In Witherspoon v. Ince, No. 24-6194 (Oct. 9, 2025), the U.S. Court of Appeals for the Tenth Circuit held that a property owner who alleged that Oklahoma’s system of private takings — where the state authorizes private parties to use eminent domain to take what looks like an easement by necessity over a neighbor’s land for access — is unconstitutional, cannot sue the State under 42 U.S.C. § 1983 to raise that claim.
The private taking is not “under color of state law,” according to the court.
If that seems counterintuitive (after all, the neighbors are literally using a State-authorized process to seize property for their own private uses), the court found a way noodle through it:
Section 1983 creates civil liability for “[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . ., subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.” 42 U.S.C. § 1983 (emphasis added). “The traditional definition of acting under color of state law requires that the defendant in a § 1983 action have exercised power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.”
Slip op. at 3 (citation omitted).
The court concluded that because the complaint alleges only that the neighbors are “private persons,” this isn’t state action or action taken under color of state law. Slip op. at 4. But the court doesn’t seem to grapple with the next logical step: yeah, the neighbors are private persons, but they have been expressly authorized by state law to take property in a way (private taking) that the plaintiff alleges violates the Constitution.
The court rejected that logic, instead holding that the taking here is not the neighbors undertaking a “public function” thus rendering their action “state action,” or action “under color of state law.” In the court’s view, this isn’t a case where the state has delegated to private parties a function usually done by the government. This is a private taking, and even though eminent domain generally may be a sovereign function, a taking by one neighbor to secure access over a neighbor’s property by condemning it, isn’t a public function.
To us, that only works if the these type of private takings are really just claims for easements by necessity by another name. Is there a difference under Oklahoma law? Other than that, it seems like the property owner here would have a pretty good claim in the private condemnation action ongoing in state court that the taking is not for a public use.
But the Tenth Circuit was having none of it:
Because the Landowners’ use of Oklahoma’s private condemnation statutes did not constitute the exercise of a public function or a joint action with the state, the district court correctly dismissed Witherspoon’s § 1983 action against them
Slip op. at 5.
In the end, we view the court here as mostly motivated by the idea that by authorizing these type of actions, the State isn’t acting as some kind of guarantor for the constitutionality of the taking. If that’s the case, let’s see what the state court does if the owner argues that the private taking is unconstitutional.
Witherspoon v. Ince, No. 24-6194 (Oct. 9, 2025)