Thurgood Marshall

“ Not every physical invasion is a taking. As Pruneyard Shopping Center v. Robins, 447 U. S. 74 (1980) , Kaiser Aetna v. United States, 444 U. S. 164 (1979) , and the intermittent flooding cases reveal, such temporary limitations are subject to a more complex balancing process to determine whether they are a taking. The rationale is evident: they do not absolutely dispossess the owner of his rights to use, and exclude others from, his property.
The dissent objects that the distinction between a permanent physical occupation and a temporary invasion will not always be clear. ”

“ The right of a property owner to exclude a stranger's physical occupation of his land cannot be so easily manipulated.↑ We also decline to hazard an opinion as to the respective rights of the landlord and tenant under state law prior to enactment of §828 to use the space occupied by the cable installation, an issue over which the parties sharply disagree.↑ If §828 required landlords to provide cable installation if a tenant so desires, the statute might present a different question from the question before us, since the landlord would own the installation. ”

“ But a landlord's ability to rent his property may not be conditioned on his forfeiting the right to compensation for a physical occupation. Teleprompter's broad "use-dependency" argument proves too much. For example, it would allow the government to require a landlord to devote a substantial portion of his building to vending and washing machines, with all profits to be retained by the owners of these services and with no compensation for the deprivation of space. ”

“ Teleprompter notes that the law applies only to buildings used as rental property, and draws the conclusion that the law is simply a permissible regulation of the use of real property. We fail to see, however, why a physical occupation of one type of property but not another type is any less a physical occupation. Insofar as Teleprompter means to suggest that this is not a permanent physical invasion, we must differ. So long as the property remains residential and a CATV company wishes to retain the installation, the landlord must permit it. ”

“ Finally, even though the owner may retain the bare legal right to dispose of the occupied space by transfer or sale, the permanent occupation of that space by a stranger will ordinarily empty the right of any value, since the purchaser will also be unable to make any use of the property. ”

“ Over dissenting Justice Harlan's complaint that "as a practical matter the Order led to consequences no different from those that would have followed the temporary acquisition of physical possession of these mines by the United States," id., at 181, the Court reasoned that "the Government did not occupy, use, or in any manner take physical possession of the gold mines or of the equipment connected with them." Id., at 165–166. The Court concluded that the temporary though severe restriction on use of the mines was justified by the exigency of war. ”

“ Later cases, relying on the character of a physical occupation, clearly establish that permanent occupations of land by such installations as telegraph and telephone lines, rails, and underground pipes or wires are takings even if they occupy only relatively insubstantial amounts of space and do not seriously interfere with the landowner's use of the rest of his land. ”

“ The short answer is that §828 (1) (a) does not purport to give the tenant any enforceable property rights with respect to CATV installation, and the lower courts did not rest their decisions on this ground. [18] Of course, Teleprompter, not appellant's tenants, actually owns the installation. Moreover, the government does not have unlimited power to redefine property rights. See Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U. S. 155, 164 (1980) ("a State, by ipse dixit, may not transform private property into public property without compensation") . ”

“ Frontier Telephone Co., 186 N. Y. 486, 79 N. E. 716 (1906) , holding that ejectment would lie where a telephone wire was strung across the plaintiff's property without touching the soil. The Court quoted the following language:
"' [A] n owner is entitled to the absolute and undisturbed possession of every part of his premises, including the space above, as much as a mine beneath. If the wire had been a huge cable, several inches thick and but a foot above the ground, there would have been a difference in degree, but not in principle. ”

“ On appeal, the Court of Appeals, over dissent, upheld the statute. 53 N. Y. 2d 124, 423 N. E. 2d 320 (1981) . The court concluded that the law requires the landlord to allow both crossover and noncrossover installations but permits him to request payment from the CATV company under §828 (1) (b) , at a level determined by the State Cable Commission, only for noncrossovers. ”

“ At one time it was commonly held that, in the absence of explicit expropriation, a compensable 'taking' could occur only through physical encroachment and occupation. The modern significance of physical occupation is that courts, while they sometimes do hold nontrespassory injuries compensable, never deny compensation for a physical takeover. ”

“ United States v. Cress, 243 U. S. 316, 327–328 (1917) ; Sanguinetti v. United States, 264 U. S. 146, 149 (1924) (to be a taking, flooding must "constitute an actual, permanent invasion of the land, amounting to an appropriation of, and not merely an injury to, the property") ; United States v. Kansas City Life Ins. Co., 339 U. S. 799, 809–810 (1950) .
In St. Louis v. Western Union Telegraph Co., 148 U. S. 92 (1893) , the Court applied the principles enunciated in Pumpelly to a situation closely analogous to the one presented today. In that case, the Court held that the city of St. ”