746
Opinion of Souter, J.
authority for the tort treatment the plurality claims to be the appropriate analogy. See Gardner v. Village of Newburgh, 2 Johns. Ch. 162 (N. Y. 1816) (Kent, Ch.); Pumpelly v. Green Bay Co., 13 Wall. 166 (1872). One other is arguably such authority; Richards v. Washington Terminal Co., 233 U. S. 546 (1914), is somewhat ambiguous, holding that the law of nuisance would provide compensation for interference with enjoyment of land when the State chose not to take the interest by direct condemnation; the measure of damages (not explained) may well have been what the Fifth Amendment would provide for a temporary partial taking.
Beyond these cases, however, any prospect of a uniform tort treatment disappears. One of the plurality's cited cases, Bradshaw v. Rodgers, 20 Johns. 103 (N. Y. 1822), was reversed by Rogers v. Bradshaw, 20 Johns. 735 (N. Y. 1823). As the concept of public liability was explained in the latter opinion, it turned not on an issue of garden variety tort law, but on whether there was a total absence or not of legal authority for a defending public officer's action with respect to the land. See id., at 743 ("I should doubt exceedingly, whether the general principle, that private property is not to be taken for public uses without just compensation, is to be carried so far as to make a public officer, who enters upon private property by virtue of legislative authority, specially given for a public purpose, a trespasser, if he enters before the property has been paid for. I do not know, nor do I find, that the precedents will justify any court of justice in carrying the general principle to such an extent"). See also Brauneis, The First Constitutional Tort: The Remedial Revolution in Nineteenth-Century State Just Compensation Law, 52 Vand. L. Rev. 57, 64-65 (1999) (demonstrating that pre-Civil War owner-initiated just compensation plaintiffs
ing of the writ, the court actually divided equally, the result being denial of the writ. Moreover, even within that opinion, the quoted statement is the equivalent of dictum since it is not necessary to the reasoning in favor of granting the writ.
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