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Services of Mead Data Central, Inc. <br /> _ k <br /> PAGE 14 <br /> 1991 U.S. ;app. LEXIS 30233, *31 <br /> F if th Amendment <br /> 4 physical occupation of private property by the government which is adjudged <br /> t 323 to be of a permanent nature is a taking, and that is true without regard <br /> to whether the action achieve5lan important public benefit or has only minimal <br /> economic impaction the owner. Loretto v. Teleprompter Manhattan CATV Corp., 458 <br /> 4i. .' 419 (1982) 1 (placement by authority of the government of cable television <br /> (CATV) cable and connection boxes. on the roof of an apartment building was a <br /> taking under the traditional. test) . A5 Justice Marshall said in Loretto "when <br /> the physical intrusion reaches tate extreme form of a permanent physical <br /> occupation, a taking has occurred. In such a case, 'the character of the <br /> government action' not only is" an i�tportant factor in restilvinq whether (iii <br /> action works a taking but also' is determinative.-" id. at 426. <br /> in this context, 'pe-rmanent 3 does not mean forever,, or anything like it. A <br /> taring can be for ai limited teat -- what is 'taken' is, in the: lanquatge of real. <br /> pr'operty:lawt an estate for years;, that is, a term of finite duration as <br /> distinct froiti the infinite term of an estate in. 'fee 53Mp1eabsolute. tWhile <br /> called an estate for years, thi term can be for less than a year. See generally <br /> Cribbet, Principles L 331 of the Law of Property 54 `t3d W. 19891 .4 <br /> ' In United States v. General, Motors Corp., 323 U,5 373 i19.4511the <br /> 913V4rnment's appropriation of the unexpired term of a warehouse lease wa5 `a <br /> taking; the fact that it was finite went to the determination of compensation. <br /> rather than to the question of i whether a taking had occurred Accord, United <br /> Mates v. .Pett�r;Motor Co., 3�7,� U.S. 372 (19'46) (federal #rivernnrent aciquired the <br /> remainder of a lease four a building! ; Kimball Laundry Co. v. united States,; .338: <br /> W:S. 1 i 9...1 tfedera�. government appropriated private business for Ublic use <br /> duiri,nq World filar I;10: a taking!:J. <br /> w <br /> 'there is nothing 'tentporary� about the wells the Government installed drt <br /> plaintiffs' paperty, int the sense in which we used it in :referring to t`he <br /> parked truck of. the .lunchtime 'risitatr. Fears have passed since the 6overamertt. <br /> =.talled the first wei .s4 the`wel,ls are some 1Oi3 feet deep, lined with plastic <br /> sta mess steel, anis su;rrourtded by gravel. and cement. Each aaell was capped <br /> with a cement cbs ng lined wit. reinforcing steel barsj, and encl.t�5ei1 by a i <br /> railing 'of steel pipe set i.n ceatent. These surveillance wells are C*341; at ; <br /> least as 'peraartent in this sense as the CATV equipment In Loretto. which <br /> comprised orily a few cables attached by screws and nails and a box attached by <br /> bolts. 458 UA.il. at 422`. Nothinb in the Government's actiVities suggests that. the <br /> wells were :a momentary excursion shortly to be withdrawn] and thus little. a(c)re <br /> than( a trespass n'1t Nor does kho order or the Government's subsequent actions <br /> disclose any fndication of a Timetablefor withdrawal <br /> -Footnotes;- - - _ _ - _ _ _ ..,.. <br /> Although not before thea trial court at the time ;it made its rullft it <br /> nqw ,-appears, that additional wells have been installed pu rstiant to tree <br /> dovernmer}t's pro- ... sit that at the gime this case upas argued there were. some <br /> 1 :wells :in.: place.. <br /> -End Footnotes- _ - _ - _ _ _ _ _ <br /> :.: <br /> } Part of the .difficult}r here; is the confu'siom that arises in the cases and <br /> 4 comientar3es aver the use of the term "temporary taking. 612 The arquaent i'rr <br /> LEXIS .MEJ(. 7S EXIS NEXIS <br /> y - <br />