Eminent domain[1] is a term used to describe the power of a state or the federal government to take possession and title to private property for public use. Milling attorneys have been involved in many aspects of eminent domain law, particularly in litigation, often representing private property owners. At other times, Milling attorneys have also represented utility companies which are delegated expropriation powers by the legislature for acquisition of private property for energy or pipeline installation projects. In still other situations, Milling attorneys have defended governmental entities in takings litigation.
If you are currently facing eminent domain issues, please reach out to Milling attorneys you can trust. We will help you navigate these sometimes-confusing constitutional waters to advance your interests.
Generally, while property may be taken through expropriation, “just compensation” must be paid to the private property owner as required under the Fifth Amendment to the United States Constitution and Article IV, sec. 1 of the Louisiana Constitution. Under the Louisiana law, an owner shall be compensated for property “taken or damaged . . . to the full extent of his loss”, except in appropriation for levees or expropriation for coastal restoration projects, which require only compensation based upon fair market value as with federal law. There is also a claim for severance damages recognized under both federal and Louisiana law where devaluation of property remaining with the claimant occurs as a result of the government’s expropriation of the balance of its parcel.
The other side of the expropriation “coin” is inverse condemnation, a claim or cause of action which arises when the government takes property but never institutes a formal proceeding for that taking. Significantly, Milling attorneys successfully defended the largest inverse condemnation litigation ($2 billion) in state (if not U.S.) history. In these situations, such takings usually assume the form of a physical or categorical taking or “taking per se”, often involving an actual physical invasion of property. At other times, there may be a regulatory taking where “compensation may be required when a government regulation of private property is so onerous that its effect is tantamount to a direct appropriation or ouster.” It is now hornbook law that any substantial interference with the free use and enjoyment of property may constitute a taking of property within the meaning of federal and state constitutions. Yet, private property owners must still tolerate inconvenience for the valid exercise of the government’s police power, i.e., necessary action for the benefit of the public’s health, safety and welfare. “The [regulatory or] police power, unlike the power of eminent domain, is used to regulate; the power of eminent domain [is] used to acquire property from private ownership.”
Another related claim or cause of action under Louisiana law is for damage to property which is not actually taken but “damaged in a constitutional sense,” so as to still require compensation. Whether such a claim is available is determined by application of the analogous civil law concept of vicinage, the obligations owed between neighbors as expressed in La. Civ. Code art.’s 667–669. The test is whether the challenged governmental activity resulted in mere inconveniences that must be tolerated by the claimant under the police power or by analogy, Article 668, or, rather, resulted in more serious inconveniences or interference that may be suppressed under Article 667.
In Louisiana, it is critical to know the difference between the two because of prescription (Louisiana’s civil law equivalent to a statute of limitations), since a claim for a taking or inverse condemnation has a three-year prescriptive period, while the action for damages alone has a two-year prescriptive period.
One type of scenario that continues to arise in takings litigation is where private property is taken for a state or local government’s planned economic development purposes. Here in Louisiana, this is most often associated with the creation or expansion of ports along the Mississippi River and elsewhere. It does not include the power to take and transfer ownership of private property from one property owner to another individual private property owner without a valid public purpose. But the government may take property as part of a development plan for an area to be benefited generally.
This issue arose in a Connecticut case, Kelo v. City of New London, which eventually came before the U.S. Supreme Court. The City of Bridgeport expropriated an entire neighborhood which had scenic views of a nearby river to allow for private companies to develop and expand their businesses so as to create job opportunities. The question was whether a city violates the Fifth Amendment’s takings clause if the city takes private property and sells it for private development, so as to help revive a city’s bad economy. The Supreme Court held that the city’s taking of private property to sell for private development qualified as a “public use” within the meaning of the takings clause because it was following an economic development plan. Sadly, the development never occurred. This issue will undoubtedly arise at some point in Louisiana.
Facing an eminent domain dispute? Contact the trusted Milling attorneys today—we’ll guide you through complex constitutional issues and protect your property rights every step of the way.
Dear Clients,
After 130 years of practicing law in the State of Louisiana, the law firm of Milling Benson Woodware, L.L.P. has closed its practice of law and will cease providing professional services, effective as of 5 PM, February 18, 2026. After that time the firm will no longer represent you or other clients in any matters, cases or files.
Contact Your Attorney
To ensure your legal matters are handled without interruption, it is necessary for you to contact the individual attorney that previously handled your file or retain new counsel as soon as possible. If you have not already been contacted by your attorney for the continued handling of your files, you may contact our office before March 27, 2026, and we will attempt to put you in touch with the attorney that previously handled your file. Some of the attorneys previously with the firm will continue to practice elsewhere, and you should reach out to them or your new attorney as soon as possible.
File Retrieval by March 27, 2026
If you believe that we have any of your client files still in our possession they will be available for transfer to you or your attorney on or before March 27, 2026. If you want us to see if a file is available for transfer to you or your attorney, please reply to this email and provide written authorization to make the transfer, including the name and address (or other contact information) of your lawyer. If you prefer to personally take possession of your files, you may pick up your file at our office located at 68031 Capital Trace Row, Mandeville, LA 70471, on or before March 27, 2026.
After March 27, 2026, we will promptly proceed with arranging for the destruction of any files (other than Last Wills) not transferred to an attorney or picked up by you (or our representative) from our office. The files not transferred will be destroyed by shredding to protect all confidential information. Since the firm is going out of business, we will have no office location available to further store client files.
The Last Wills and Testaments in our possession will be transferred to Kayla Martynenko, Attorney in Mandeville, LA, who can be reached by email at kayla@legacylitigator.com. Ms. Martynenko will be attempting to reach out to those who signed Last Wills for which she takes possession. Let her know if you want another attorney to take possession of your Last Will or if you want to pick up the Last Will from her office.
Should you need additional information or want to arrange to pick up your file, you may contact our office manager, Vicky Cochran, by e-mail at vcochran@millinglaw.com or by calling Vicky Cochran at (985) 292-2015. Be sure to contact Vicky by 5 PM, March 27, 2026, to arrange for transfer of your files.
We thank you for the opportunity to have served your legal needs and wish you all the best in your future endeavors.
Sincerely,
MILLING BENSON WOODWARD L.L.P
C. Randall Loewen Managing Partner / Liquidator
