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i Services a'Y'Wead Data Cernrat; lnc. •U ( FAGS 16 19,71 U.S. APP. LEXIS 30231, *3 cantiquous navigable waters. An exclusive subdivision community was then built around the. marina. The lagaan had been private. propertY before the development, a»d the property owners continued to deny access to the public after thele` development:... .� Subsequently, the government ;claimed that the property Owners were required to Open the lagoon to members iof the public who might choose to visit try boat, i s;;nce it was now SutJ.jEct to the "navigational servitude.+' The >Court held ,;that if '• the Gove`rnmen;t wished to impose public use C*381 -- even ntermittent E,publiC u44 -- of the lagoon upon the :property owners., it was: required to pay just compensation.. The Court explained:. E: In this case,. ae hold that the Alright to exclude," ;so universally held fundamental element of the prOpertyr right, falls within this Gategor�r of 0 interests thatF, the Gavernmentgcannot tape without compensation. . the ilmpo5itian cif` the navigational servitude in this context Vresult in <arr actual physical invasidn Of the privately owned marina. And even if the government piysicaliy invades only an easement in property, it must nonefheiess P v Joust.: Compensa:tl.on tc tat:ion:s omitted) . e :. r at 179y40. The principle of Ka Ser Aetna; was reinforced in flall:an v. Cal.ifarnia Gr�asta . d`dlft'n, .483 U`.S, 825 (1:98.7.). Justice Scalia, writing for the hurt, raids.; F "Tfl say that the appro.priatiori of a public easement across a landowner Is, p�ren�ises does not constitute the taking of a property interest Gut rather . „ .► `a sere restriction on its use, • is to use words in a manner that deprives i them of all their ordinary meaninri. • We have repeatedly held that, ads to p ^operty€ reserved by its owner C*391 far private use, ' the right to exclude Pothers isl ' 'gine of the most essential sticks in the bundle of rights that are c6mmonly characterized as property. ' ` (citing Loretto and Kaiser Aetna] We think a 'permanent physical occupation' has occurred . . . where individuals are j given a permanent and continuous right to pass to andfro, so that the real property may continuously be traversed, even though no particular individual, is f permitted to station himself permanently upon the premises.” Nollan V. k I Chlifornia�Coastal Comm'n, 483 U.S. at 831-32. The evidence before the court in Hendler I reflected a situation in which the Government beha-'ved as if it had acquired an easement not unlike that claimed in Kaiser Aetna. Pursuant to the ;easement, the Government at its convenience[ drove equipment upon ,plaintiffs` land for the purpose of installing and periodi6ally servicing arid obtaininq information from the various wells it had locatedi there. Kaiser Aetna and Nonan would seem to leave little doubt that such activity, j eYen though temparally intermittent, is not ' temporary.. ' It is a taking of the plaintiffs ` ritbt to exclude, ;for the duration C*+CII of the period ire` whish tie. wells Are on the property and subject to the Government's need to 5er'Yice them. n 13 . `. -foatno:te5�- n13 Accord., United States v. CAusby,, 328 U.S'. 256 (1946) (the quise f to s gavernmen.t :planes pas5inq a mere 83 feet above the plaintiff's property ; const toted a taKinq, even thougtl such overFlights occurred far only 4% of the t keoffs and. f0. tif' the landings):.LEI,X- Is � Il � NEXIS EXIS it r !i