|
Ser0ces,of Mead Data Central, Inc.
<br /> � a
<br /> PAGE 8 ;
<br /> 1.991 tl;S. App. LEXIS 35233, *15
<br /> Much: of the law of eminent domain - Moth statutory and,case - developed for tate
<br /> purpose of providing the progedural 1*163 structure for government takings,
<br /> the main issue in the cases was what compensation was just. See J. Sackmap',
<br /> Nflchpls' 'the Law of Eminent Domain 8 8 (1991 ) ; see generally L. flrge1, �+aluat on
<br /> under` the. Law of W. 1953) .re
<br /> i S a
<br /> a
<br /> As government activities expanded, situations arose in which government
<br /> action resulted tri an in vasipn'aof ;an owner's privata property, out the '
<br /> government had not undertaken the procedural steps called for by statute to
<br /> acquire tine affected property ifterests. For exanlnple, the governments
<br /> roadbuildinA activity ori A's land, the taking of which was: authorized and paid
<br /> far by tine goverhmnent, tnnigtnt cause permanent flooding on the nearby laud of B.
<br /> `i`he suit by B, to require the gov rnment to pay dust cdmpensation for the tal<inq
<br /> Of 841 property as `Well. acquired the name of inverse Condemnat113K.
<br /> > Sinpd the suit *Ws :.based upni the constitutional provision protecting
<br /> propert}� rtights, And the prdvision was considered to be s+e3f-euecutinq wit#
<br /> reapect to compensation, it escaped the problems of sovereign immunity. See
<br /> Jacobs v. Unftent States , 290 U.'S'* t 3 (15'33) ; 3 J. Saekman, :supra, at 9 8-. 31123
<br /> 8'01(41 tal. n5 Whether 1*17,1 by planned acquisition through the exercise~
<br /> of °eltinen:t domain, or a payment of ter the fact through inverse :co ndemnatia;t,
<br /> there was routinely present in ;these cases the fact of physical.. entry upon, acid
<br /> ateupation of private property by the government.
<br /> _ - — — _ — — — — — — — _ — — -, — -Footnotesi
<br /> I
<br /> n5 Accord Preseault V. T.C-.0{,, 494 U.S. 1 , 11 (1990) ("(the fifth Amendient7
<br /> is `'designed 'to secure compensation in the event of otherwise proper
<br /> interference amount rtq to a taking. ' " (quoting First English Evan_gelica3
<br /> Lutheran Church,s emphasis in or ginal) "All that is required is the existence
<br /> of a reasonable, certain and adequate provision for obtaining compensation' at
<br /> the time of the takinga):-,
<br /> End Footnotes
<br /> occasionally an issue arose as to whether the, gove;cnment.'s. activity was:
<br /> short lived as to be more like the tart of trespass than a taking of propeirty.
<br /> The distinction between the government vehicle parked one day on O's lana while
<br /> the driver eats lunch, on the one hand, and the entry on 01"s land by the {
<br /> government for thiel purpose of establishing [*187 a long term storage lot for
<br /> i+ehicles anis equipment, on the bitter, is clear enough. The fact that scnvereign;
<br /> im*U4ityt might 05u.late. the oV rrnment from liability fn the tort but not In: the
<br /> takiraq makes fdr.,. fnternestirnq line-drawirnq in the close cases,: and p:rovidesg
<br /> emplaryment for 3;anyers. see 1 p;. Nichols, supra.,, at. 9 113.
<br /> 3 ..�. Y... ..
<br /> ?'C °ad!t areal; takings dbctrii'ne,,, based as it is mn the indicia of phy5ica3:
<br /> occupation of land., do.e.s.1 not- fit easily into the issues that ardse with the
<br /> :e0ergence of the re.julatory tai e. in in early case Justice :Holmes declared this
<br /> basic pro-11t ohi ' the general rule at leant is, that while property may be
<br /> requlateni. tot a. Certain extent-, it requlation goes too far it will be recdqf od
<br /> as)a° takings" Pennsylvania Goal Vo, v, Mahan+ 260 U.S:. 393, 415 (1922) .
<br /> uA 'few; years later ttte; Suprem� Court was confronted ;with what had emerged as
<br /> the government's' mast pervasive, mechanism for regulating land use: zonintq.f,WhfIe :
<br /> Upfold: nq zonfn� as a crsnstitut onally permissible activity in general, tree
<br /> LEXIS
<br />
|