The character and manner of the governmental intrusion is just as important as the intrusion itself. Also, the principle of regulating private property for a public purpose is demonstrated in the Loretto case. An owner will not be required to use her property to host a project that is for a public purpose without requiring just compensation by the government.
In Loretto, a New York statute requires that a landlord permit cable companies to install cable television equipment on his property and cannot demand payment from the cable company in excess of the fees established fee of $1.00. The appellant owned a five story building and learned that the cable company had installed extensive wiring in the building. Included in this wiring were cables that served other property owner's buildings.
The statute represents a Taking entitling the landlord to just compensation under the Fifth Amendment. When the character of the government's intrusion is a permanent physical occupation on the owner's land, the action represents a Taking to the extent of the occupation, regardless of whether the occupation serves an important public benefit or only minimally intrudes on the owner's property.
This is especially true when the government occupies private property and it interferes with the owner's right to use, enjoy, and benefit from his property. The owner, in this case, may have no control over the timing, extent of, or nature of the invasion. To this end, the installation of the cable wires satisfied the minimal occupation test in that the presence of boxes, wires, plates, bolts, and screws to the appellant's building was sufficient permanent occupation warranting a Taking.
The Court with this ruling broadened the meaning of a Taking. A narrow reading of the law would lead one to conclude that a physical occupation of the property is necessary to constitute a taking, however, in the Loretto case, the Court ruled otherwise. The statute is interpreted broadly in not requiring a literal physical intrusion of the land, and only requiring that physical invasion of the property by the government with objects or items for a permanent period of time is sufficient to establish a Taking. The Court in its ruling, established the principle that the owner's ability to use and enjoy her land is what is at issue and compensable rather than the type of intrusion. Additionally, the Court did not permit the perceived benefit to the public that occurs from the installation of cable wiring to outweigh the owner's right to use and enjoy her property.
Also addressed was the issue of what type of governmental intrusion constitutes a Taking in the case of Hodel v. Irving, 481 U.S. 704 (1987). In Hodel, Congress enacted the Indian Land Consolidation Act of 1983, which provided that no undivided fractional interest in Indian lands held in trust by the United States shall pass by intestacy or devise, but shall escheat to the tribe provided that the land holds a certain monetary value. No provision was made to compensate owners who lost land pursuant to the Act. Appellees are members of the Oglala Souix Tribe are either heirs or devisees of individuals who died prior to the implementation of the Act and therefore owned a fractional interest in land that is now subject to the Act.
The Act effectuated a Taking of the Appellee's property without just compensation. It was found that the government's impact of the Act on the owner's property interests, the nature of the government's intrusion, and the impact of the Statute on the benefits of the heirs and devisees of the land could be substantial. Even though the heirs and the devisees of the land could enjoy a benefit during their lifetime, the right to devise the land to their heirs was infringed on by the regulation. Furthermore, the character of the Act is significantly intrusive as it represents a restraint on the alienation of property which has always been a tenet of the American system of property ownership.
The Hodel case presents another example as to when a Taking can occur without physical governmental occupation or intrusion on property. The Act of a lawmaking by the government is sufficient governmental intrusion to establish a Taking without just compensation. The Court, just as it did in the Loretto case, focused on the loss that the heirs or devisees of the land...
This case is significant in that the Court further broadens the owner's rights to be free from governmental intrusion. Whereas in previous cases addressed in this review, the Court held that a Taking occurred at least in part based on some type of physical invasion by the government. In Hodel the Court upheld a Taking without a finding of a literal physical intrusion. However, the argument to be made is that the Act in itself, while not a physical intrusion, is nonetheless an intrusion on the rights of the heirs and devisees of the land.
Yet another illustration where the Court has illustrated what governmental actions constitute a Taking without just compensation is the case of Kaiser Aetna v. United States, 444 U.S. 164 (1980). In this case, the petitioner was the owner of a piece of property that contained a pond. He developed the pond, private property, into a marina and connected it to an adjacent bay. The Army Corp of Engineers had previously advised the petitioners that they were not required to have permits for operations. Petitioners as a result made developments and improvements that allowed boats to have access to and from the bay which they had developed. The suit was filed pursuant to section 10 of the Rivers and Harbors Navigation Act
The government could not regulate the petitioner's private property by requiring in them to open their pond to the public. This would amount to effectuating its eminent domain powers without paying the owner just compensation for what would then be a Taking under the Fifth Amendment. The pond falls within the definition of "navigable waters" and is therefore subject to U.S. jurisdiction however, when juxtaposed with the Takings Clause of the Fifth Amendment, Congress does not have the jurisdiction to regulate what is private property to the level of what constitutes a Taking. Congress has the right to regulate the petitioner's marina, but that the level of regulation would need to be examined for whether it constitutes a Taking. The level of regulation that the government imposed here on the petitioner's property by requiring that the petitioners give the public a right to access goes beyond a general regulation and amounts to a Taking.
The Kaiser case presents another example of how the Court has defined a Taking in favor of the owner. The Court here could have decided in favor of the government under the line of reasoning that because the plaintiff had altered the initial state of his private property by making it navigable and flowing into waters that were open to the public, it should therefore be open to the public. This decision and reasoning would not have been surprising because the owner had altered the initial state of his property and gave it a characteristic that it did not exist before. Nonetheless, the Court gave the owner the benefit of the doubt, protecting his private interest from excessive governmental regulation.
As this line of cases illustrate, the Court has traditionally required actual appropriation or physical invasion by the government in order to find a Taking by the government without just compensation. Still, the Court has interpreted the property owner's rights very broadly in relation to governmental intrusion. The Court has been concerned with the interference on the property owner's ability to use and enjoy her property rather than measuring and requiring a specific degree of physical intrusion by the government. Just as the Court ruled in the Hodel, case, it limited how the government can enact a law or regulation regarding one's property, and did not require a permanent physical intrusion to rule that a Taking had occurred.
V. Exactions Not Arising to a Taking
An Exaction is a government regulation on property that does not amount to a Taking. The Court has held that the government can regulate property without compensating the owner if the regulation advances a legitimate state interest and does not deny the owner economically viable use of his land.
As we have seen in this review, the Supreme Court has been liberal towards the owner of property in determining whether the action of the government amount to a Taking without just compensation. However, in a number of circumstances, the Court has ruled that the regulations of the government did not amount to a Taking. One of these circumstances is when the Court reasons that the situation constitutes an emergency situation.
The emergency scenario is illustrated in the historical case of Miller v. Schoene, 276 U.S. 272 (1928). In this case, a Virginia law provides for the compulsory cutting…
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