Definition
TAKING has two distinct but related legal meanings that operate in different doctrinal contexts.
1. Criminal law and torts. The act of seizing or laying hold of an article, with or without removing it from its original location. A taking in this sense requires that the item come within the power or control of the person accused — it is not complete merely by touching. In larceny and robbery, the taking (sometimes called caption) is a required element: the property must pass, however briefly, into the defendant's dominion. In trespass, trover, and replevin, a taking occurs when the goods are effectively within the defendant's control, even if not physically carried away.
2. Constitutional law — the Takings Clause. A government action that appropriates, destroys, or substantially burdens private property to the point that compensation is required under the Fifth Amendment (applied to the states through the Fourteenth). This meaning encompasses both physical takings, where the government directly occupies or appropriates property, and regulatory takings, where government regulation goes so far in restricting use that it is treated as a constitutional taking requiring just compensation. The constitutional sense is the dominant meaning in modern legal research.
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Common Language
Modern common usage (Wiktionary): The act by which something is taken; a seizure of goods or possessions; cash received by a business; a state of mental distress (as in "in a taking").
Historical common usage (Webster's 1913): Apt to take; alluring; attracting. Also (obsolete): infectious or contagious.
The legal term shares surface vocabulary with ordinary English but diverges sharply in both directions. The criminal/tort sense of "taking" is narrower than the everyday sense — not every physical contact or even removal constitutes a taking in law, because control or dominion must pass. The constitutional sense is broader than anything in ordinary usage: a government regulation that leaves an owner holding title but strips the property of all economic value can be a "taking" even though nothing is seized and no one physically touches the property.
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Common Confusion
TAKING vs. CONVERSION vs. TRESPASS TO CHATTELS: These torts involve overlapping acts but require different showings. A taking establishes the physical element common to several causes of action; conversion requires the additional element of an intent to permanently deprive or a serious interference with ownership; trespass to chattels covers lesser interferences not rising to conversion. Researchers encountering "taking" in older pleading contexts should not assume conversion is also established.
PHYSICAL TAKING vs. REGULATORY TAKING: A physical taking occurs when the government occupies or appropriates property directly. A regulatory taking occurs when regulation restricts use to the point that compensation is required, even though title remains with the owner. The distinction controls which legal test applies and has been the source of significant doctrinal development since the mid-twentieth century. Historical sources predate the regulatory takings doctrine and will not reflect this distinction at all.
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Core Elements
In criminal law and torts, a taking requires:
Control or dominion: The item must pass within the actual power or control of the defendant. Momentary or symbolic contact alone is generally insufficient.
Without consent (in theft-related offenses): The taking must be against the will of the owner or possessor. A voluntary transfer is not a taking in the criminal sense.
Of personal property (in theft offenses): At common law, taking applied to movable goods. The extension to other property types is largely statutory.
In the constitutional context, a taking requires:
Government action: The burden must be attributable to the government, not a private party.
Effect on private property: Real or personal property must be affected. The doctrine has been applied primarily to real property.
Deprivation of a protected interest: Either physical appropriation or, under regulatory takings analysis, a sufficiently severe restriction on use, economic impact, or interference with investment-backed expectations.
Just compensation obligation: Once a taking is established, the government must pay the fair market value of what was taken or the diminution attributable to the regulation.
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Recognized Forms
/SUBTYPES
Physical (or direct) taking: Government physically seizes, occupies, or destroys private property. Compensation is required per se.
Regulatory taking: Government regulation restricts property use so severely that it is treated as a constitutional taking. The leading doctrinal tests are the Penn Central balancing test and the categorical rule for total regulatory takings.
Temporary taking: A taking that is limited in duration but nonetheless requires compensation for the period during which the constitutional deprivation occurred.
Judicial taking: A judicially-recognized but contested category in which a court decision, rather than legislative or executive action, is alleged to effect a taking.
Exaction: A condition imposed on a development permit that, if lacking an essential nexus and rough proportionality to the project's impact, may constitute an unconstitutional taking.
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Why It Matters in Research
The word "taking" is a research trap precisely because it is so familiar. Researchers must identify at the outset which sense the source is using: the criminal/tort sense of physical seizure, or the constitutional sense of compensable government action. These two bodies of law developed largely independently, and a source addressing one may be useless or affirmatively misleading for the other.
The constitutional doctrine has undergone the most significant change over time. Historical sources — including Bouvier and both editions of Black's represented in this corpus — know nothing of regulatory takings as a developed doctrine. That doctrine emerged from twentieth-century Supreme Court jurisprudence, with landmark development from the mid-1970s onward. Any historical dictionary entry on "taking" will speak to physical seizure and criminal law only. Researchers working in regulatory takings must move quickly to treatises, law reviews, and constitutional materials from the modern period.
Within the criminal law context, historical sources use "taking" interchangeably with "caption" in larceny discussions. Corpus materials on larceny, robbery, and trespass will often define the taking element internally — look to those entries and their cross-references rather than relying on a standalone "taking" definition.
Jurisdictional variation in the regulatory context is substantial: some states have enacted heightened property protection statutes ("property rights acts" or "takings legislation") that impose stricter compensation requirements than the federal constitutional floor. State constitutional takings clauses may also be interpreted more broadly than the federal clause. Research confined to federal doctrine may miss significant state-law obligations.
The term "exaction" has emerged as a distinct subtype requiring its own analysis. Do not conflate the exaction cases with the mainstream physical or regulatory taking frameworks when researching permit conditions or development approvals.
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Historical Dictionary Support
Black's (both editions) and Bouvier agree on a single foundational definition: the act of laying hold upon an article, with or without removing it. All three sources place the term in criminal law and torts, and Bouvier adds the clarifying principle that a taking is not complete until dominion or control passes — a point not spelled out in Black's but consistent with its treatment.
Bouvier's cross-references to larceny, robbery, conversion, trespass, trover, and replevin reflect how thoroughly the term is embedded in a network of older common-law actions. That cross-referential structure is useful to researchers navigating the historical corpus, because the doctrinal content is distributed across those entries rather than consolidated here.
What all three historical sources miss entirely is the constitutional dimension. The Takings Clause of the Fifth Amendment was of course in existence when these dictionaries were compiled, but the elaborated regulatory takings doctrine — the idea that regulation short of physical seizure can trigger a compensation obligation — is a twentieth-century development. Researchers who encounter "taking" in these historical sources and assume they are getting a full account of the term will be working with an incomplete picture.
No historical source in this corpus uses "taking" in the regulatory or constitutional sense. That silence is itself informative: it marks the boundary between the historical common-law meaning and modern constitutional doctrine.
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Jurisdictional Note
The regulatory takings doctrine operates primarily at the federal constitutional level, but state courts frequently interpret parallel state constitutional provisions, and several states have enacted statutes imposing compensation requirements beyond the federal baseline. Researchers advising on permit denials, environmental regulations, or land-use restrictions must check applicable state law independently; federal doctrine sets a floor, not a ceiling.
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Encyclopedia Cross-Reference
The Law Mind Constitutional Law Encyclopedia, §66: The Takings Clause — Physical Takings and Per Se Rules
The Law Mind Property Law Encyclopedia, §119: Regulatory Takings — Judicial Takings
The Law Mind Property Law Encyclopedia, §118: Regulatory Takings — Temporary Takings (First English, Tahoe-Sierra)
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