An interesting and timely decision from the U.S. Court of Appeals for the Fifth Circuit.

In United States v. Bennett, No. 23-40680 (July 24, 2025), way back in the day Hidalgo County, Texas, acquired an easement over her land to construct and maintain a flood-control levee, with the County soon thereafter assigning its rights to the federal government.

Flash forward to 2008, and the feds constructed a portion of the border wall atop the levee, for the dual purposes of flood control (it said) and border protection. Flash forward again to 2020, when the feds instituted an eminent domain proceeding “to construct and maintain fencing, barriers, and related structures to secure the border.” Slip op. at 3.

Bennett then asserted that the original wall built by the feds exceeded the scope of the flood-protection easement which the County had taken, and the feds had therefore been trespassing. This, in turn, meant that the wall was a fixture, and that Bennett was owed just compensation as part of the 2020 taking under the general rule that fixtures built on land by a trespasser belong to the owner. Bennett sought to introduce the opinion of an appraiser about the value of the wall. 

The feds, naturally, had a different view: we believed we could build the wall, and even if we didn’t and this was a fixture, when we build something pursuant to the sovereign power of eminent domain, we’re not subject to your puny trespass laws. The district court agreed with the government, and excluded Bennett’s proffered appraisal testimony. The court certified that issue for interlocutory appeal. 

The Eleventh Circuit affirmed, and agreed with the government: 

The United States asserts that the trespass rule cannot entitle Bennett to the wall’s value because the government acted pursuant to its constitutional power of eminent domain. We agree. The government took Bennett’s property for a public purpose, and no state trespass rule can award ownership of the wall to Bennett because doing so would improperly limit the government’s constitutional power of eminent domain. The government must pay Bennett for what it took—the land—but state law cannot require the government also to pay her for what it paid to build on the land.

Slip op. at 7. 

Relying on PennEast, the court held that the federal power of eminent domain cannot be “limited” by state trespass law, even though “[t]he construction of the wall would certainly constitute a taking.” Id. (“Thus, if the government was acting pursuant to its power of eminent domain, then state law would not apply because it would be an unconstitutional limitation on the federal government’s power of eminent domain.”).  

In short, although the unauthorized installation of the wall was a taking, it is not part of the private property taken here, because Bennett never owned it (because it wasn’t a fixture). Therefore, no just compensation.

Implicit in the court’s analysis is the notion that that the feds can take property by a number of ways. One way, of course, is a straight taking (or as CJ Roberts puts it, an “upfront taking”). Another is to simply grab it as it did here. This is fine with the courts, provided the owner may sue to recover just compensation which presumably the owner could have done here via a Tucker Act claim in the Court of Federal Claims. 

In sum, Bennett is entitled to the value of the land taken but not to the value of the wall. The government acquired the land and built the wall through its eminent-domain power, and it did so for a public purpose. Thus, Texas’s trespass rule could not operate to treat the government as a trespasser and force it to pay Bennett for the wall that it built at its own expense. Without a claim for just compensation for the wall, the expert’s testimony as to the value of the wall is irrelevant. We therefore AFFIRM the order of the district court and REMAND the case for proceedings consistent with this opinion.

Slip op. at 10. 

United States v. Bennett, No. 23-40680 (5th Cir. July 24, 2025)