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<br /> 1991 U.S. App, LEXIS 30233. *34
<br /> Agins, which was finally laid'. to rest in First Lutheran Church, was that
<br /> requlatory' taking, unlike a phiysical taking, is by its nature 'temporary' This
<br /> is betause the government, upon being told the regulation was overly
<br /> intrusive and therefore a taking
<br /> (by whatever test),, could rescind or amend the
<br /> A
<br /> reqUlation. A
<br /> ootnptes- - - - - - -
<br /> q n12 see'. e.g.., First Lutheran Church, 482 U.S,. 304, passim (1987) . See also
<br /> Note, Just Compensation or Juit Damages: The Measure of Damages for Temporary
<br /> kegulatory' Takings in Wheelerv!v. City- of Pleasant Grove, Rev. -
<br /> 1243 -
<br /> 74 Iowa L. Rev. �1243
<br /> -End Footnotes- - - - - - - - - - --
<br /> It is equally true,, however, that the qovernment when it has taken property
<br /> by physical oc6upation could subsequently decide to return the property to Its
<br /> owner, or otherwise release its interest in the property. Yet no one would argue
<br /> ,that that would somehow absolve the government of its liability for a taking
<br /> d.brinq the,; time the property was denied to the property owner. All taking's are
<br /> ' temporary, ' in the sense that. the government can always change its mind-'at a
<br /> later time; and this is true �hethtr the property interest taken is a possesso r
<br /> estate for years or a fee simple acquired 1*363 through condemnatich, pir an I
<br /> easement of use- by virtue of a regulation. The long drawn out battle of
<br /> Agins/San DiegoGas/First Lutheran Church was not I a fight over principle,ibut a
<br /> dispute over the lllo�
<br /> gical use of a word.
<br /> 4
<br /> A If the term..', temporary has any real world reference In takings
<br /> PMSOrudence, it logically rifers to those governmental, activities which
<br /> involve: an occupancy that is transient and relatively inconsequential, an6 thus
<br /> properly can be. viewed, as no, more than a common law, trespass, quare clausui
<br /> re'i t. 0
<br /> 9 truckdriver park4n`
<br /> A g an someone's vacant .!,and to eat lunch is an
<br /> I we d, o not, by that example dean to suggest that that definzs the, boundaries of
<br /> the C,asei. We need not decide here what physical occupancy,, of what kind., for.
<br /> what duration, 'constitutes a Loretto taking. It is enough to say that, ani the
<br /> facts before the ClaimS, .Cour t 'on :the motion for summary judgment, we conclude
<br /> 0
<br /> that the occupancy by Ue Government was comfortably within the degree necessary
<br /> to make out a, taking. When the: governmental intrusion is as substantial al
<br /> hYS11ca �. .occupancy 1 of priva te property: as this is, Loretto establishes that
<br /> :there is a taking.
<br /> g
<br /> By like: t0kghl C. 3.73 the concept of permanent physical occupation Les
<br /> nbt require, that: JJT event instance the occupation be exclusive, continuous
<br /> ..- or
<br /> arty uninterrupted.. The. evidence before the Court was. that Governmentvehikgs:
<br /> and equipment entered Upon plaintiffs , land from time to time, w.j.:thout
<br /> pe!rm i ss ion , f or purposes of installing and servicing the various wells. They
<br /> remained oft, the land fat :whatever duration was necessary to conduct theirg
<br /> activities andlIhen left, only to return again, when, the Government desired
<br /> in: Kaiser Aetna v A. ited t Uh t
<br /> e. States.,, .444 U.S. 1164 097119) the property y. owners
<br /> 144 farmed a Mahna by dredgin' 4: shallow lagoon and A connectin outlet in to�
<br /> :
<br /> ArM .
<br /> LE NEXISOLEXIS
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