1052
Blackmun, J., dissenting
B
Ultimately even the Court cannot embrace the full implications of its per se rule: It eventually agrees that there cannot be a categorical rule for a taking based on economic value that wholly disregards the public need asserted. Instead, the Court decides that it will permit a State to regulate all economic value only if the State prohibits uses that would not be permitted under "background principles of nuisance and property law." 15 Ante, at 1031.
Until today, the Court explicitly had rejected the contention that the government's power to act without paying compensation turns on whether the prohibited activity is a common-law nuisance.16 The brewery closed in Mugler itself was not a common-law nuisance, and the Court specifically stated that it was the role of the legislature to deter-15 Although it refers to state nuisance and property law, the Court apparently does not mean just any state nuisance and property law. Public nuisance was first a common-law creation, see Newark, The Boundaries of Nuisance, 65 L. Q. Rev. 480, 482 (1949) (attributing development of nuisance to 1535), but by the 1800's in both the United States and England, legislatures had the power to define what is a public nuisance, and particular uses often have been selectively targeted. See Prosser, Private Action for Public Nuisance, 52 Va. L. Rev. 997, 999-1000 (1966); J. Stephen, A General View of the Criminal Law of England 105-107 (2d ed. 1890). The Court's references to "common-law" background principles, however, indicate that legislative determinations do not constitute "state nuisance and property law" for the Court.
16 Also, until today the fact that the regulation prohibited uses that were lawful at the time the owner purchased did not determine the constitutional question. The brewery, the brickyard, the cedar trees, and the gravel pit were all perfectly legitimate uses prior to the passage of the regulation. See Mugler v. Kansas, 123 U. S., at 654; Hadacheck v. Sebastian, 239 U. S. 394 (1915); Miller, 276 U. S., at 272; Goldblatt v. Hempstead, 369 U. S. 590 (1962). This Court explicitly acknowledged in Hadacheck that "[a] vested interest cannot be asserted against [the police power] because of conditions once obtaining. To so hold would preclude development and fix a city forever in its primitive conditions." 239 U. S., at 410 (citation omitted).
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