Item B: Ordinance Concerning Goal 5 Natural Resources Study

Home Browse Search

2914 112 SUPREME COURT REPORTER 505 U.S. 1054 In Keystone, the Court determined that the "support estate" was "merely a part of the entire bundle of rights possessed by the own- er." 480 U.S., at 501, 107 S.Ct., at 1250. Thus, the Court concluded that the support estate's destroction 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, 107 S.Ct., at 1260. 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 ~ value-free takings jurisprudence. In detennining what is a nui- sance at common law, state courts make ex- actly 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 n~Cel()65 law is simply a determination whether a particular use causes harm. See Prosser; Private Action for Public Nuisance, 52 Va.L.Rev. 997 (1966) ("Nuisance is a French word which means nothing more than harm"). There is nothing magical in the reasoning of judges long dead. They determined a harm in the same way as state judges and legislatures do today. If judges in the 18th and 19th centuries can distinguish a harm from a benefit, why not judges in the 20th century, and if judges can, why not legislators? There simply is no reason to believe that new interpretations of the hoary common-law nuisance doctrine will be particularly "objective" or "Value free." 19 Once one abandons the level of generality of 19. "There is perhaps no more impenetrable jun- gle in the entire law than that which surrounds the 'word 'nuisance: It has meant all things to all people, and has been applied indiscriminately to everything from an alarming advertisement to a cockroach baked in a pie." W. Keeton, D. Dobbs. R. Keeton & D. Owen, Prosser and Kee- ton on The Law of Torts 616 (5th ed. 1984) (footnotes omitted). It is an area of law that sic utere tJuo ut alienum non laedas, ante, at 2901, one searches in vain, I think, for any- thing resembling a principle in the common law of nuisance. C Finally, the Court justifies its new rule that the legislature may not deprive a prop- erty owner of the only economically valuable use of his land, even if the legislature finds it to be a harmful use, because such action is not part of the "'long recognized'" "under- standings of our citizens.>> Ante, at 2899. These "understandings" permit such regula- tion only if the use is a nuisance under the common law. Any other course is "inconsis- tent with the historical compact recorded in the Takings Clause." Ante, at 2900. It is not clear from the. Court'~opinion where our ''historical compact" or "citizens' under- standing" comes from, but it does not appear to be history. The principle that the State should com- pensate individuals for property taken for public use was not' widely established in America at the time of the Revolution. "The colonists ... inherited ... a concept of property which permitted extensive reg- ulation of the use of that property for the public benefit-regulation that could even go so far as to deny all productive use of the property to the owner if, as Coke himself stated, the. regulation 'extends to the public benefit ... for this is for the public, and every one hath benefit by it.' " F. Bosselman, D. Callies, & J. Banta, The Taking Issue 80-81 (1973), quoting The Case of the King's Prerogative in Saltpe- tre, 12 Co. Rep. 12-13 (1606) (hereinafter "straddles the .legal universe. virtually defies syn- thesis. and generates case law to suit every taste." W. Rodgers, Environmental Law ~ 2.4, p. 48 (1986) (footnotes omitted). The Court itself has noted that "nuisance concepts" are "often vague and indeterminate." Milwaukee v. Illi- nois, 451 U.S. 304, 317,101 S.Ct. 1784, 1792,68 L.Ed.2d 114 (1981).