美国财产法Chapter 13 Taking

Chapter 13 Takings

A.Foundation Era

1.Noxious use or nuisance test: A regulation adopted under the police power to

protect the public health, safety, or welfare was not a taking, even if it reduced the value of property.

2.If regulation goes too far it will be recognize as a taking. The question is, there is

no clear standard to of how far is too far.

B. A new doctrine

1.The regulatory taking doctrine was first recognized in Pennsylvania Coal case.

But the standard in this case has been superseded by more modern tests, like the Penn Central standard.

2.Pennsylvania Coal Co. v. Mahon (1922)

(1)Facts: The deed between Coal Co and Mahon in 1878 provided that Coal Co

reserved the right to remove all the coal under the land, and P assumed all the risks and waived all claims for damages that might have arisen from the mining of coal. The Kohler act, 1921, forbids the mining of anthracite coal which cause the subsidence to the surface estate. Mahon sued the Coal Co to prevent its mining. The Coal Co claim that the act goes to too far which actually become regulatory takings to his mineral estate.

(2)Issue: whether the Kohler Act can be recognized as a taking

(3)Rule: three factors test:

a.Diminution of value

b.Public interest/private nuisance

c.Reciprocity of advantage

(4)Reasoning:

a.Diminution of value ( denominator problem)

1)Majority: 100%, huge

2)Dissent: values are relative, we should look at the land as a whole, not much

b.Public interest/private nuisance

1)Majority: Mahon`s property is a single home, so the public safety interest is

not enough here. The public safety can be protected by notice or other tools.

2)Dissent: public nuisance, cause harm to the public

c.Reciprocity of advantage

1)Majority: no advantage to Coal company

2)Dissent: regulate the competitors of Coal company as well, allow society to

be safer, prevent people from injured so fewer law suits. And Brandeis

thought that where police power is exercised to protect the public from

detriment and danger, there is no room for considering reciprocity of

advantage.

(5)Points for discussion

a.The opinion failed to provide a clear standard for deciding whether a taking

exist.

b.Hypos on P923

(1) Not a taking

a. Diminution of value: 10% diminution. Not much

b. Public interest: protect apple industry

c. Reciprocity of advantages: maybe no

(2) Probably not a taking

a. Diminution of value: 90% diminution, but in Pennsylvania Coal, it is 100%

b. Public interest: prevent cancer (prevent all landowners)

c. Reciprocity of advantages: make people healthy and environment better

C.The Penn Central standard

1.The Penn Central Court created a new three-factor balancing test for determining

if a regulatory taking had occurred. This is the basic standard used in most regulatory takings decisions today.

2.Penn Central Transportation Co. v. City of New York (1978)

(1)Facts: Penn Central owned the Grand Central Terminal, which was designated

by application of New York’s Landmarks Preservation Law to be a landmark.

Thereafter, the Appellant entered into a renewable 50-year lease with UGP, under which the UGP agreed to construct a multistory office building on top of the terminal. The plan was denied by the commission.

(2)Issue: whether a taking has occurred

(3)Rule: three factors balancing test

a.Economic impact of the regulation on the claimant