1054
Blackmun, J., dissenting
The threshold inquiry for imposition of the Court's new rule, "deprivation of all economically valuable use," itself cannot be determined objectively. As the Court admits, whether the owner has been deprived of all economic value of his property will depend on how "property" is defined. The "composition of the denominator in our 'deprivation' fraction," ante, at 1017, n. 7, is the dispositive inquiry. Yet there is no "objective" way to define what that denominator should be. "We have long understood that any land-use regulation can be characterized as the 'total' deprivation of an aptly defined entitlement. . . . Alternatively, the same regulation can always be characterized as a mere 'partial' withdrawal from full, unencumbered ownership of the landholding affected by the regulation . . . ." 18 Michelman, Takings, 1987, 88 Colum. L. Rev. 1600, 1614 (1988).
The Court's decision in Keystone Bituminous Coal illustrates this principle perfectly. In Keystone, the Court determined that the "support estate" was "merely a part of the entire bundle of rights possessed by the owner." 480 U. S., at 501. Thus, the Court concluded that the support estate's destruction merely eliminated one segment of the total property. Ibid. The dissent, however, characterized the support estate as a distinct property interest that was wholly destroyed. Id., at 519. The Court could agree on no "value-free basis" to resolve this dispute.
Even more perplexing, however, is the Court's reliance on common-law principles of nuisance in its quest for a value-free takings jurisprudence. In determining what is a nuisance at common law, state courts make exactly the decision that the Court finds so troubling when made by the South Carolina General Assembly today: They determine whether the use is harmful. Common-law public and private nui-18 See also Michelman, Property, Utility, and Fairness, Comments on the Ethical Foundations of "Just Compensation" Law, 80 Harv. L. Rev. 1165, 1192-1193 (1967); Sax, Takings and the Police Power, 74 Yale L. J. 36, 60 (1964).
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