Cite as: 505 U. S. 1003 (1992)
Blackmun, J., dissenting
Commonwealth, 394 Mass. 767, 477 N. E. 2d 987 (1985); Eno v. Burlington, 125 Vt. 8, 209 A. 2d 499 (1965); Turner v. County of Del Norte, 24 Cal. App. 3d 311, 101 Cal. Rptr. 93 (1972).
In addition, state courts historically have been less likely to find that a government action constitutes a taking when the affected land is undeveloped. According to the South Carolina court, the power of the legislature to take unim-proved land without providing compensation was sanctioned by "ancient rights and principles." Lindsay v. Commissioners, 2 S. C. L. 38, 57 (1796). "Except for Massachusetts, no colony appears to have paid compensation when it built a state-owned road across unimproved land. Legislatures provided compensation only for enclosed or improved land." Treanor, 94 Yale L. J., at 695 (footnotes omitted). This rule was followed by some States into the 1800's. See Horwitz 63-65.
With similar result, the common agrarian conception of property limited owners to "natural" uses of their land prior to and during much of the 18th century. See id., at 32. Thus, for example, the owner could build nothing on his land that would alter the natural flow of water. See id., at 44; see also, e. g., Merritt v. Parker, 1 Coxe 460, 463 (N. J. 1795). Some more recent state courts still follow this reasoning. See, e. g., Just v. Marinette County, 56 Wis. 2d 7, 201 N. W. 2d 761, 768 (1972).
Nor does history indicate any common-law limit on the
State's power to regulate harmful uses even to the point of destroying all economic value. Nothing in the discussions in Congress concerning the Takings Clause indicates that the Clause was limited by the common-law nuisance doctrine. Common-law courts themselves rejected such an understanding. They regularly recognized that it is "for the legislature to interpose, and by positive enactment to prohibit a use of property which would be injurious to the public."
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