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Services of Mead Data Central, lnc. <br /> U PAGE 16 <br /> f y 1991 U4S, App.. LEXIS 30233, *37 K <br /> 'i <br /> cont`i4uous navigable waters. An exclusive subdivision community was then built , <br /> around the marina. The. lagoon had been private property before the development, <br /> and the property owners continued to deny access to the public after the r , <br /> deve,'lop�ten t. " . <br /> Subse uentl the claimed that the or err owners were re wired <br /> 1 Q y, " p p �' <br /> to open the logbon to jnembers of the public; who might choose to visit by boat, <br /> sine it was now subject to thg "navigational servitude," 1te Court held that if <br /> the Government wished to lm;;04 public use C*387 -- even intermittent publ;i,c <br /> USE '^- of t11e. 1:agoot1 L( lC1Ct the roperty owners, it Was required :to pad 10.st <br /> compensation. The Court expla n d <br /> In this case, we #to1,d khat thea"r� qht to exclude," so universally held to :be a. <br /> fundamental element off the property right, falls within this category of <br /> interests that the: .Goyernment Cannot take without compensation, the <br /> impositidtl of the: naviationall,servitude in this Context will result in an <br /> ac, 1 physical invasion Of the privately owned 'marina.: And even ifthe <br /> Government phrstcaZly �tnr►ades only an easement in property, it must nonetheless <br /> R"Y _AuS:t: :CnMPERsat:.ian ,tcit t ioA s b i tted') . <br /> Id?. at 170._80;. <br /> .The principle t3:f Kaiser :Aetna. was reinforced in Nollan v, California Coastal <br /> 1.C mMn n, 483 U.S. 825 (1.98.7) . Justice Scalia, writing for the Court. sattl <br /> To ,say that the appropriationl1of a public easement across a landowner's <br /> premises does not constitute the' taking of a property interest but rather: . <br /> 'a' mere restriction on' its use; ' is to use wards in a manner that deprives <br /> them of all their ordinary meanint). . We have repeatedly held that, as to <br /> 1 pr,aplerty ;reserved by fts owners 1*3 3 for private use, 'the right to exclude <br /> (others isl ' 'one of the most essential sticks in the bundle of rir)hts that are <br /> commonly characterized as property. I (citinq Loretto and Kaiser Aetna] �, . We <br /> think a `permanent physical occupation' has occurred . , where individuals are <br /> given a permanent and :;cctntinuaits right to pass to and fro, so that the real <br /> ,property may continuously be traversed, even though no particular individual is <br /> permitted to station himself permanently, upon the premises.,, Nollan v. <br /> California Coastal Comm'n 483 U.S, at 831-32.. <br /> The evidence before the court in Hendler I reflected a situation in which :the <br /> Government behaved aslif it had acquired an easement not unlike that cla%mad in <br /> Kisser Aetna. Pursuant to the easement, the Government at its canvettience drove . <br /> equipment upon plaintiffs' land for the .purpose of installing and perio+�ically <br /> servicing and obtaintnt{ infla'rmation from the various wells it had lobated there,. <br /> Kaiser Aetna .and Nollan. would seem to leave little doubt that such: activity, <br /> avers though temporal.l intermittent, is not 'te�npa.rary►. ' It i5 a taKinq of the <br /> plaintiffs' rid t to exclude, for the duration [*4[ l of the :period in'alhi;ch <br /> the 'wel are an tate property ;end subject to the: Government's need to servtce <br /> them:., :n.1 3. c <br /> footnotes- - <br /> f <br /> n13 Accord, Un i ted:j S tates va Causby, 328 U.S.. 256 (1946;) tthe no%se fr6m <br /> government pianes passinq a me'iIe 83 feet agave plaintiffs property <br /> 'the ' <br /> constituted a takin s4� :Of even thaugt such overflights occurred for anly the <br /> takeoffs and for 7X of the lanhings) <br /> C!t <br /> r <br /> LEXIS`NEXIS <br /> LEXIS <br /> i <br />