1058
Blackmun, J., dissenting
the constitution protected possession only, and not value." Siegel, Understanding the Nineteenth Century Contract Clause: The Role of the Property-Privilege Distinction and "Takings" Clause Jurisprudence, 60 S. Cal. L. Rev. 1, 76 (1986); Bosselman 106. Even indirect and consequential injuries to property resulting from regulations were excluded from the definition of a taking. See ibid.; Callender v. Marsh, 1 Pick. 418, 430 (Mass. 1823).
Even when courts began to consider that regulation in some situations could constitute a taking, they continued to uphold bans on particular uses without paying compensation, notwithstanding the economic impact, under the rationale that no one can obtain a vested right to injure or endanger the public.24 In the Coates cases, for example, the Supreme Court of New York found no taking in New York's ban on the interment of the dead within the city, although "no other use can be made of these lands." Coates v. City of New York, 7 Cow. 585, 592 (N. Y. 1827). See also Brick Presbyterian Church v. City of New York, 5 Cow. 538 (N. Y. 1826); Commonwealth v. Alger, 7 Cush. 53, 59, 104 (Mass. 1851); St. Louis Gunning Advertisement Co. v. St. Louis, 235 Mo. 99, 146, 137 S. W. 929, 942 (1911), appeal dism'd, 231 U. S. 761 (1913). More recent cases reach the same result. See Consolidated Rock Products Co. v. Los Angeles, 57 Cal. 2d 515, 370 P. 2d 342, appeal dism'd, 371 U. S. 36 (1962); Nassr v.
24 For this reason, the retroactive application of the regulation to formerly lawful uses was not a controlling distinction in the past. "Nor can it make any difference that the right is purchased previous to the passage of the by-law," for "[e]very right, from an absolute ownership in property, down to a mere easement, is purchased and holden subject to the restriction, that it shall be so exercised as not to injure others. Though, at the time, it be remote and inoffensive, the purchaser is bound to know, at his peril, that it may become otherwise." Coates v. City of New York, 7 Cow. 585, 605 (N. Y. 1827). See also Brick Presbyterian Church v. City of New York, 5 Cow. 538, 542 (N. Y. 1826); Commonwealth v. Tewksbury, 11 Metc. 55 (Mass. 1846); State v. Paul, 5 R. I. 185 (1858).
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