allowed as
direct compensation, but the decreased value of the residue of the parcel on
account of the use made of the land is also allowable as compensation."
The Jack Loeks Theatres decision also stated that property owners can present
evidence of the "highest and best use" of the land taken, so long as the land is
adaptable to that use and that use is not merely speculative but has "attained
some degree of concrete physical realization."
In the end, however, the amount of compensation is ultimately a question for the
jury based on the facts of each case.