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<br />2916
<br />
<br />112 SUPREME COURT REPORTER
<br />
<br />505 U.s. 1058
<br />
<br />right to injure or endanger the public.24 In
<br />the Coates cases, for example, the Supreme
<br />Court of New York found no taking in New
<br />York's ban on the interment of the dead
<br />within the city, although "no other use can be
<br />made of these lands." Coates v. City of New
<br />York, 7 Cow. 585, 592 (N.Y.I827). See also
<br />Brick Presbyterian Church v. City of New
<br />York, 5 Cow. 538 (N.Y.I826); Commonwealth
<br />v. Alger, 7 Cush. 53, 69, 104 (Mass.1851); St.
<br />Louis Gunning Advertisement Co. v. St.
<br />Louis, 235 Mo. 99, 146, 137 S.W. 929, 942
<br />(1911), appeal dism'd, 231 U.S. 761, 34 S.Ct.
<br />325, 58 L.Ed. 470 (1913). More recent cases
<br />reach the same result. See Consolidated
<br />Rock Products Co. v. Los Angeles, 57 Cal.2d
<br />516, 20 Cal.Rptr. 638, 370 P.2d 342, appeal
<br />dism'd, 371 U.S. 36, 83 S.Ct 145, 9 L.Ed.2d
<br />112 (1962); Nassr V.J.!g69Commonwealth, 394
<br />Mass. 767, 477 N.E.2d 987 (1985); Eno v.
<br />Burlington, 125 Vt. 8, 209 A.2d 499 (1965);
<br />Turner v. County of Del Norte, 24 CaL
<br />App.3d 311, 101 Cal.Rptr. 93 (1972).
<br />
<br />was followed by some States into the 1800's.
<br />See Horwitz 63-65.
<br />
<br />With similar result, the common agrarian
<br />conception of property limited owners to
<br />"natural" uses of their land prior to and
<br />during much of the 18th century. See id., at
<br />32. Thus, . for example, the owner could build
<br />nothing on his land that would alter the
<br />natural flow of water. See id., at 44; see
<br />also, e.g., Merritt v. Parker, 1 Coxe 460, 463
<br />(N.J.1795). Some more recent state courts
<br />still follow this reasoning. See, e.g., Just v.
<br />Marinette County, 56 Wis.2d 7, 201 N.W.2d
<br />761, 768 (1972).
<br />
<br />Nor does history indicate any common-law
<br />limit on the State's power to regulate harm-
<br />ful uses even to the point of destroying all
<br />economic value. . Nothing in the discussions
<br />in Congress concerning the Takings Clause
<br />indicates that the Clause was limited by the
<br />common-law nuisance d9ctrine. Common-
<br />law courts themselves rejected such an un-
<br />derstanding. They regularly recognized that
<br />In addition, state courts historically have it is "for the legislature to interpose, and by
<br />been less likely to find that a government positive enactment to prohibit a use of prop-
<br />action constitutes a taking when the affected erty which would be injurious to the public."
<br />land is undeveloped. According to the South ..,Lw6oTewksbury, 11 Mete., at 67.25 Chief Jus-
<br />Carolina court, the power of the legislature tice Shaw explained in upholding a regulation
<br />to take unimproved land without providing prohibiting construction of wharves, the exis-
<br />compensation was sanctioned by "ancient tence of a taking did not depend on "whether
<br />rights and principles." Lindsay v. Commis- a certain erection in tide water is a nuisance
<br />sWners, 2 S.C.L. 38, 67 (1796). "Except for at common law or not" Alger, 7 Cush., at
<br />Massachusetts, no colony appears to have 104; see also Stat~ v. Pau~ 5 R.I. 185, 193
<br />paid compenSation when it built a state- (1858); Commonwealth v. Parks, 155 Mass.
<br />owned road across unimproved land. Legis- 631, 532, 30 N.E. 174 (1892) (Holmes, J.)
<br />latures provided compensation only for en- ("[T]he legislature may change the common
<br />closed or improved land." Treanor, 94 Yale law as to nuisances, and may move the line
<br />L.J., at 695 (footnotes omitted). This rule either way, so as to make things nuisances
<br />
<br />24. For this reason, the retroactive application of
<br />the regulation to fonnerly lawful uses was not a
<br />controlling distinction in the past. "Nor can it
<br />make any difference that the right is purchased
<br />previous to the passage of the by-law," for "[elv-
<br />ery right, from an absolute ownership in proper-
<br />ty, down to a mere easement, is purchased and
<br />holden subject to the restriction, that it shall be
<br />so exercised as not to injure others. Though. at
<br />the time, it be remote and inoffensive, the pur-
<br />chaser is bound to know, at his peril, that it may
<br />become otherwise." Coates v. City of New York,
<br />
<br />7 Cow. 585, 605 (N.Y. 1827). See also Brick
<br />Presbyterian Church v. City of New York, 5 Cow.
<br />538. 542 (N.Y.J826); Commonwealth v. Tewks-
<br />bury, 11 Mete. 55 (Mass.l846); State v. Paul,S
<br />RI. 185 (1858).
<br />
<br />25. More recent state-court decisions agree. See.
<br />e.g., Lane v. Mt. Vernon, 38 N.Y.2d 344, 348-349.
<br />379 N.Y.S.2d 798, 800, 342 N.E.2d 571, 573
<br />(1976); Commonwealth v. Baker. 160 Pa.Super.
<br />640,641-642.53 A.2d 829,830 (1947).
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