In the case of The City of Seattle v. Kelleher, 1904, the U.S Supreme Court ruled in favor of the city. The dispute arose when Kelleher sued Seattle for damages after a sewer line was constructed near his property causing it to flood during heavy rains. He claimed that this constituted an unlawful taking under the Fifth Amendment's Takings Clause which states that private property cannot be taken for public use without just compensation. However, the court rejected this argument stating that while there may have been consequential damage due to construction and operation of sewers by cities or towns as part of their governmental functions, it did not constitute a 'taking' within constitutional limitations unless there is direct invasion or appropriation and not merely consequential injury resulting from lawful government action.

In the dissenting opinion for The City of Seattle v. Kelleher, it was argued that the city's actions were unconstitutional and violated Mr. Kelleher's rights to due process under law. The justice believed that the city had no right to take away a citizen’s property without just compensation or proper legal proceedings, which they felt was not done in this case when Seattle took over part of Mr. Kelleher's land for public use as a street without his consent or fair payment. They also disagreed with majority’s interpretation of “public use”, stating that it should be strictly construed and not extended beyond necessity; otherwise, it would give municipalities unlimited power over private properties at their discretion – an outcome contrary to constitutional principles protecting individual rights against arbitrary government action.