PARKER, Justice.

In case no. 1110439, the Town of Gurley ("the Town") appeals the trial court's judgment in favor of M & N Materials, Inc. ("M & N"), on M & N's inverse-condemnation claim against the Town. We reverse the trial court's judgment and render a judgment for the Town. In case no. 1110507, M & N cross-appeals the trial court's judgment in favor of the Town and Stan Simpson on other claims. We affirm.

I. Facts and Procedural History

This is not the first time these parties have been before this Court. In Ex parte Simpson, 36 So.3d 15 (Ala.2009) ("Simpson I"), this Court considered petitions for the writ of mandamus filed by the parties based on the same facts that create the basis for the present appeals. We set forth the following pertinent facts in Simpson I:

Simpson I, 36 So.3d at 19-22.

We concluded in Simpson I that M & N had standing to sue the Town and Simpson based on events that had occurred both before and after the sale of the 269 acres owned by M & N ("the property") to Vulcan Lands. In determining that M & N had standing to sue the Town and Simpson based on pre-sale and post-sale events, we also noted that M & N may not be the real party in interest pursuant to Rule 17, Ala. R. Civ. P.4 However, we refused to make a determination on that issue because neither the Town nor Simpson had raised that argument. Simpson I, 36 So.3d at 25.

Concerning the issue of immunity, we concluded that

Simpson I, 36 So.3d at 31.

Following Simpson I, the Town and Simpson sought to amend their answers to assert the affirmative defense that M & N was not the real party in interest under Rule 17. M & N filed a motion to strike the Town's and Simpson's amended answers; M & N argued that the Town and Simpson had waived the affirmative defense of real party in interest based on the fact that the case had been pending for over four years before the Town and Simpson sought to raise the defense. On February 3, 2010, following a hearing, the trial court granted the Town's and Simpson's motions for leave to amend their answers; the trial court entered its judgment "[a]fter review of [Simpson I], a review of all relevant and applicable law, the file and the record in its entirety, and having considered the arguments and representations made by counsel."

The case proceeded to a jury trial beginning on February 14, 2011. The Town and Simpson filed motions for a judgment as a matter of law ("JML") pursuant to Rule 50, Ala. R. Civ. P., at the close of M & N's evidence. The Town argued, among other things, that Art. I, § 23, Ala. Const.1901, did not apply and that M & N could not maintain its inverse-condemnation claim based on the administrative and regulatory actions taken by the Town because such a regulatory "takings" claim is unsustainable under § 235, Ala. Const.1901. The Town and Simpson renewed their motions for a JML at the close of all the evidence. The trial court granted the Town's renewed motion for a JML in part and Simpson's motion for a JML in part; the trial court submitted to the jury M & N's inverse-condemnation claim based upon § 235, Ala. Const.1901, against the Town and M & N's wrongful-interference-with-contractual-or-business-relations claim against Simpson. Before the matter was submitted to the jury, however, the parties and the trial court discussed whether M & N's inverse-condemnation claim was maintainable under § 235. The Town's counsel entered the following objection:

The Town also reasserted its objection to the trial court's inverse-condemnation jury charge after the jury had been charged.

On February 22, 2011, the jury returned a verdict in favor of M & N and against the Town on M & N's inverse-condemnation claim; the jury awarded M & N damages in the amount of $2,750,000, plus 6% interest. The jury also returned a verdict in favor of Simpson and against M & N on M & N's claim of wrongful interference with contractual or business relations against Simpson.

On August 5, 2011, the trial court entered a judgment on the jury's verdict; the trial court amended its judgment on August 11, 2011. The trial court's amended judgment provides, in pertinent part:

(Capitalization in original.) The trial court did not rule on M & N's request for injunctive relief.

On August 19, 2011, the Town filed a renewed motion for a JML pursuant to Rule 50(b), Ala. R. Civ. P. In that same motion, the Town requested alternative postjudgment relief pursuant to Rule 59(e), Ala. R. Civ. P. On November 17, 2011, pursuant to Rule 59.1, Ala. R. Civ. P., the parties consented to extend the 90-day period for ruling on the Town's postjudgment motion, and the trial court entered an order retaining jurisdiction to rule on the Town's postjudgment motion until December 19, 2011. On December 13, 2011, the trial court denied the Town's postjudgment motion. The Town appealed. On January 24, 2012, M & N filed a cross-appeal, naming the Town and Simpson as appellees.

On February 13, 2012, upon motion of the parties, this Court entered an order in both the appeal and the cross-appeal stating that the trial court's order appealed from was not a final judgment in that it failed to dispose of the claim for injunctive relief. As a result, we remanded the case to the trial court for it "to enter a ruling on the claim for injunctive relief." On February 15, 2012, the trial court entered an order, as follows:

(Capitalization in original.)

II. Standard of Review

Different standards of review apply in our determination of the claims before us. In addressing the Town's appeal, which challenges the trial court's denial of its motion for a JML on the inverse-condemnation claim, we apply the following standard of review:

Cheshire v. Putman, 54 So.3d 336, 340 (Ala.2010).

In its cross-appeal, M & N argues that the trial court erred by granting the Town's and Simpson's motions for a JML as to certain claims and by granting the Town's motion to dismiss certain of M & N's claims against it, see supra note 3. Concerning M & N's arguments that the trial court erred by granting the Town's and Simpson's motions for a JML, we apply the standard of review set forth above. Concerning M & N's argument that the trial court's judgment granting in part the Town's motion to dismiss, we apply the following standard of review:

C.B. v. Bobo, 659 So.2d 98, 104 (Ala.1995) (quoting Nance v. Matthews, 622 So.2d 297, 299 (Ala. 1993)).

III. Discussion

A. Case No. 1110439

First, the Town argues that M & N's inverse-condemnation claim, based upon administrative and/or regulatory actions taken by the Town, is not maintainable under § 235, Ala. Const.1901, because, it says, Alabama does not recognize as compensable a regulatory "taking." M & N does not dispute that its inverse-condemnation claim is based upon the Town's administrative and/or regulatory actions and argues that its claim is maintainable under § 235.

Section 235, entitled "Taking of property for public use by municipal and other corporations," provides, in pertinent part:

The parties have not directed this Court's attention to any precedent in which an inverse-condemnation claim based upon a regulatory "taking" by a municipal corporation was brought invoking § 235. The Town argues that, under the plain language of § 235 — that the property must be "taken, injured, or destroyed by the construction or enlargement of its works, highways, or improvements..." (emphasis added) — an inverse-condemnation claim based upon a municipal corporation's regulatory "taking" of property is not sustainable. The Town argues that under § 235 there are essentially two requirements that must be met in order to maintain an inverse-condemnation claim: The party alleging that its property has been taken pursuant to inverse condemnation must prove, first, that the property has been "taken, injured, or destroyed" and, second, that the property has been physically disturbed.

The Town directs our attention to Thompson v. City of Mobile, 240 Ala. 523, 199 So. 862 (1941), among other authorities, in support of its argument that an actual physical disturbance or invasion of the property must occur in order to support an inverse-condemnation claim under § 235. This Court stated in Thompson:

240 Ala. at 527, 199 So. at 865 (final emphasis added). See also Jefferson Cnty. v. Southern Natural Gas Co., 621 So.2d 1282, 1286-87 (Ala.1993) (holding that a jury may resolve a § 235 claim only "where there is evidence of some direct physical injury to the property"); City of Tuscaloosa v. Patterson, 534 So.2d 283, 285-86 (Ala. 1988) (noting that, in a claim brought pursuant to § 235, there must be proof that a government project "causes a direct physical disturbance of a right, either public or private, that the property owner enjoys in connection with his property"); and Alabama Power Co. v. City of Guntersville, 235 Ala. 136, 143, 177 So. 332, 339 (1937) ("We think the proper rule ... is, that just compensation must be made by municipal corporations and other corporations and individuals invested with the privilege of taking property for public use, when, by the construction or enlargement of `its' works, highways, or improvement, there will be occasioned some direct physical disturbance of a right, either public or private, which the owner enjoys in connection with his property....").

We find the Town's argument persuasive. As this Court stated in Jefferson County v. Weissman, 69 So.3d 827, 834 (Ala.2011): "We are cognizant that the long-settled and fundamental rule binding this Court in construing provisions of the constitution is adherence to the plain meaning of the text." Within the plain meaning of its text, § 235 does not make compensable regulatory "takings" by an entity or person vested with the privilege of taking property for public use. As set forth in our long-standing precedent, the taking, injury, or destruction of property must be through a physical invasion or disturbance of the property, specifically "by the construction or enlargement of [a municipal or other corporations'] works, highways, or improvements," not merely through administrative or regulatory acts.

M & N encourages us to look to federal caselaw concerning regulatory "takings" under the final clause of the Fifth Amendment to the United States Constitution, often referred to as the "Just Compensation Clause," in interpreting § 235. However, the language used in the Just Compensation Clause is not similar to the language in § 235. The Just Compensation Clause provides that "private property [shall not] be taken for public use without just compensation." Therefore, the precedent interpreting the Just Compensation Clause does not aid our interpretation of the substantially different § 235.

We also note that M & N could have asserted its inverse-condemnation claim, which is based upon the administrative and regulatory actions of the Town, pursuant to the Just Compensation Clause. See Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency, 535 U.S. 302, 306 n. 1, 122 S.Ct. 1465, 152 L.Ed.2d 517 (2002) ("[The Just Compensation Clause] applies to the States as well as the Federal Government. Chicago, B. & Q.R. Co. v. Chicago, 166 U.S. 226, 239 [17 S.Ct. 581, 41 L.Ed. 979] (1897); Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 160 [101 S.Ct. 446, 66 L.Ed.2d 358] (1980)."). M & N initially asserted its claim as a federal constitutional claim, but it later voluntarily dismissed that claim in order to keep this case in the state trial court. M & N, as master of its complaint, chose to forgo, for strategical purposes, any relief it may have been entitled to under the federal Constitution.

Based on our holding that § 235 does not support M & N's inverse-condemnation claim asserting a regulatory taking by the Town, we reverse the trial court's judgment in favor of M & N on its inverse-condemnation claim and render a judgment in favor of the Town. Our conclusion pretermits the other issues raised by the Town in case no. 1110439.

B. Case No. 1110507

First, M & N argues that the trial court's judgment granting in part the Town's motion for a JML and thereby dismissing M & N's § 23, Ala. Const.1901, claim was in error. The trial court determined that, pursuant to Willis v. University of North Alabama, 826 So.2d 118 (Ala. 2002), § 23 was not applicable to the Town's actions.

Section 23, entitled "Eminent domain," provides:

Further, this Court set forth the following concerning the power of eminent domain and its limitations in Gober v. Stubbs, 682 So.2d 430, 433-34 (Ala.1996):

(Footnotes omitted.)

In Willis, a property owner owned property across the street from a parking lot owned by the University of North Alabama ("UNA"). UNA built a multilevel parking deck on its parking lot; it was assumed that the construction of the parking deck reduced the value of the property owner's property. As a result, the property owner "filed an inverse-condemnation action against UNA, based on the allegation that UNA `took' his property without `just compensation,' in violation of § 23...." 826 So.2d at 119. This Court held that even though the property owner's property was injured, "since no portion of Willis's property was `taken,' or applied to public use by UNA, UNA was not required to compensate Willis under § 23." 826 So.2d at 121. Also significant to the holding in Willis was the overruling of certain holdings in Foreman v. State, 676 So.2d 303 (Ala.1995), as follows:

Therefore, it is clear, under the plain language of § 23 and under Willis, that the trial court properly held that § 23 does not apply in this case. It is undisputed that there was not an actual taking in this case and that M & N has complained only of administrative and/or regulatory actions taken by the Town. Willis makes clear that § 23 applies when a physical taking of the property in question has occurred.7 In the present case, M & N does not allege that there was a physical taking of the property in question. We affirm the trial court's judgment granting the Town's motion for a JML as to M & N's § 23 claim.8

Next, M & N argues that the trial court "erred in granting judgment as a matter of law on M & N's negligence claims." Although M & N cites general authority setting forth the elements of a negligence claim, M & N cites no authority establishing that the Town or Simpson owed M & N a duty. Instead, without citing any authority, M & N generally alleges that the Town and its employees

Then, without citing any facts, M & N generally alleges that the Town "breached those duties, which proximately caused damages to M & N." M & N also generally argues, without citing any facts, that it "presented substantial evidence from which the jury could have determined that [the Town] acted negligently...."

As set forth in our standard-of-review section above, a motion for a JML is properly denied when the nonmoving party has produced substantial evidence to support each element of the party's claim. See Cheshire, supra. M & N, the nonmoving party below and the cross-appellant here, has the burden of demonstrating that it produced substantial evidence to support every element of its negligence claims. M & N has failed to cite any authority to support its assertion that the Town owed M & N a duty and has failed to indicate which facts in the record constitute substantial evidence supporting the elements of its negligence claims. This Court held as follows in University of South Alabama v. Progressive Insurance Co., 904 So.2d 1242, 1247-48 (Ala.2004):

Based on its failure to cite any legal authority or facts demonstrating that the trial court's JML on M & N's negligence claims was in error, we need not consider M & N's argument.

Next, M & N argues that the "trial court erred in dismissing M & N's claims for negligent hiring, retention, and supervision." M & N generally argues that "the trial court erroneously granted [the Town's] motion to dismiss M & N's negligent hiring, retention, and supervision claims," but M & N does not provide this Court with any authority demonstrating that the trial court's judgment was in error. Instead, M & N argues that "a negligent hiring and supervision claim may lie against a municipality" and that the Town "incorrectly argued that it could have no vicarious liability for the negligence of its employees because of discretionary function immunity." However, M & N does not provide this Court with any argument or authority demonstrating that the trial court's judgment was in error. Therefore, we need not consider this argument. See Rule 28(a)(10), Ala. R.App. P., and Progressive Insurance, supra.

Next, M & N argues that the "trial court erred in excluding evidence of Simpson's prior convictions." In City of Birmingham v. Moore, 631 So.2d 972, 974 (Ala.1994), this Court held that "[t]he decision to admit or to exclude evidence is within the discretion of the trial judge, and we will not reverse such a decision absent an abuse of discretion." This Court also held in Moore that

631 So.2d at 973-74. In the present case, M & N has argued only that the trial court erred by excluding Simpson's prior convictions, not that the trial court exceeded its discretion in doing so. M & N generally alleges that it was prejudiced by the exclusion of the evidence of Simpson's prior convictions, but it offers no explanation as to how it was prejudiced. M & N has failed to demonstrate that the trial court exceeded its discretion in excluding the evidence and, thus, has failed to demonstrate reversible error on the part of the trial court.

Lastly, M & N argues that the "trial court erred in granting judgment as a matter of law on M & N's wantonness claims against Simpson" and that the "trial court erred in charging the jury on the affirmative defense of justification on M & N's intentional interference claim." However, M & N fails to cite authority supporting these arguments. M & N does make general allegations concerning the facts to support its argument that the trial court's JML for Simpson on its wantonness claim was in error; however, it does not direct this Court's attention to specific facts supporting its argument. Therefore, we need not consider these arguments. See Rule 28(a)(10), Ala. R.App. P., and Progressive Insurance, supra.9

Conclusion

Based on the foregoing, in case no. 1110439, we hold that § 235 does not support M & N's inverse-condemnation claim that is based upon administrative and/or regulatory actions taken by the Town; thus, we reverse the trial court's judgment in favor of M & N on its inverse-condemnation claim and render a judgment in favor of the Town. In case no. 1110507, we affirm the trial court's judgment.

1110439 — REVERSED AND JUDGMENT RENDERED.

MALONE, C.J., and WOODALL, STUART, BOLIN, SHAW, and WISE, JJ., concur.

MURDOCK, J., concurs in the result.

1110507 — AFFIRMED.

MALONE, C.J., and WOODALL, STUART, BOLIN, SHAW, and WISE, JJ., concur.

MURDOCK, J., dissents.

MURDOCK, Justice (concurring in the result in case no. 1110439 and dissenting in case no. 1110507, as substituted on denial of applications for rehearing on September 27, 2013).

I concur in the result in case no. 1110439; I dissent in case no. 1110507. I write in reference to the latter case.

There are two issues in case no. 1110507: (1) the substantive meaning of the "takings clause" in § 23 of our State Constitution, specifically whether it prohibits "regulatory takings" without just compensation, and, (2) if it does, whether the takings clause in § 23 limits the power of municipalities. I will address both issues in the order stated.

I. The Substantive Meaning of § 23

The claim of inverse condemnation asserted by M & N Materials, Inc., under § 23 of the Alabama Constitution of 1901 was based not on a physical taking of the property at issue, but upon a so-called "regulatory taking" by the Town of Gurley ("the Town"). In case no. 1110507, the main opinion rejects this claim on the ground that

143 So.3d at 15. As discussed below, although Willis may hold that § 23 does apply when there has been a physical taking, it should not be read as holding that this is the only circumstance in which § 23 applies. In any event, the present case is distinguishable from Willis. Further, as also discussed below, I do not agree that the plain language of § 23 forecloses compensation for a so-called "regulatory taking" of property by the government.

A. Distinguishing Willis

I agree that the Court in Willis did rely upon the lack of a physical taking as a basis for ruling against the landowner in that particular case. 826 So.2d at 121. That was the only rationale offered to the Court by the government in that case, however. Id. Moreover, the Court's reliance upon this rationale to decide the particular case before it must be considered in light of the juxtaposed rationales offered to the Court by the parties in that case. The alternative position offered to the Court by the landowner was that governmental action that resulted in a mere "injury" to property, as opposed to an outright physical taking of it, was sufficient to sustain a claim of inverse condemnation under § 23. Id. The Court's opinion, therefore, understandably rejects the landowner's argument and embraces the position that mere "injury" to property does not violate the right expressed in § 23. Importantly for our purposes here, no issue was presented in Willis as to whether a "regulatory taking" would be prohibited by § 23.

Willis involved the construction of a parking deck by the government on property adjacent to the plaintiff's. The plaintiff complained that the presence of this structure resulted in a reduction in the market value of the plaintiff's property and, thus, that his property had been "injured" for purposes of § 23. 826 So.2d at 120. Willis did not involve, as does the present case, a regulatory action by which the government directly and formally imposed restrictions upon the use of the plaintiff's property. Nor did the plaintiff argue that the government's actions had deprived his property of all reasonable uses.10 Accordingly, I cannot find Willis to be dispositive of the issue of the potential application of § 23 in the present case.11

B. Comparing the "Takings Clause" of § 23 of the Alabama Constitution and the "Takings Clause" of the Fifth Amendment to the United States Constitution

The applicable "takings clause" of § 23 reads as follows: "[P]rivate property shall not be taken for, or applied to public use, unless just compensation be first made therefor...." The "Takings Clause" of the Fifth Amendment to the United States Constitution states that private property shall not "be taken for public use, without just compensation." I see no material difference in the wording of these two provisions.

As this Court has recognized:

Pickett v. Matthews, 238 Ala. 542, 547, 192 So. 261, 265-66 (1939). This Court often looks to federal constitutional cases when considering the meaning of a particular word in a constitutional context. See, e.g., Cole v. Riley, 989 So.2d 1001, 1009-10 (Ala.2007) (See, J., concurring specially); Jefferson Cnty. v. Southern Natural Gas Co., 621 So.2d 1282, 1287 (Ala.1993) (looking to United States Supreme Court cases to draw a distinction between inverse condemnation and eminent domain).

The United States Supreme Court has held that "government regulation of private property may, in some instances, be so onerous that its effect is tantamount to a direct appropriation or ouster — and that such `regulatory takings' may be compensable under the Fifth Amendment." Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 537, 125 S.Ct. 2074, 161 L.Ed.2d 876 (2005). As Justice Holmes explained in his watershed decision in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S.Ct. 158, 67 L.Ed. 322 (1922): "[W]hile property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking."

Furthermore, insofar as a taking for "public use" is required, there is no dispute that the zoning of the land at issue here in order to prevent its use as a quarry was done for the purported benefit of the Town and the public at large. Takings jurisprudence in both the federal and the state courts emphasizes the need 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." Armstrong v. United States, 364 U.S. 40, 49, 80 S.Ct. 1563, 4 L.Ed.2d 1554 (1960); City Council of Montgomery v. Maddox, 89 Ala. 181, 188-89, 7 So. 433, 436 (1890). "Whatever is beneficially employed for the community is of public use and a distinction [between this and `public benefit'] cannot be tolerated." Aldridge v. Tuscumbia, C. & D.R. Co., 2 Stew. & P. 199 (Ala.1832).

This is not the first case in which this Court has had the opportunity to discuss federal "regulatory taking" jurisprudence in the context of a claim under § 23 of the Alabama Constitution. In Alabama Department of Transportation v. Land Energy, Ltd., 886 So.2d 787 (Ala.2004), the Court affirmed an inverse-condemnation award under § 23 of the Alabama Constitution based on a "taking" of surface-mineable coal. In so doing, the Court relied upon the doctrine of law of the case in relation to a failure of the State (specifically, the Alabama Department of Transportation ("ADOT")) to object at trial to a jury instruction that the plaintiff was entitled to recover for a "taking" if the jury found that the actions of the State had prevented the plaintiff from mining the coal from its property. Indeed, ADOT committed itself in that case to a position that a "taking" could occur for purposes of § 23 by a so-called "regulatory taking." 886 So.2d at 799. Accordingly, this Court provided the following explanation of ADOT's position in that case, helpful to the present case because of its instructive discussion of federal "regulatory taking" jurisprudence:

Land Energy, 886 So.2d at 797. The Court also noted that, "[w]ith respect to `regulatory takings,' ADOT referred in its trial brief to `a growing body of federal law involving the issue,' citing six decisions of the United States Supreme Court, including Penn Central, supra; Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992); and Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 122 S.Ct. 1465, 152 L.Ed.2d 517 (2002)." 886 So.2d at 798. Further, citing Lucas, ADOT took the position that "`[a] regulatory taking occurs where the owner retains the property, but its use is now regulated to such a degree that it is the legal equivalent of a taking.'" Id.

The Court's opinion in Land Energy went on to explain as follows:

Land Energy, 886 So.2d at 798.

The Court ended its analysis of the issue with an extensive review of the trial testimony relevant to the landowner's "reasonable expectation of a return on investment." 866 So.2d at 799-803. Based on this evidence, it concluded that the landowner had been deprived of an "identifiable property-use interest" within the context of the regulatory-taking jurisprudence applicable to that case. 866 So.2d at 802-03.

Although we are not bound by the federal regulatory jurisprudence relied upon by the Court in Land Energy, I am persuaded that we should apply some form of it to § 23 claims, given the virtually identical language of that section of our State constitution and of the Fifth Amendment to the United States Constitution. In this case, there is ample evidence from which the jury could have concluded that the property was suited primarily for mining the stone beneath its surface and not for the agricultural purpose for which it was zoned and that, as a result, there has been an "unduly harsh impact upon the owner's use of the property." 866 So.2d at 798. More specifically, the owner in this case has been deprived of any and all reasonable uses of its property and, concomitantly, of a distinct and "reasonable investment-backed expectation." I therefore find the Town's actions to have been a regulatory taking that is prohibited by § 23 in the absence of adequate compensation.

II. The Takings Clause of § 23 Does Limit Municipalities (And § 235 Does Not Dictate Otherwise)

Two provisions of the Alabama Constitution of 1901 are germane to the issue before us, §§ 235 and 23. To the extent that the Town argues that § 23 does not apply to takings by municipal corporations because § 235 instead applies, I do not follow the Town's logic. It is true that § 235 does apply to municipal corporations. This does not mean, however, that § 23 does not also apply to them. For the reasons discussed in more detail in Part II.B., below, § 23 prevents a municipal corporation from taking private property without compensating the landowner therefor. Before turning to § 23 per se, however, I will first address the provisions of § 235.

A. Section 235 Does Not Empower Municipalities to Take Property for Reasons Other than Constructing "Public Works" Without Compensating the Landowner

The first critical point to be made concerning § 235 is that § 235 is not the source of municipalities' power to take property. That is, § 235 is not the provision that creates or defines the nature of that power in municipalities. The first sentence of § 235 simply begins with the following reference: "Municipal ... corporations... invested with the privilege of taking property for public use...." This language presumes that power to take property of some nature already has been "invested" in a municipality apart from § 235 itself. (The source of the power in municipalities is discussed below.)

Accordingly, and this second point is closely tied to the first, the fact that § 235 then continues by expressing limitations or conditions (the payment of compensation) on certain uses of that power (the "construction or enlargement of [the municipal corporation's] works, highways, or improvements") is no basis for concluding that the referenced uses are the only possible uses of the power of eminent domain by a municipality. It means only that these are the uses of the power of eminent domain as to which the drafters of § 235 chose to reiterate a limitation on municipalities in that section, probably because the more general limitations imposed by § 23 (as discussed below) were also in place and the uses referenced in § 235 were the most commonly used purposes of eminent domain by municipalities at that time. See note 13, infra.12

In other words, if, consistent with the discussion in Part I of this writing, we accept the general notion that "taking" of private property can entail more than just the physical taking of property (i.e., a taking for "the construction or enlargement" of public works as addressed in § 235), then it is important to recognize what § 235 does and does not say regarding those types of taking that it does address. What § 235 does say is that there is an affirmative obligation on the part of a municipal corporation to pay compensation whenever it does take or destroy property for the construction or enlargement of a public-works project. What § 235 does not say is that a municipal corporation can take or destroy private property only for the construction or enlargement of public-works projects or, more importantly, that if in fact a municipality does take or destroy private property for some purpose other than for the construction or enlargement of a public-works project, it need not worry about compensating the landowner for that taking.

In his discussion of the relationship of §§ 235 and 23, however, Justice Parker contends that an understanding of § 23 as limiting the authority of municipalities would be contrary to the principle that §§ 23 and 235 should be read in pari materia. 143 So.3d at 48 (Parker, J., concurring specially). I find the converse to be true. The limitations on municipal action expressed in § 235 are entirely consistent with the understanding that § 23 recognizes the rights of private landowners and a corresponding right to just compensation when their property is "taken" by force of governmental action. As discussed above, § 235 simply makes clear that there is in fact a right to receive compensation when the taking is by a municipality for a public-works project, this more than likely being the purpose for which it was anticipated in 1901 that a municipality would take a citizen's property.13 A reading of this affirmative language as somehow negating the right to receive compensation in any circumstance not described therein would be the reading that would conflict with the plain language of § 23 and that would run counter to the principle of reading the two provisions in pari materia. The specific provisions of § 235 do not negate the more general protection afforded by § 23 to the citizens of this State against the "general power of government" to take their property without compensation.

Section 23 is part of Article I of the Alabama Constitution, an Article entitled "Declaration of Rights." A reading of § 235 that blocks the application of § 23 to takings by municipal corporations also runs counter to the assurance in another provision of that "Declaration of Rights," specifically § 36, that the rights recognized by that Declaration will be held "inviolate" against "the general power of government":

(Emphasis added.)

I therefore must conclude that what we have in § 235 is simply a more specific assurance of the right to compensation from a municipality when it acts in certain ways or, as Justice Parker puts it, "a further limitation upon the eminent-domain power" that is "specifically applicable to corporations, including municipal corporations." 143 So.3d at 47.

In an effort to support the view that § 235 applies to municipal corporations to the exclusion of § 23, however, Justice Parker relies upon the 1911 case of Duy v. Alabama Western R.R., 175 Ala. 162, 57 So. 724 (1911). Specifically, he infers from the analysis in Duy that § 23 applies only to the State. I do not read Duy as so holding.

The only question under consideration in the portion of Duy quoted by Justice Parker was what limitations on taking are imposed by the Constitution against the State:

175 Ala. at 173-75, 57 So. at 727-28. The quoted passage correctly notes that, as between §§ 23 and 235, the only passage that applies to the State is § 23. The fact that § 235 does not apply to the State, however, does not mean that § 23 does not apply to municipalities, and the passage quoted from Duy certainly does not say that it does.

In short, there is nothing in the language of § 235 that deprives landowners of the fundamental right guaranteed by § 23 of the Constitution merely because the governmental entity doing the "taking" is a municipal corporation. Moreover, for the various reasons discussed below, the rights expressed in § 23 and the limitations on governmental power that inherently correspond to those rights clearly do apply to "takings" by municipal corporations.

B. Section 23 Limits Municipal Corporations

1. The Intrinsically Limited Nature of the Power

Section 23 of the Alabama Constitution, in its entirety, reads:

(Emphasis added.)

It is contended that § 23 does not apply to municipalities because of the two references to "the legislature" in the first and fourth clauses of § 23. It is clear, however, that these references do not mean that the power to take property, when exercised by a municipality, is somehow less subject to the limitations expressed in the above-emphasized "takings clause" than when that power is exercised by the legislature itself. Specifically, it is clear that the limitations of § 23 are intended, in the words of § 36 discussed above, as limitations on "the general powers of government." That is, the term "legislature" must be treated as a reference to the State itself (much like the word "Congress" in the First Amendment to the United States Constitution14 is treated as a reference to the federal government generally15).

Moreover, the use of a reference to "the legislature" in reference to restrictions on the power of the State to take private property is particularly appropriate because of the intrinsically legislative nature of that power. Although that power to take private property does belong to the State as a sovereign entity, the specific repository of that power within the State is in fact "the legislature." The legislature may vest some other agency of the government or some political subdivision with the power, but when it does so it is a portion of the legislature's power that is being vested. Excluding the federal government, there is no other power to take property. The power that is held by the legislature is the whole of it.

26 Am.Jur.2d Eminent Domain § 5 (footnotes omitted). See also, e.g., Green St. Ass'n v. Daley, 373 F.2d 1, 6 (7th Cir.1967) ("The power of eminent domain is legislative in character.").

Section 23 defines a limitation on this power of eminent domain held by the State through its legislature. This Court set forth the following concerning the power of eminent domain and its limitations in Gober v. Stubbs, 682 So.2d 430, 433-34 (Ala. 1996):

(Emphasis added.)

Accordingly, if the power of eminent domain held by the State and reposited in the legislature is characterized by some limitation, then, by definition, some portion of that power given by the legislature to another entity is characterized by that same limitation. Again, the power held in the first instance by the legislature is the whole of the power of eminent domain in the State of Alabama. There is no other. The power given to a political subdivision, including as in this case a municipal corporation, is but a portion of the same power that resides in the legislature. See generally, e.g., Peak v. City of Tuscaloosa, 73 So.3d 5, 16 (Ala.Crim.App.2011) ("Municipal corporations both possess and exercise two kinds of functions and powers, one governmental and the other proprietary or business.... The one is a part of the sovereign power of the state, delegated by the Legislature." (emphasis added)); Cooper v. Town of Valley Head, 212 Ala. 125, 126, 101 So. 874, 875 (1924) (explaining that, "in the exercise of the police powers conferred thereon, [a municipal corporation] is essentially a public agency, a local unit of government, invested with a portion of the sovereign power of the state, for the benefit of its inhabitants." (emphasis added)).16 If that power is limited in the hands of the State, then so it is in the hands of a municipality.

2. The Limited Nature of Municipalities

All of this may also be viewed from the slightly different perspective that a municipality is a creature of the State (and specifically of the legislature) that has no inherent power of its own, but only that power the legislature gives it.17 The State of Alabama (or our legislature, if one prefers) therefore cannot confer upon a municipality, as a political subdivision of its creation, some authority or ability to act in relation to the State's citizens that the State, the creating entity, itself does not possess.

Yeilding v. State ex rel. Wilkinson, 232 Ala. 292, 295, 167 So. 580, 582 (1936) (quoting State ex rel. Wilkinson v. Lane, 181 Ala. 646, 62 So. 31, 34 (1913)). Moreover, as the Court in Yeilding continued:

Yeilding, 232 Ala. at 295-96, 167 So. at 582 (emphasis added). See also id., 232 Ala. at 297, 167 So. at 584 (referring to the power of the legislature to delegate non-legislative powers "which it may itself rightfully exercise."18

56 Am Jur.2d Mun. Corp. § 90 (2013) (emphasis added).

The legislature of Alabama has conferred upon the Town a portion of the State's power to zone property19 and a portion of the State's power to take private property for public purposes.20 As discussed in Part I, neither of these powers in the hands of the State could be used to accomplish an uncompensated "regulatory taking" of M & N's property. Neither can they be so used by the Town.

3. Our Cases Apply § 23 to Municipalities

Consistent with all the foregoing, in a case relied upon by the Town in its brief to this Court and characterized by the Town itself as a § 23 case, the Alabama Court of Civil Appeals recognized that "Article I, § 23, Ala. Const. (1901), requires that before a municipality may take private property for public use, it must pay just compensation to the property owner." Parrish v. City of Bayou La Batre, 581 So.2d 1101, 1102 (Ala.Civ.App.1990) (relying on § 23 to uphold a municipality's exercise of its power of eminent domain). See also Opinion of the Justices No. 155, 264 Ala. 452, 88 So.2d 778 (1956) (providing advisory opinion to the Governor of the State of Alabama in a manner that contemplated the applicability of § 23 of the Alabama Constitution to municipalities); Chichester v. Kroman, 221 Ala. 203, 128 So. 166 (1930) (discussing § 23 and making no distinction between the restraint it places on the State and the restraint it places on municipal corporations). See also City of Dothan v. Wilkes, 269 Ala. 444, 114 So.2d 237 (1959) (citing both §§ 23 and 235 as "constitutional ... provisions relating to eminent domain [that] comprehend compensation for damage to property" taken by a municipality for purposes of constructing a public roadway); Blankenship v. City of Decatur, 269 Ala. 670, 115 So.2d 459 (1959) (treating § 23 as the applicable provision governing the legality of an alleged taking by a municipality of private property); Jones v. City of Huntsville, 47 Ala.App. 595, 259 So.2d 277 (Ala.Civ.App. 1971) (measuring sewer assessment imposed by the City of Huntsville against the restrictions of imposed by § 23).

III. Conclusion

Under § 23, the State cannot do indirectly by regulation what it cannot do directly by a physical taking. If, notwithstanding the purported protection of the rights of landowners and the corresponding limitation on State action as expressed in § 23, the State can create a political subdivision with the power to act free of those limitations, then the purported recognition of those rights and the purported assurance in § 36 that those rights will be held "inviolate" against "the general powers of government" are hollow.

For the reasons discussed above, I respectfully dissent.

On Applications for Rehearing

PARKER, Justice.

1110439 — APPLICATION OVERRULED; OPINION OF DECEMBER 21, 2012, MODIFIED.

SMITH, Special Justice,* concurs.

MOORE, C.J., and STUART, PARKER, and SHAW, JJ., concur specially.

BOLIN, WISE, and BRYAN, JJ., concur in the result.

MURDOCK, J., concurs in the result, withdraws his special writing issued on original submission on December 21, 2012, and substitutes a new writing.

MAIN, J., recuses himself.

1110507 — APPLICATION OVERRULED; OPINION OF DECEMBER 21, 2012, MODIFIED.

SMITH, Special Justice,* concurs.

MOORE, C.J., and STUART, PARKER, and SHAW, JJ., concur specially.

BOLIN, WISE, and BRYAN, JJ., dissent.

MURDOCK, J., dissents, withdraws his special writing issued on original submission on December 21, 2012, and substitutes a new writing.

MAIN, J., recuses himself.

MOORE, Chief Justice (concurring specially).

I agree with the main opinion on original submission that a "regulatory takings" jurisprudence does not comport with Art. I, § 23, Ala. Const. 1901. The underlying issues in this case are an unconstitutional use of both zoning and annexation. M & N Materials, Inc. ("M & N"), brought claims for declaratory relief on those issues.1 The injury done to M & N was done through zoning and annexation of land, not through eminent domain under § 23. Thus, recognizing regulatory takings based on § 23 does not address the underlying root causes that have impelled many state courts to adopt Justice Oliver Wendell Holmes's "regulatory takings" framework. Courts have no such creative powers, for the Constitution gives the judiciary no legislative powers to say what the law shall be for future applications.

Although the Court lacks the legislative power to create new remedies, the Court has power to strike down unconstitutional acts of legislative bodies. "[W]henever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former." The Federalist No. 78 (Alexander Hamilton), at 467 (Clinton Rossiter ed., 1999). "The constitution of the State ... is the paramount, supreme law, of primary obligation. All legislative enactments are subservient to it, and if they conflict with it, are without validity." City of Mobile v. Stonewall Ins. Co., 53 Ala. 570, 575 (1875). Because

The Federalist No. 78, at 466.

I believe that taking and zoning are two separate issues. Courts have adopted regulatory takings without addressing the underlying problem of unconstitutional state and local regulations. Thus, the fundamental issue is whether the Town of Gurley's actions are constitutional under zoning and annexation law, not whether the Town's actions may be somehow converted into compensable injuries through a takings construct. In this special writing, I will address Alabama's laws governing zoning and annexation and explain why the text of § 23 of the Constitution may not be applied to create regulatory takings.

I. Zoning and Annexation

A. Zoning

Our general rule is that "[a]n arbitrary and capricious ordinance should be set aside whether there is, or is not, a comprehensive zoning plan." COME v. Chancy, 289 Ala. 555, 565, 269 So.2d 88, 97 (1972). A zoning ordinance may be set aside if it "`passes the bounds of reason and assumes the character of a merely arbitrary fiat.'" Leary v. Adams, 226 Ala. 472, 476, 147 So. 391, 394 (1933). The ultimate test "is whether the ordinance creates zones... that ... are consistent with the land use pattern of the area, and bear a substantial relationship to the public health, safety, morals, and general welfare." Chancy, 289 Ala. at 565, 269 So.2d at 97.

Zoning may be "arbitrary and capricious" in several ways. First, zoning that is inconsistent with a comprehensive plan is arbitrary and capricious. Zoning must be done "in accordance with a comprehensive plan." § 11-52-72, Ala.Code 1975. "There must be a comprehensive plan.... [T]he owner of property may use it as he sees fit, provided it is not a nuisance ... nor within the prohibition of zoning ordinances." Davis v. City of Mobile, 245 Ala. 80, 82-83, 16 So.2d 1, 3 (1943) (emphasis added).

Second, zoning that leaves the exercise of property rights to the whims of special groups is arbitrary and capricious. "Nor can the exercise of property rights be left to the caprice, whim or aesthetic sense of a special group of individuals who may object to the use by a property owner of the rights fixed by such ordinance or left unrestricted thereby." Johnson v. City of Huntsville, 249 Ala. 36, 40, 29 So.2d 342, 345 (1947). See City Council of Montgomery v. West, 149 Ala. 311, 314, 42 So. 1000, 1000 (1907) ("`Ordinances which invest a city council ... with a discretion which is purely arbitrary, and ... exercised in the interest of a favored few, are ... invalid.'" (quoting Smith on the Modern Law of Municipal Corporations § 530)).

Third, zoning that lacks a substantial relation to the public health, safety, morals, and general welfare is arbitrary and unconstitutional. Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 395, 47 S.Ct. 114, 71 L.Ed. 303 (1926). The police powers may not be used to impose unreasonable and unnecessary zoning ordinances "upon the use of private property.... [G]overnmental interference by zoning ordinances with such use, is not unlimited, and ... should bear some substantial relation to the public health, safety, morals, or general welfare." Leary v. Adams, 226 Ala. at 474, 147 So. at 392.

This Court has said that constitutional rights "cannot be abridged or destroyed under the guise of police regulations." First Avenue Coal & Lumber Co. v. Johnston, 171 Ala. 470, 473, 54 So. 598, 599 (1911). See Panhandle E. Pipe Line Co. v. State Highway Comm'n of Kansas, 294 U.S. 613, 622, 55 S.Ct. 563, 79 L.Ed. 1090 (1935) ("The police power of a state ... is subordinate to constitutional limitations."). Police powers are an aspect of legislative power or the general power of government, or both. See Art. IV, § 44 ("The legislative power of this state shall be vested in a legislature...." (emphasis added)), and Art. I, § 36 ("[E]verything in this Declaration of Rights is excepted out of the general powers of government, and shall forever remain inviolate." (emphasis added)).

However, the Constitution also protects the rights of private property and confines the government to the sole object of protecting the citizen's property. See Art. I, § 13, Ala. Const. 1901 ("[E]very person, for any injury done him, in his lands ... shall have a remedy by due process of law...."); Art. I, § 35, Ala. Const. 1901 ("That the sole object and only legitimate end of government is to protect the citizen in the enjoyment of life, liberty, and property....").

Thus, whether viewed as an aspect of general powers of government referenced in Art. I, § 36, or the legislative powers referenced in Art. I, § 44, a local government's use of the police powers to enact zoning ordinances may not "abridge or destroy" Alabama's constitutional protections of private property contained in Art. I, §§ 13 and 35. Johnston, 171 Ala. at 473, 54 So. at 599.

Fourth, spot zoning is arbitrary and capricious. Spot zoning occurs when municipal officials attempt to partially zone a municipality or zone by "piecemeal." Johnson v. City of Huntsville, 249 Ala. 36, 29 So.2d 342 (1947). As stated above, "[a]n arbitrary and capricious ordinance [will] be set aside [and] ... any theory of `spot zoning' would have to give way to the larger principle." Chancy, 289 Ala. at 565, 269 So.2d at 97. Alabama's rule limits spot zoning to cases where no comprehensive plan exists. Shell Oil Co. v. Edwards, 263 Ala. 4, 9, 81 So.2d 535, 540 (1955); Haas v. City of Mobile, 289 Ala. 16, 21, 265 So.2d 564, 568 (1972).2

B. Annexation

The Town of Gurley's annexation of the quarry property is another fundamental issue underlying this case. "Alabama's statutory methods of annexation require that property owners consent to the annexation before an annexation of their property can occur. See Ala.Code 1975, § [§ ] 11-42-1 through 11-42-88." City of Fultondale v. City of Birmingham, 507 So.2d 489, 491 (Ala.1987) (plurality opinion) (emphasis added) (noting that unanimous consent is not required under all methods of annexation). "`[A]n unreasonable annexation is invalid or void.'" City of Birmingham v. Community Fire Dist., 336 So.2d 502, 504 (Ala.1976) (quoting 2 McQuillin, Municipal Corporations § 7.23 (Rev. ed., 1966)). "`[A] municipal corporation may not extend its boundaries by the annexation of territory ... where it would be unreasonable to do so.'" Id.

II. Eminent Domain

The ultimate question, however, is whether there is an additional ground for relief under the eminent-domain provision of the Alabama Constitution. Section 23, Ala. Const. 1901, states, in relevant part: "[P]rivate property shall not be taken for, or applied to public use, unless just compensation be first made therefor." Since so-called "regulatory takings" were not recognized in 1901 when our current Constitution was adopted, we have no direct evidence as to whether the people intended for § 23 to apply to this kind of case. Consequently, an exposition of § 23 is needed to determine whether "regulatory takings" are prohibited by the letter and the spirit of § 23.

The Dutch jurist Hugo Grotius first coined the term "eminent domain" in his work De Jure Belli ac Pacis Libri Tres ("On the Law of War and Peace in Three Books"). Alberto B. Lopez, Weighing and Reweighing Eminent Domain's Political Philosophies Post-Kelo, 41 Wake Forest L.Rev. 237, 245 (2006). Grotius said the state had the power of eminent domain "over its citizens and over the property of citizens for public use." 2 Hugo Grotius, De Jure Belli ac Pacis Libri Tres 102 (Francis W. Kelsey trans., Oxford Univ. Press 1925) (1625). According to Grotius, the proper exercise of eminent domain had two requisites: "the first requisite is public advantage; then, that compensation from the public funds be made, if possible, to the one who lost his right." Id. at 385. However, Grotius reasoned that the state had the power of eminent domain because "full private ownership [of property] was first acquired in common for the state or its head; and that then a distribution was made individually to private persons, in such a way, nevertheless, that their ownership was dependent on that earlier ownership." Id. at 219. Thus, Grotius reasoned that private property ultimately "belongs to the state under the right of eminent domain." Id. at 807. This rationale gave rise to Grotius's rule:

Id. Thus, Grotius believed that the state could take private property for public use so long as just compensation was given, but his reasoning suggests a liberal interpretation of that rule: the state could use or exercise dominion over private property so long as the state or the public considered it desirable to the public advantage.

The common law also recognized the legislature's right to take private property for public use upon just compensation, but under a rationale quite different from Grotius's, and one that provided more protection to private-property owners. Blackstone wrote:

1 William Blackstone, Commentaries *139. Thus, unlike Grotius, the common law held private-property rights in such a high regard that the common good alone was not a sufficient justification for violating them. This is because private property is a gift of Almighty God, not the state:

2 William Blackstone, Commentaries *208. Grotius viewed the power of eminent domain as the right of the state or the public to exercise dominion over what was already theirs for the sake of the public good. In contrast, the common law viewed the power of eminent domain as the public acting "as an individual, treating with an individual for an exchange." Id.

The Fifth Amendment of the United States Constitution, which was ratified in 1791, provides: "[N]or shall private property be taken for public use, without just compensation." Justice Thomas interprets the Fifth Amendment as follows:

Kelo v. City of New London, 545 U.S. 469, 508-09, 125 S.Ct. 2655, 162 L.Ed.2d 439 (2005) (Thomas, J., dissenting). Consequently, reading the natural language of the Federal Constitution along with the historical and philosophical backdrop of the common law, it appears that the Founders understood the right of eminent domain to be the right of the government to take private property only if the government or public would actually use it. This view comports with Blackstone's view of eminent domain as an exchange rather than Grotius's view of eminent domain as the state's exercise of dominion over private property for the public good.

Alabama's original eminent-domain provision in the 1819 Constitution was nearly identical to the eminent-domain provision of the Federal Constitution: "[N]or shall any person's property be taken or applied to public use, unless just compensation be made therefor." § 13, Ala. Const. 1819. Despite the fact that other parts of our current eminent-domain provision are different from the Alabama Constitution of 1819, the operative language at issue in this case is essentially the same: "[P]rivate property shall not be taken for, or applied to public use, unless just compensation be first made therefor." § 23, Ala. Const. 1901.

Thus, reading § 23 in light of Alabama's original eminent-domain provision, the similar federal constitutional provision, and the common law, the conclusion is that a "taking" under § 23 requires an exchange between the State and the private-property owner by which the State provides just compensation for property that the State or the public will actually employ. Consequently, the Town of Gurley's zoning ordinance is not a "taking" under § 23. There has been no exchange between the Town and M & N Materials, Inc., and neither the public nor the State are going to use or employ the property in question. On the contrary, instead of taking the property so that the State or public can use it, the Town has left the property with its owners but has restricted how the private owner may use it. While this appears to be a case of spot zoning, or at least arbitrary and capricious zoning, it is not a taking under § 23.

III. Conclusion

This case is about zoning, not takings. Every act of zoning is a "taking" in a sense, because the state takes some rights of use away from the owner. Nevertheless, the type of taking contemplated by § 23, Ala. Const. 1901, is a taking where property is exchanged from the private-property owner to the state for the state or public's employment. Because the Town of Gurley has not taken property in that manner in this case, M & N's injuries are not redressable through § 23, Ala. Const. 1901. M & N still has a remedy available through declaratory and injunctive relief, as do all private-property owners who are subjected to spot zoning or arbitrary and capricious zoning ordinances. Thus, although I encourage M & N to reinstate its claim for declaratory and injunctive relief, I cannot grant M & N the relief it seeks by stretching § 23, Ala. Const. 1901, beyond what it says and means. Therefore, I concur in overruling the applications for rehearing.

PARKER, Justice (concurring specially).

I concur in the decision overruling the applications for rehearing; I write specially to note the tension between this Court's strong support for an individual's fundamental right to property and this Court's exercise of judicial restraint in interpreting the Alabama Constitution of 1901. I also write to note that M & N Materials, Inc. ("M & N"), is not without a remedy. M & N appropriately challenged the constitutionality of the exercise of the police power by the Town of Gurley ("the Town") in passing the at-issue zoning ordinance; M & N's constitutional challenge was dismissed without prejudice, and M & N intends to refile it. Lastly, I write to respond to Justice Murdock's substituted dissent.

First, an individual has a fundamental right to property. William Blackstone defined an individual's property rights at common law as including "the free use, enjoyment, and disposal of all his acquisitions, without any control or diminution, save only by the laws of the land." 1 William Blackstone, Commentaries *134. Consistent with Blackstone's view of an individual's private-property rights as fundamental, in Smith v. Smith, 254 Ala. 404, 409, 48 So.2d 546, 549 (1950), this Court stated that "it should never be forgotten that the right to control one's property is a sacred right which should not be taken away without urgent reason." Indeed, property rights have historically been provided strong protection in this Country and have been the cornerstone in the development of this nation. See Page Carroccia Dringman, Regulatory Takings: The Search for a Definitive Standard, 55 Mont. L.Rev. 245, 248 n. 16 (1994) ("`Next to the right of liberty, the right of property is the most important individual right guaranteed by the [federal] Constitution and the one which, united with that of personal liberty, has contributed more to the growth of civilization than any other institution established by the human race.' [Senator Steve Symms, The Private Property Rights Act (1991),] at 11 (citing William H. Taft, 27th President of the United States (1906)).... `The moment the idea is admitted into society that property is not as sacred as the laws of God, and there is not force of law and public justice to protect it, anarchy and tyranny commence.' Id. at 11 (citing John Adams, 2d President of the United States (1821)).").

In 1901, the year the current Alabama Constitution was ratified, the threat of regulatory "takings" of property through a municipality's authority to pass zoning regulations was not an obvious threat to an individual's property rights.3 In 1926, the Supreme Court of the United States recognized the inconspicuous threat zoning laws posed to property rights in Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 386, 47 S.Ct. 114, 71 L.Ed. 303 (1926), its landmark decision concerning zoning laws: "Building zone laws are of modern origin. They began in this country about 25 years ago." In fact, it was not until 1909 that Los Angeles, California, became the first major American city to enact a zoning ordinance. Michael Lewyn, New Urbanist Zoning for Dummies, 58 Ala. L.Rev. 257, 262 (2006). New York City followed suit in 1916, and municipalities' use of zoning laws then spread rapidly throughout America. Id. By 1920, 904 cities had zoning ordinances, and, later in the 1920s, recognizing the growing use of local zoning ordinances, the Federal Department of Commerce drafted a model Standard State Zoning Enabling Act. Id. I include this brief history of zoning ordinances in America to demonstrate that zoning ordinances passed by local municipalities were nonexistent and unforeseeable in Alabama when the current Alabama Constitution was ratified in 1901.

The applicable provision of our Constitution is Article XII, § 235, Ala. Const. 1901, which states:

Section 235 plainly states that compensation is due a property owner when his land has been "taken, injured, or destroyed by the construction or enlargement of [a municipality's] works, highways, or improvements...." (Emphasis added.) In other words, under § 235, compensation is due when property is taken by a municipality for public works. When compensation is mandated in a for-public-works situation, it precludes regulatory "takings" through zoning.

In my dissent to Chism v. Jefferson County, 954 So.2d 1058 (Ala.2006), I stated the following concerning constitutional interpretation:

954 So.2d at 1099 (Parker, J., dissenting). Further, in Ex parte James, 836 So.2d 813, 834-35 (Ala.2002), this Court set forth the following caution concerning its duty to interpret the Constitution:

In his article Interpreting the Alabama Constitution, 71 Ala. Law. 286 (July 2010), Marc James Ayers, discussing Ex parte Melof, 735 So.2d 1172 (Ala.1999), set forth a cautionary tale concerning this Court's role as final arbiter of the Alabama Constitution:

71 Ala. Law. at 289-90.

As fervently as I desire to protect the fundamental property rights of Alabamians, §§ 23 and 235 of the Alabama Constitution simply do not make a regulatory "taking" compensable. It would be unwise to throw to the wind the caution set forth by this Court in James and declare that §§ 23 and 235 of our Constitution makes regulatory "takings" compensable. Such an "interpretation" of the Alabama Constitution would not be based on the text of the Constitution, but upon what I believe the law ought to be. As set forth by Justice Houston in his special writing in Melof, supra, set forth at length in Ayers's article quoted above, the people of Alabama, by ratifying the Alabama Constitution, have established a paper boundary — the Constitution — that this Court must not cavalierly breach based on what it personally desires. Declaring a constitutional right where one does not exist, no matter how much I desire it, would violate my principles of judicial restraint, and turning a blind eye to the express for-public-works limitation in our pre-zoning 1901 constitutional provision would violate my principles of strict constructionism.

Next, I also write to express that this Court's decision in Town of Gurley v. M & N Materials, Inc., [Ms. 1110439, 1110507, December 21, 2012] 143 So.3d 1 (Ala.2012), does not bar M & N from seeking relief from the Town's zoning regulations under alternate legal theories available to M & N. First, M & N could have maintained its claim that it initially filed under the Fifth Amendment to the United States Constitution. M & N voluntarily dismissed its Fifth Amendment claim and proceeded only under the Alabama Constitution, thereby forgoing any protections afforded M & N under the federal Constitution. In fact, M & N must seek compensation through any procedures a State may have provided for doing so before its Fifth Amendment claim is ripe for adjudication; in other words, M & N must be denied just compensation before it has a Fifth Amendment claim. See Williamson Cnty. Reg'l Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172, 194-95, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985) ("A ... reason the taking claim is not yet ripe is that respondent did not seek compensation through the procedures the State has provided for doing so. The Fifth Amendment does not proscribe the taking of property; it proscribes taking without just compensation.... Similarly, if a State provides an adequate procedure for seeking just compensation, the property owner cannot claim a violation of the Just Compensation Clause until it has used the procedure and been denied just compensation."); and San Remo Hotel, L.P. v. City & County of San Francisco, California, 545 U.S. 323, 346, 125 S.Ct. 2491, 162 L.Ed.2d 315 (2005) ("The requirement that aggrieved property owners must seek `compensation through the procedures the State has provided for doing so,' [Williamson County,] 473 U.S., at 194, does not preclude state courts from hearing simultaneously a plaintiff's request for compensation under state law and the claim that, in the alternative, the denial of compensation would violate the Fifth Amendment of the Federal Constitution."); see also Kenneth B. Bley, Use of the Civil Rights Act to Recover Damages in Land Use Cases, SM040 ALI-ABA 207 (American Law Institute 2007) (also published in Inverse Condemnation and Related Government Liability: The Response from State and Federal Courts, Legislatures, and Initiatives, and How It Affects Your Client Today (American Law Institute 2007)).

Second, M & N may refile its claims for a declaratory judgment and injunctive relief that were dismissed without prejudice by the trial court. In an amended complaint filed by M & N in the trial court, M & N requested a declaratory judgment and injunctive relief on the basis that the zoning ordinance at issue in this case was "void, invalid, and/or unconstitutional." M & N's claim challenged as unconstitutional the Town's use of its police power, not its use of its conferred power of eminent domain.

In Haas v. City of Mobile, 289 Ala. 16, 20, 265 So.2d 564, 567 (1972), this Court stated: "It is well established in our jurisdiction that zoning is a legislative act, Ball v. Jones, 272 Ala. 305, 132 So.2d 120 [(1961) ], which rests on the exercise of police powers of a municipality, Fleetwood Development Corp. v. City of Vestavia Hills, 282 Ala. 439, 212 So.2d 693 [(1968) ]." See also Leary v. Adams, 226 Ala. 472, 474, 147 So. 391, 392 (1933) ("The authority for zoning laws is found within the bounds of the police power...."); Ziegler, Rathkopf's The Law of Zoning & Planning § 1:2 ("Police power in the land-use control context encompasses zoning and all other government regulations which restrict private owners in their development and use of land.").

This Court has distinguished between an exercise of a municipal corporation's police power and the exercise of its conferred power of eminent domain and the remedies available to a property owner in relation to a municipal corporation's exercise of those powers. In City of Mobile v. McClure, 221 Ala. 51, 127 So. 832 (1930), the City of Mobile cut down a tree situated on property the City of Mobile did not own but that was adjacent to a street it did own; the owner of the property upon which the tree was situated sought damages. In discussing the difference between a municipality's police power and its conferred power of eminent domain, this Court stated:

221 Ala. at 52, 127 So. at 833. This Court later recognized the same principle in Jefferson County v. Southern Natural Gas Co., 621 So.2d 1282, 1287-88 (Ala.1993):

Based on the above cases, a property owner may challenge a municipal corporation's actions that the owner alleges are an abuse of its police power. Such a challenge would not be an inverse-condemnation action unless the municipal corporation has taken property, under its conferred power of eminent domain, "by the construction or enlargement of its works, highways, or improvements." However, in the present case, the Town did not exercise its conferred power of eminent domain by the construction or enlargement of its works, highways, or improvements; instead, the Town exercised its police power in enacting the at-issue zoning ordinance. See Corn v. City of Lauderdale Lakes, 816 F.2d 1514, 1517-19 (11th Cir.1987) (recognizing a distinction in Florida law between a municipal corporation's police power and its conferred power of eminent domain).

It is well established under Alabama law that a property owner may challenge the constitutionality of a zoning ordinance passed pursuant to a municipal corporation's police power. See Budget Inn of Daphne, Inc. v. City of Daphne, 789 So.2d 154, 159 (Ala.2000) (determining that certain provisions of a zoning ordinance passed by a municipality were arbitrary and capricious and striking down those provisions). In fact, M & N indicated in its brief filed on original submission that its constitutional challenge of the at-issue zoning ordinance was an alternative claim to its inverse-condemnation claim and that its constitutional challenge could be reinstated if the trial court's judgment in favor of M & N on M & N's inverse-condemnation claim was reversed. The trial court's judgment in favor of M & N on M & N's inverse-condemnation claim has been reversed; thus, M & N is free to refile its constitutional challenge to the at-issue zoning ordinance. M & N would be afforded the relief it seeks if it were to prevail on its constitutional challenge of the at-issue zoning ordinance.

Lastly, I write to respond to Justice Murdock's substituted dissent. Initially, I note that Justice Murdock's dissent is entirely dependant upon distinguishing Willis v. University of North Alabama, 826 So.2d 118 (Ala.2002), in which this Court held that "§ 23 applies when a physical taking of the property in question has occurred." 143 So.3d at 15 (interpreting Willis).4 Ignoring Willis, Justice Murdock concludes that the plain language of § 23 makes compensable a regulatory "taking." Justice Murdock's erroneous conclusion that § 23 makes compensable regulatory takings leads him to the misguided conclusion that § 23 applies to municipal corporations.

First, I will address Justice Murdock's position that Willis does not apply in this case because it is factually distinguishable. On original submission in Town of Gurley, a majority of this Court affirmed this Court's interpretation of § 23 in Willis that § 23 does not make compensable regulatory "takings." In Town of Gurley, a majority of this Court rejected Justice Murdock's attempt to distinguish Willis from the present case and held as follows:

143 So.3d at 15 (footnote omitted). Justice Murdock's dissent does not address the significant holding in Willis overruling in part Foreman v. State, 676 So.2d 303 (Ala. 1995). We held in Willis, by overruling Foreman in part, that under § 23 a state governmental authority must occupy property in order to constitute a taking; injury to the property caused by anything other than physical invasion is not compensable under the language of § 23. Whether the facts of Willis are distinguishable from the present case is inconsequential; the holdings of Willis apply, and no effort to address the significance of those holdings in that case has been made.

Justice Murdock's reliance upon the unestablished proposition that Willis does not apply to the present case and, thus, that § 23 makes compensable regulatory "takings" appears to lead him to struggle with the unfounded notion that § 235 provides less of a limitation upon the power of eminent domain than does § 23. This unfounded notion is a consequence of the refusal to apply the interpretation of § 23 set forth in Willis. In other words, if Justice Murdock's view that Willis does not apply is accepted and regulatory "takings" are compensable under § 23 (a position that was rejected on original submission by this Court), then § 23 would make compensable regulatory "takings," whereas § 235 does not make compensable regulatory "takings." Based on that unestablished legal position, the argument then follows that the legislature could not have intended to put less of a limitation upon the power of eminent domain when wielded by a municipal corporation than when wielded by the State. However, as stated above, this argument is premised upon refusing to accept the clear ruling in Willis, which a majority of this Court recognized in Town of Gurley. Therefore, giving Willis its proper weight as binding precedent, the foundation of Justice Murdock's dissent crumbles.

Moreover, Justice Murdock's dissent would render meaningless § 235; such an interpretation of our Constitution is prohibited by our rules of constitutional interpretation. As this Court noted in Town of Gurley:

143 So.3d at 14-15 (emphasis added). As set forth in Town of Gurley, quoting Gober v. Stubbs, 682 So.2d 430, 433-34 (Ala.1996), the power of eminent domain is an inherent power of the State, and the Constitution limits the State's exercise of that power.

The State may confer its inherent power of eminent domain upon a municipal corporation. In fact, in City of Birmingham v. Brown, 241 Ala. 203, 207, 2 So.2d 305, 308 (1941), this Court held:

Therefore, the only manner in which a municipal corporation may exercise the power of eminent domain is if the State has conferred upon it the power to do so. The State has, under numerous statutes, invested municipal corporations with the privilege of taking property for public works; that privilege is limited by § 235.

Justice Murdock's dissent concludes that because the State conferred the power to zone upon the Town, M & N's inverse-condemnation action for the alleged regulatory "taking" may be brought under § 23. Justice Murdock does not explain how granting a municipal corporation the power to zone is the equivalent of conferring upon a municipal corporation the power of eminent domain. A taking by the power of eminent domain involves a change in ownership of the property taken, whereas there is no change in ownership when a property is subject to a zoning ordinance. Regardless, Justice Murdock's dissent ignores the structure of the Alabama Constitution and would render useless § 235.

In Hornsby v. Sessions, 703 So.2d 932, 939 (Ala.1997), this Court held:

Further, this Court has also held that "[e]ach section of the Constitution must necessarily be considered in pari materia with all other sections. Opinion of the Justices, 333 So.2d 125 (Ala.1976)." Jefferson Cnty. v. Braswell, 407 So.2d 115, 119 (Ala.1981); see also House v. Cullman Cnty., 593 So.2d 69, 72 (Ala.1992) ("This rule applies with particular force in the construction of provisions of the Constitution....").

In order to ensure that we do not violate the above principles, we must consider the structure of the Constitution. Section 23 falls under Article I of the Constitution, which is entitled "Declaration of Rights"; § 23 states:

(Emphasis added.) Section 36, Ala. Const. 1901, the last section in Article I, states:

(Emphasis added.) As made plain in the language of § 36, the Declaration of Rights set forth in Article I, including the limitations on the power of eminent domain in § 23, applies to the State generally, not only to the legislature. Section 235 falls under Article XII, which is entitled "Corporations"; § 235 states:

Section 235 is a further limitation upon the eminent-domain power specifically applicable to corporations, including municipal corporations.

When the structure of the Constitution is considered and all parts are read in harmony, § 235 clearly provides the avenue by which to bring an inverse-condemnation action against a municipal corporation "invested with the privilege of taking property for public use," such as the Town. The position that § 23 applies to the State and § 235 applies to municipal corporations was stated in Duy v. Alabama Western R.R., 175 Ala. 162, 57 So. 724 (1911), in which this Court held:

175 Ala. at 173-75, 57 So. at 727-28. See also Markstein v. City of Birmingham, 286 Ala. 551, 554, 243 So.2d 661, 662 (1971) ("We note that section 235, which begins `Municipal and other corporations and individuals invested with the privilege of taking property for public use, ...' does not apply to eminent domain proceedings initiated by the State. State v. Barnhill, 280 Ala. 574, 196 So.2d 691 [ (1967) ]; Finnell v. Pitts, 222 Ala. 290, 132 So. 2 [ (1930) ].").

Justice Murdock's dissent violates the above principles by rendering meaningless § 235. Parties bringing an inverse-condemnation action against a municipal corporation would be free to disregard § 235 entirely in favor of § 23. Sections 23 and 235 are not alternate avenues by which to receive just compensation but must be read in harmony, and each must be given effect. Reading §§ 23 and 235 in pari materia, one must conclude that any inverse-condemnation action against the municipal corporation using its conferred power of eminent domain must be brought pursuant to § 235, which does not make compensable regulatory "takings."

I sympathize with the notion that our principles of judicial restraint and strict constructionism have produced an undesirable result in this case. However, we must not abandon our principles to obtain a desired result in this one instant. Let us heed the following warning set forth in George Washington's Farewell Address of 1796:

SHAW, Justice (concurring specially).

It is incorrect to say that M & N Materials, Inc. ("M & N"), cannot receive compensation for any taking of its property in this case: according to M & N, it can seek compensation for a violation of its 5th and 14th Amendment rights, and it could have sought to challenge the zoning regulations in this case as arbitrary and capricious. See 143 So.3d at 41 (Moore, C.J., concurring specially). Notwithstanding my personal opposition to the notion of an uncompensated regulatory taking, I cannot change the Alabama Constitution to provide a remedy that has not existed in 138 years. Thus, I concur to overrule the applications for rehearing, as they do not convince me that our original opinion in this case "overlooked or misapprehended" the facts or law. Rule 40(b), Ala. R.App. P.

As framed by the arguments on appeal, this case purportedly involves, among other things, the proper interpretation of two "eminent-domain" provisions of our Constitution of 1901: art. I, § 23, and art. XII, § 235. These constitutional provisions require that governmental entities acting to "take" private property for public use provide "just compensation" to the private-property owner.6

Section 235 governs the "taking" of property by municipalities and corporations that have been "invested with th[is] privilege." As the numerous authorities in our opinion on original submission note, § 235 does not make compensable "regulatory takings"; instead, "the taking, injury, or destruction of property must be through a physical invasion or disturbance of the property ... not merely through administrative or regulatory acts." Town of Gurley v. M & N Materials, Inc., [Ms. 1110439, Dec. 21, 2012] 143 So.3d 1, 13 (Ala.2012).

Section 23 broadly references the exercise of the power of eminent domain. As noted in our opinion on original submission in the instant case, Willis v. University of North Alabama, 826 So.2d 118 (Ala.2002), indicates that § 23 also applies to the "physical" taking of property and not a "regulatory" taking.7 Thus, § 23 and § 235 are in harmony: they both require just compensation for a "physical" taking of property.

The 5th and 14th Amendments to the Constitution of the United States also address the exercise of eminent-domain powers but have been interpreted differently than § 23 and § 235. Specifically, the Supreme Court has held that the 5th and 14th Amendments can require (in some cases) that just compensation be paid for a "regulatory" taking of property. See, e.g., Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992). M & N acknowledges in its brief on rehearing that a claim under federal law for a purported regulatory taking by the Town of Gurley is available to it; however, M & N has instead, among other things, elected to pursue an inverse-condemnation action alleging that the Town of Gurley's zoning ordinances amounted to a regulatory taking under § 23. Specifically, M & N asks this Court to, for the first time in nearly 138 years,8 interpret § 23 as embracing the federal regulatory-taking principles, the very principles M & N has not pursued.

To accomplish such an interpretation and apply it in this case, this Court must distinguish Willis or overrule it (which we have not been asked to do). Then, the definition of a "taking" in § 23 must be expanded to something less than an actual physical taking. This would create disharmony with § 235: both regulatory and physical takings would be covered by § 23, but § 235, which explicitly covers takings by municipalities, would, as our caselaw states, require compensation for only physical takings. Section 23 would provide a greater restriction on eminent domain, while municipalities have a freer hand under the more limited definition of a taking under § 235.

Recognizing the inequity this new definition would create between § 23 and § 235, it is suggested that § 23 should be interpreted as essentially trumping § 235 and also regulating all municipal takings. Such an interpretation essentially renders § 235 meaningless: applying an expanded definition of "taking" under § 23 to municipalities would mean that the narrower definition under § 235 would no longer have any practical field of application. In other words, the more expanded definition of a "taking" under § 23 would swallow the limited definition of "taking" under § 235. Again, notwithstanding my opposition to the notion of an uncompensated regulatory taking, to change the interpretation of one section of the Alabama Constitution (§ 23) at the cost of rendering another section (§ 235) irrelevant (all for the purpose of extending a remedy that already exists under federal law) seems to me unnecessary and contrary to my understanding of the concept of judicial restraint.

STUART, J., concurs.

BOLIN, Justice (concurring in the result in case no. 1110439 and dissenting in case no. 1110507).

As a former probate judge, I presided over numerous condemnation cases, both direct and inverse. I readily admit that I misapprehended the law with regard to Alabama's general eminent-domain provision, § 23, Ala. Const.1901, and the state-law claim of M & N Materials, Inc., that the Town of Gurley's actions amounted to a regulatory taking.9 I must respectfully dissent from the denial of rehearing in case no. 1110507, because I would grant rehearing; I also join Justice Bryan's special writing.

The factual scenario that led to the instant proceeding has been well laid out in this Court's opinion on original submission. It begins with and could be captioned by the colloquial acronym "NIMBY," an abbreviation for "Not In My Backyard," which is often the reaction when there is a conflict between private-property rights and needs for public use, as those needs are determined by governmental entities. Here, the needs of the public were set and obtained by what can only be explained as governmental arrogance, exhibited in raw fashion by the municipality when it decided it did not want a property owner outside its municipal boundaries to operate a quarry. This governmental entity embarked on a road to "lasso" the property in question into its corporate limits through a legislative annexation, issued a moratorium on a business license for the property owner, and finally enacted a zoning ordinance to prohibit the operation of the proposed quarry business — without paying any compensation whatsoever for so doing, much less just compensation.

Rare would be the person who would want a quarry built and operated near his or her property — equally rare, however, would be a person who would not want roads and highways constructed from minerals and rocks extracted from the earth for the very construction of such roads and highways. I am now convinced that the Town had a lawful means to "take" the subsurface rights from the municipally conscripted property owner through eminent domain, but chose instead a course that allowed it to bypass paying just compensation therefor. Put another way, it chose to unlawfully take for free by regulation what it chose not to take by paying proper compensation through its conferred power of condemnation.

The State of Alabama is imbued as a sovereign with the right of eminent domain.

Town of Gurley v. M & N Materials, Inc., [Ms. 1110439, December 21, 2012] 143 So.3d 1, 14-15 (Ala.2012).

Article I of the Constitution of Alabama, the article that defines and sets out our Declaration of Rights, provides in § 23 that private property shall not be taken without just compensation to the property owner first being provided. Therefore, the State may condemn property for lawful purposes, but must, as a limitation upon its inherent power, pay just compensation to the property owner for doing so. The State is further empowered to "confer" this right of a sovereign regarding eminent domain upon a municipal corporation. In Sloss-Sheffield Steel & Iron Co. v. O'Rear, 200 Ala. 291, 292, 76 So. 57, 58 (1917), this Court, quoting Lewis on Em. Dom., at § 374, stated:

(Emphasis added.)

The State therefore has the power to lawfully "confer" the power of eminent domain upon municipalities, which it has done in statutes such as § 11-47-170, Ala. Code 1975, applicable to municipal corporations only, and § 11-80-1(a), Ala.Code 1975, applicable to both counties and municipal corporations. Section 11-47-170 reads, in pertinent part:

(Emphasis added.)

Further, § 11-80-1 states, in pertinent part:

Therein lies the irony of not declaring this case to be what it really is — a hardball regulatory "taking" (by annexation and zoning ordinance) by government of a private-property interest. This allows what has been determined to be for the "public use" and public good to be accomplished by a municipality upon the unrecompensed shoulders of the property owner. The ultimate irony of it all is this: the State has given to or "conferred" on the Town of Gurley the lawful right to have condemned this property, if it had so needed, "for material for the construction of public roads or streets or for any other public use," including "the necessary lands or rights, easements or interests ... thereunder," and the Town can still do so in the future. However, the property owner is now prevented and precluded, without any state-law remedy, from ever extracting the same material from its own property to mine and sell for use in the construction of public roads or streets by the heavy-handed power of government.

Inverse condemnation is the taking of private property for public use without formal condemnation proceedings and without just compensation being paid by the governmental agency or entity that has the power of condemnation. Foreman v. State, 676 So.2d 303, 305 (Ala.1995), overruled on the ground that § 23 requires a physical taking of property, Willis v. University of North Alabama, 826 So.2d 118 (Ala.2002); for the reasons set out in Justice Bryan's special writing, I agree that Willis was wrongly decided and should be overruled. As such, it is in the nature of a derivative action available to a property owner when a condemnor defaults on its obligation to commence a condemnation proceeding. Section 18-1A-32, Ala.Code 1975, wisely provides a property owner with a remedy when such abuses occur:

(Emphasis added.)

The property owner, M & N Materials, had its property involuntarily annexed into the Town of Gurley, was delayed and its property subsequently rezoned into a classification that did not allow for the mining of its subsurface mineral rights, and hence was a classic victim of a regulatory "taking" or "damaging." From the beginning it would have been difficult to argue that the opinion on original submission was an unjust result based on the facts. The office of a rehearing application is to allow for a review and recalculation of the law involved. Now, based upon a review of, and a second look at, the law involved, it is my judgment that M & N properly availed itself of the state-law remedy provided by § 18-1A-32 in its complaint, and it is my considered opinion that the application for rehearing should have been granted in case no. 1110507.

One of the premier Alabama lawyers who ever practiced eminent-domain law was Maurice F. Bishop. He was well over 50 years ahead of his time when wrote the following:

The Alabama Lawyer, Vol. 22, No. 4 (October 1961).

Little did Bishop realize how prescient he was, especially given the present-day and future litigation that will inevitably develop from the battle between the rights of private-property owners against public takings by governmental regulatory action.

WISE, J., concurs.

BRYAN, Justice (concurring in the result in case no. 1110439 and dissenting in case no. 1110507).

The Takings Clause of the Fifth Amendment to the United States Constitution, which applies to both the federal government and the states, see Chicago, B. & Q. R.R. v. City of Chicago, 166 U.S. 226, 17 S.Ct. 581, 41 L.Ed. 979 (1897), provides that private property shall not "be taken for public use, without just compensation." Alabama's general eminent-domain provision, § 23, Ala. Const.1901, mirrors the Takings Clause. Section 23 provides, in part: "[P]rivate property shall not be taken for, or applied to public use, unless just compensation be first made therefor...." The Takings Clause, as well as our § 23, "does not prohibit the taking of private property, but instead places a condition on the exercise of that power." First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 314, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987). That is, it "is designed not to limit the governmental interference with property rights per se, but rather to secure compensation in the event of otherwise proper interference amounting to a taking." First English, 482 U.S. at 315, 107 S.Ct. 2378 (emphasis omitted). "One of the principal purposes of the Takings Clause is `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.'" Dolan v. City of Tigard, 512 U.S. 374, 384, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994) (quoting Armstrong v. United States, 364 U.S. 40, 49, 80 S.Ct. 1563, 4 L.Ed.2d 1554 (1960)).

The classic example of a taking involves a direct appropriation of property or physical intrusion onto property. Before 1922, "it was generally thought that the Takings Clause reached only a `direct appropriation' of property, or the functional equivalent of a `practical ouster of [the owner's] possession.'" Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1014, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992) (citations omitted). However, in that year the United States Supreme Court stated that "if regulation goes too far it will be recognized as a taking" under the Takings Clause. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S.Ct. 158, 67 L.Ed. 322 (1922). "Beginning with Mahon, ... the [Supreme] Court recognized that government regulation of private property may, in some instances, be so onerous that its effect is tantamount to a direct appropriation or ouster — and that such `regulatory takings' may be compensable under the Fifth Amendment." Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 537, 125 S.Ct. 2074, 161 L.Ed.2d 876 (2005).

The main opinion on original submission concludes that a government's regulatory conduct cannot effect a taking under § 23, which is our State's parallel provision to the Takings Clause. That view places Alabama landowners, like M & N Materials, Inc., the plaintiff in this case, in the position of potentially having to "`bear public burdens which, in all fairness and justice, should be borne by the public as a whole.'" Dolan, 512 U.S. at 384, 114 S.Ct. 2309 (quoting Armstrong, 364 U.S. at 49, 80 S.Ct. 1563). Thus, I must respectfully dissent in case no. 1110507.

First, I note that I agree with much of Justice Murdock's substituted special writing. Justice Murdock aptly explains why § 23 applies to the Town of Gurley's regulatory conduct in this case. However, whereas Justice Murdock distinguishes this case from Willis v. University of North Alabama, 826 So.2d 118 (Ala.2002), a case relied on by the main opinion, I would simply overrule Willis.

In my opinion, Willis requires that there be a physical intrusion onto property for there to be taking of that property under § 23. In Willis, this Court stated, in a straightforward manner:

826 So.2d at 121 (emphasis added). Thus, Willis precludes a "regulatory taking" — the type of taking allowed under the Takings Clause after Mahon — under § 23. Although the term "regulatory taking" may be given different meanings, see, e.g., John Martinez, Government Takings §§ 2:9-20 (2007), in the context of the present case the term describes a taking in which the government does not physically invade or disturb the property. For the following reasons, I believe we should overrule Willis.

Initially, I recognize that we have not been asked to overrule Willis and that "[s]tare decisis commands, at a minimum, a degree of respect from this Court that makes it disinclined to overrule controlling precedent when it is not invited to do so." Moore v. Prudential Residential Servs. Ltd. P'ship, 849 So.2d 914, 926 (Ala.2002). However, this is that rare case in which we should overrule precedent on our motion.

As noted, more than 90 years ago, in 1922, the United States Supreme Court stated that "if regulation goes too far it will be recognized as a taking" under the Takings Clause of the Fifth Amendment. Mahon, 260 U.S. at 415, 43 S.Ct. 158. Since Mahon, the Supreme Court has developed extensive caselaw regarding regulatory takings under the Takings Clause; the concept of a regulatory taking under that provision is well established. See Martinez, supra, §§ 2:9-20. As noted, the applicable part of Alabama's general eminent-domain provision, § 23, mirrors the Takings Clause. The United States Supreme Court's construction of federal constitutional provisions is persuasive when we construe similar provisions of the Alabama Constitution. Pickett v. Matthews, 238 Ala. 542, 547, 192 So. 261, 265-66 (1939). To conclude otherwise would "produce much confusion and instability in legislative effectiveness." Id. By interpreting § 23 to preclude a regulatory taking, Willis is out of line with well established Supreme Court precedent construing a provision materially the same as our provision in § 23.

Moreover, Willis is out of line with the vast majority of states, which recognize the concept of a regulatory taking under state constitutions and often borrow heavily from federal law on that subject. See Cannone v. Noey, 867 P.2d 797 (Alaska 1994); Mutschler v. City of Phoenix, 212 Ariz. 160, 129 P.3d 71 (Ariz.Ct.App.2006); Forest Glade Mgmt., LLC v. City of Hot Springs, (No. CA 08-200, November 12, 2008) (Ark.Ct.App.2008) (not reported in S.W.3d); Twain Harte Assocs., Ltd. v. County of Tuolumne, 217 Cal.App.3d 71, 265 Cal.Rptr. 737 (1990); G & A Land, LLC v. City of Brighton, 233 P.3d 701 (Colo.Ct.App.2010); Cumberland Farms, Inc. v. Town of Groton, 262 Conn. 45, 808 A.2d 1107 (2002); Gradous v. Board of Comm'rs of Richmond Cnty., 256 Ga. 469, 349 S.E.2d 707 (1986); Covington v. Jefferson Cnty., 137 Idaho 777, 53 P.3d 828 (2002); State v. Kimco of Evansville, Inc., 902 N.E.2d 206 (Ind.2009); Molo Oil Co. v. City of Dubuque, 692 N.W.2d 686 (Iowa 2005); Lone Star Indus., Inc. v. Secretary of Kansas Dep't of Transp., 234 Kan. 121, 671 P.2d 511 (1983), superseded by statute as recognized in Estate of Kirkpatrick v. City of Olathe, 289 Kan. 554, 215 P.3d 561 (2009); Annison v. Hoover, 517 So.2d 420 (La.Ct.App.1987); Seven Islands Land Co. v. Maine Land Use Regulation Comm'n, 450 A.2d 475 (Me.1982); Maryland-National Capital Park & Planning Comm'n v. Chadwick, 286 Md. 1, 405 A.2d 241 (1979); Blair v. Department of Conservation & Recreation, 457 Mass. 634, 932 N.E.2d 267 (2010); Poirier v. Grand Blanc Twp., 167 Mich.App. 770, 423 N.W.2d 351 (1988); DeCook v. Rochester Int'l Airport Joint Zoning Bd., 796 N.W.2d 299 (Minn. 2011); Jackson Mun. Airport Auth. v. Evans, 191 So.2d 126 (Miss.1966); Clay Cnty. ex rel. Cnty. Comm'n of Clay Cnty. v. Harley and Susie Bogue, Inc., 988 S.W.2d 102 (Mo.Ct.App.1999); Buhmann v. State, 348 Mont. 205, 201 P.3d 70 (2008); Scofield v. Nebraska Dep't of Natural Res., 276 Neb. 215, 753 N.W.2d 345 (2008); McCarran Int'l Airport v. Sisolak, 122 Nev. 645, 137 P.3d 1110 (2006); Burrows v. City of Keene, 121 N.H. 590, 432 A.2d 15 (1981); Mansoldo v. State of New Jersey, 187 N.J. 50, 898 A.2d 1018 (2006); Estate & Heirs of Sanchez v. County of Bernalillo, 120 N.M. 395, 902 P.2d 550 (1995); Fred F. French Inv. Co. v. City of New York, 39 N.Y.2d 587, 385 N.Y.S.2d 5, 350 N.E.2d 381 (1976); Beroth Oil Co. v. North Carolina Dep't of Transp., 725 S.E.2d 651 (N.C.Ct.App.2012); Rippley v. City of Lincoln, 330 N.W.2d 505 (N.D.1983); State ex rel. Shemo v. City of Mayfield Heights, 95 Ohio St.3d 59, 765 N.E.2d 345 (2002); Calhoun v. City of Durant, 970 P.2d 608 (Okla.Civ.App.1997); Hall v. State ex rel. Oregon Dep't of Transp., 252 Or.App. 649, 288 P.3d 574 (2012); Cleaver v. Board of Adjustment, 414 Pa. 367, 200 A.2d 408 (1964); Annicelli v. Town of S. Kingstown, 463 A.2d 133 (R.I.1983); Byrd v. City of Hartsville, 365 S.C. 650, 620 S.E.2d 76 (2005); US West Commc'ns, Inc. v. Public Util. Comm'n of South Dakota, 505 N.W.2d 115 (S.D.1993); Mayhew v. Town of Sunnyvale, 964 S.W.2d 922 (Tex.1998); Diamond B-Y Ranches v. Tooele Cnty., 91 P.3d 841 (2004); Killington, Ltd. v. State, 164 Vt. 253, 668 A.2d 1278 (1995); City of Virginia Beach v. Bell, 255 Va. 395, 498 S.E.2d 414 (1998); Presbytery of Seattle v. King Cnty., 114 Wn.2d 320, 787 P.2d 907 (1990); McFillan v. Berkeley Cnty. Planning Comm'n, 190 W.Va. 458, 438 S.E.2d 801 (1993); Eberle v. Dane Cnty. Bd. of Adjustment, 227 Wis.2d 609, 595 N.W.2d 730 (1999); and Cheyenne Airport Bd. v. Rogers, 707 P.2d 717 (Wyo.1985).

"[T]he right of acquiring and possessing property, and having it protected, is one of the natural, inherent, and unalienable rights of man." Vanhorne's Lessee v. Dorrance, 2 U.S. (2 Dall.) 304, 310,1 L.Ed. 391 (Cir.Ct.Pa.1795). Our nation's founders sought to protect the fundamental right of private property; unfortunately, Willis erodes that right. James Madison stated: "`Government is instituted to protect property of every sort; as well as that which lies in the various rights of individuals, as that which the term particularly expresses. This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own.'" In re Certified Question from U.S. Bankruptcy Court for the E. Dist. of Mich., 477 Mich. 1210, 1212-13, 722 N.W.2d 423, 425 (2006) (Young, J., concurring) (emphasis omitted) (quoting "Property," National Gazette, March 29, 1792, Writings of James Madison (New York, Putnam, Hunt ed. 1906), vol. VI, p. 102). Madison also stated that "`[i]f the United States mean to obtain or deserve the full praise due to wise and just governments, they will equally respect the rights of property, and the property in rights....'" Taylor v. Armco Steel Corp., 373 F.Supp. 885, 887 (S.D.Tex.1973) (quoting National Gazette, March 29, 1792). Alexander Hamilton wrote that one of the benefits of the proposed Constitution was "[t]he additional security which its adoption will afford to the preservation of [republican] government, to liberty, and to property." Federalist No. 1 (Alexander Hamilton) (George W. Carey & James McLellan eds. 2001). Hamilton also wrote that state government, "in the administration of criminal and civil justice," is "the immediate and visible guardian of life and property." Federalist No. 17 (Alexander Hamilton) (George W. Carey & James McLellan eds. 2001). Arthur Lee, a delegate to the Continental Congress, opined that "`the right of property is the guardian of every other right, and to deprive a people of this, is in fact to deprive them of their liberty.'" Resource Inv., Inc. v. United States, 85 Fed.Cl. 447, 470 n. 31 (2009) (quoting James W. Ely, Jr., The Guardian of Every Other Right: A Constitutional History of Property Rights 26 (2d ed. 1998)). William Blackstone, who held great influence among the Founders, wrote: "`So great moreover is the regard of the law for private property, that it will not authorize the least violation of it; no, not even for the general good of the whole community.'" Kelo v. City of New London, 545 U.S. 469, 510, 125 S.Ct. 2655, 162 L.Ed.2d 439 (2005) (Thomas, J., dissenting) (quoting 1 William Blackstone, Commentaries on the Laws of England *135). By failing to recognize the concept of a regulatory taking under § 23, Willis falls short of national precedent and, in my opinion, undermines our fundamental right to private property.

Furthermore, I note that Willis itself overruled Foreman v. State, 676 So.2d 303 (Ala.1995), and Barber v. State, 703 So.2d 314 (Ala.1997), which relied on Foreman. A review of the briefs submitted in Willis indicates that no party or amicus curiae in that case asked this Court to overrule those cases.10 In that case, the University of North Alabama and amici curiae did argue, on application for rehearing only, and in the alternative, that Foreman and Barber were "flawed" and that they "misapplied" the law, but they did not ask this Court to overrule those cases. On original submission in Willis, no party or amici argued that those cases were wrongly decided.

In short, Foreman and Barber, the cases Willis overruled, allowed for the possibility of compensation under § 23 for injuries to property that were not physical injuries, but Willis precluded that possibility. In my view, by overruling Willis, we would simply be returning the law to a position similar to the position in which it was before this Court changed the law on its own motion. In doing so, we would align our State with the overwhelming majority of jurisdictions. The landowners of this State deserve the same basic protections under well settled eminent-domain law afforded by other jurisdictions. For us to accomplish this, we must overrule Willis's physical-intrusion rule and thereby allow for regulatory takings under § 23.

Having overruled Willis, I would then remand this case for the trial court to consider whether a regulatory taking under § 23 actually occurred, given the facts here. This raises the question of which standard or standards would be applied to determine whether a regulatory taking occurred. Considering the plethora of cases that have applied the well established regulatory-taking standards adopted by the Supreme Court, I would apply those standards to cases involving alleged regulatory takings under § 23.

As noted, although the term "regulatory taking" may be given different meanings, see, e.g., Martinez, supra, §§ 2:9-20, in the present case the term merely describes a taking in which the government does not physically invade or disturb the property. Therefore, it would appear that one of two standards could be used to determine whether there was in fact a regulatory taking in this case. Id. Applying the standard established in Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1015, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992), a government regulation goes "too far" if it "denies all economically beneficial or productive use of [the] land." In that situation, a compensable taking occurs unless "background principles of the State's law of property and nuisance" would restrict the owner's intended use of the property. 505 U.S. at 1029, 112 S.Ct. 2886. A Lucas taking is sometimes referred to as a "total regulatory taking," 505 U.S. at 1026, 112 S.Ct. 2886, or a "categorical regulatory taking," Bair v. United States, 515 F.3d 1323, 1326 (Fed.Cir.2008).

Any regulatory action causing less than the denial of all economically beneficial or productive use of the property would require an analysis under Penn Central Transportation Co. v. New York City, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978). Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency, 535 U.S. 302, 122 S.Ct. 1465, 152 L.Ed.2d 517 (2002). In Penn Central, the Supreme Court identified these factors for determining whether a regulatory taking has occurred: (1) "the character of the governmental action"; (2) "[t]he economic impact of the [action] on the claimant"; and (3) "the extent to which the [action] has interfered with distinct investment-backed expectations." Id. at 124, 98 S.Ct. 2646. The Penn Central standard involves "essentially ad hoc, factual inquiries." Id. A Penn Central taking is sometimes referred to as a "partial regulatory taking." See Palazzolo v. Rhode Island, 533 U.S. 606, 633, 121 S.Ct. 2448, 150 L.Ed.2d 592 (2001) (O'Connor, J., concurring); and Bair, 515 F.3d at 1326.

In conclusion, I concur in the result in case no. 1110439, but I must respectfully dissent in case no. 1110507. Regarding the latter case, I would grant rehearing, overrule Willis, look to federal caselaw regarding regulatory takings under § 23, and remand the case for the trial court to consider whether a regulatory taking occurred under either Lucas or Penn Central.

BOLIN and WISE, JJ., concur.