458 U.S. 419
Argued March 30, 1982.
Decided June 30, 1982.
The syllabus constitutes no part of the opinion of the Court
but has been prepared by the Reporter of Decisions for the
convenience of the reader.
See United States v. Detroit Lumber Co., 200 U.S. 321,
337, 26 S.Ct. 282, 287, 50 L.Ed. 499.
A New York statute provides
that a landlord must permit a cable television
(CATV) company to install its CATV facilities upon
his property and may not demand payment from the company in
excess of the amount determined by a State Commission to be
to the statute, the Commission ruled that a one-time $1 payment
was a reasonable fee.
After purchasing a five-story apartment building in
New York City, appellant landlord discovered that appellee
CATV companies had installed cables on the building, both
"crossovers" for serving other buildings and "noncrossovers"
for serving appellant's tenants.
Appellant then brought a class action for damages and
injunctive relief in a New York state court, alleging, inter
alia, that installation of the cables insofar as appellee
companies relied on the New York statute constituted a taking
without just compensation.
Appellee New York City, which had granted the companies
an exclusive franchise to provide CATV within certain areas
of the city, intervened.
Upholding the New York statute, the trial court granted
summary judgment to appellees.
The Appellate Division of the New York Supreme Court
affirmed, and on further appeal the New York Court of Appeals
also upheld the statute, holding that it serves the legitimate
police power purpose of eliminating landlord fees and conditions
that inhibit the development of CATV, which has important
educational and community benefits.
Rejecting appellant's argument that a physical occupation
authorized by government is necessarily a taking, the court
further held that the statute did not have an excessive economic
impact upon appellant when measured against her aggregate
property rights, did not interfere with any reasonable investment-backed
expectations, and accordingly did not work a taking of appellant's
: The New York
statute works a taking of a portion of appellant's property
for which she is entitled to just compensation under the Fifth
Amendment, as made applicable to the States by the Fourteenth
When the "character of the governmental action,"
Penn Central Transportation Co. v. New York City, 438 U.S.
104, 124, 98 S.Ct. 2646, 2659, 57 L.Ed.2d 631, is a permanent
physical occupation of real property, there is a taking to
the extent 420
of the occupation without regard
to whether the action achieves an important public
benefit or has only minimal economic impact on the owner. Pp. 3171-3176.
To the extent that the government permanently occupies physical
property, it effectively destroys the owner's rights to possess,
use, and dispose of the property.
Moreover, the owner suffers a special kind of injury
when a stranger invades and occupies the owner's property.
Such an invasion is qualitatively more severe than
a regulation of the use of property, since the owner may have
no control over the timing, extent, or nature of the invasion.
And constitutional protection for the rights of private property
cannot be made to depend on the size of the area permanently
Here, the cable installation on appellant's building constituted
a taking under the traditional physical occupation test, since
it involved a direct physical attachment of plates, boxes,
wires, bolts, and screws to the building, completely occupying
space immediately above and upon the roof and along the building's
There is no constitutional difference between a crossover
and noncrossover installation, since portions of the installation
necessary for both types of installation permanently appropriated
appellant's property. The fact that the New York statute applies only to buildings
used as rental property does not make it simply a regulation
of the use of real property.
Physical occupation of one type of property but not
another is no less a physical occupation.
The New York statute does not purport to give the tenant
any enforceable property rights with respect to CATV installation,
and thus cannot be construed as merely granting a tenant a
property right as an appurtenance to his leasehold. Application of the physical occupation rule in this case
will not have dire consequences for the government's power
to adjust landlord‑tenant relationships, since it in
no way alters the usual analysis governing a State's power
to require landlords to comply with building codes. Pp. 3177-3179.
N.Y.2d 124, 440 N.Y.S.2d 843, 423 N.E.2d 320, reversed and
S. Gruen argued the cause and filed briefs for appellant.
N. Griswold argued the cause for appellees.
With him on the brief for appellees Teleprompter Manhattan
421 CATV Corp. et al. was Michael
Lesch. Frederick A.O. Schwarz, Jr., and Leonard Koerner filed
a brief for appellee City of New York.*
Michael D. Botwin and James J. Bierbower filed a brief for
the National Satellite Cable Association et al. as amici curiae
of amici curiae urging affirmance were filed by Robert Abrams,
Attorney General, pro se, Shirley Adelson Siegel, Solicitor
General, and Lawrence J. Logan, Assistant Attorney General,
for the Attorney General of New York;
by Brenda L. Fox, James H. Ewalt, and Robert St. John
Roper for the National Cable Television Association, Inc.;
and by Stuart Robinowitz and Richard A. Rosen for the
New York State Cable Television Association.
Justice MARSHALL delivered
the opinion of the Court.
This case presents the
question whether a minor but permanent physical occupation
of an owner's property authorized by government constitutes
a "taking" of property for which just compensation
is due under the Fifth and Fourteenth Amendments of the Constitution.
New York law provides that a landlord must permit a
cable television company to install its cable facilities upon
his property. N.Y.Exec.Law
§ 828(1) (McKinney Supp. 1981-1982).
In this case, the cable installation occupied portions
of appellant's roof and the side of her building.
The New York Court of Appeals ruled that this appropriation
does not amount to a taking. 53 N.Y.2d 124, 440 N.Y.S.2d 843, 423 N.E.2d 320 (1981).
Because we conclude that such a physical occupation
of property is a taking, we reverse.
Appellant Jean Loretto purchased a five-story
apartment building located at 303 West 105th Street, New York
City, in 1971.
The previous owner had granted appellees Teleprompter
Corp. and Teleprompter Manhattan CATV (collectively Teleprompter)
[FN1] permission to install a cable on the building
and the exclusive privilege of furnishing cable 422 television (CATV) services to the tenants.
The New York Court of Appeals described the installation
Teleprompter Manhattan CATV was formerly a subsidiary, and
is now a division, of Teleprompter Corp.
June 1, 1970 TelePrompter installed a cable slightly less
than one-half inch
in diameter and of approximately 30 feet in length along
the length of the building about 18 inches above the roof
top, and directional taps, approximately 4 inches by 4 inches
by 4 inches, on the front and rear of the roof.
By June 8, 1970 the cable had been extended another
4 to 6 feet and cable had been run from the directional taps
to the adjoining building at 305 West 105th Street."
Id., at 135, 440 N.Y.S.2d, at 847, 423 N.E.2d, at 324.
Teleprompter also installed two large
silver boxes along the roof cables.
The cables are attached by screws or nails penetrating
the masonry at approximately two-foot intervals, and other
equipment is installed by bolts.
Initially, Teleprompter's roof cables
did not service appellant's building.
They were part of what could be described as a cable
"highway" circumnavigating the city block, with
service cables periodically dropped over the front or back
of a building in which a tenant desired service.
Crucial to such a network is the use of so-called "crossovers"
-- cable lines extending from one building to another in order
to reach a new group of tenants. [FN2]
Two years after appellant purchased the building, Teleprompter
connected a "noncrossover" line -- i.e., one that
provided CATV service to appellant's own tenants -- by dropping
a line to the first floor down the front of appellant's building.
The Court of Appeals defined a "crossover" more
comprehensively as occurring:
(1) the line servicing the tenants in a particular building
is extended to adjacent or adjoining buildings, (2) an amplifier
which is placed on a building is used to amplify signals to
tenants in that building and in a neighboring building or
buildings, and (3) a line is placed on a building, none of
the tenants of which are provided CATV service, for the purpose
of providing service to an adjoining or adjacent building."
53 N.Y.2d, at 133, n. 6, 440 N.Y.S.2d, at 846, n. 6,
423 N.E.2d, at 323, n. 6.
Prior to 1973, Teleprompter routinely
obtained authorization for its installations from property
owners along the cable's route, compensating the owners at
the standard rate of 5% of the gross revenues that Teleprompter
realized from the particular property.
To facilitate tenant access to CATV, the State of New
York enacted § 828 of the Executive Law, effective January
1, 1973. Section
828 provides that a landlord may not "interfere with
the installation of cable television facilities upon his property
or premises," and may not demand payment from any tenant
for permitting CATV, or demand payment from any CATV company
"in excess of any amount which the [State Commission
on Cable Television] shall, by regulation, determine to be
The landlord may, however, require the CATV company
or the tenant to bear the cost of installation and to indemnify
for any damage caused by the installation.
Pursuant to § 828(1)(b), the State Commission has ruled
that a one-time $1 payment 424 is the normal fee to which a landlord is
the Matter of Implementation of Section 828 of the Executive
Law, No. 90004, Statement of General Policy (New York State
Commission on Cable Television, Jan. 15, 1976) (Statement
of General Policy),
App. 51‑52; Clarification
of General Policy (Aug. 27, 1976), App. 68‑69.
The Commission ruled that this nominal fee, which the
Commission concluded was equivalent to what the landlord would
receive if the property were condemned pursuant to New York's
Transportation Corporations Law, satisfied constitutional
requirements "in the absence of a special showing of
greater damages attributable to the taking."
Statement of General Policy, App. 52.
New York Exec.Law § 828 (McKinney Supp. 1981-1982) provides
"1. No landlord shall
"a. interfere with the installation of
cable television facilities upon his property or premises,
except that a landlord may require:
"i. that the installation of cable television
facilities conform to such reasonable conditions as are necessary
to protect the safety, functioning and appearance of the premises,
and the convenience and well-being of other tenants;
"ii. that the cable television company
or the tenant or a combination thereof bear the entire cost
of the installation, operation or removal of such facilities;
"iii. that the cable television company
agree to indemnify the landlord for any damage caused by the
installation, operation or removal of such facilities. "b.
demand or accept payment from any tenant, in any form, in
exchange for permitting cable television service on or within
his property or premises, or from any cable television company
in exchange therefor in excess of any amount which the commission
shall, by regulation, determine to be reasonable;
"c. discriminate in rental charges, or
otherwise, between tenants who receive cable television service
and those who do not."
did not discover the existence of the cable until after she
had purchased the building.
She brought a class action against Teleprompter in
1976 on behalf of all owners of real property in the State
on which Teleprompter has placed CATV components, alleging
that Teleprompter's installation was a trespass and, insofar
as it relied on § 828, a taking without just compensation.
She requested damages and injunctive relief. [FN4]
Appellee City of New York, which has granted Teleprompter
an exclusive franchise to provide CATV within certain areas
of Manhattan, intervened.
The Supreme Court, Special Term, granted summary judgment
to Teleprompter and the city, upholding the constitutionality
of § 828 in both crossover and noncrossover situations.
98 Misc.2d 944, 415 N.Y.S.2d 180 (1979).
The Appellate Division affirmed without opinion.
73 A.D.2d 849, 422 N.Y.S.2d 550 (1979).
FN4. Class-action status was granted in accordance
with appellant's request, except that owners of single‑family
dwellings on which a CATV component had been placed were excluded.
Notice to the class has been postponed, however, by
appeal, the Court of Appeals, over dissent, upheld the statute.
53 N.Y.2d 124, 440 N.Y.S.2d 843, 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
425 request payment from the CATV
company under § 828(1)(b), at a level determined by the State
Cable Commission, only for noncrossovers.
The court then ruled that the law serves a legitimate
police power purpose -- eliminating landlord fees and conditions
that inhibit the development of CATV, which has important
educational and community benefits.
Rejecting the argument that a physical occupation authorized
by government is necessarily a taking, the court stated that
the regulation does not have an excessive economic impact
upon appellant when measured against her aggregate property
rights, and that it does not interfere with any reasonable
Accordingly, the court held that § 828 does not work
a taking of appellant's property.
Chief Judge Cooke dissented, reasoning that the physical
appropriation of a portion of appellant's property is a taking
without regard to the balancing analysis courts ordinarily
employ in evaluating whether a regulation is a taking.
light of its holding, the Court of Appeals had no occasion
to determine whether the $1 fee ordinarily awarded for a noncrossover
installation was adequate compensation for the taking.
Judge Gabrielli, concurring, agreed with the dissent
that the law works a taking but concluded that the $1 presumptive
award, together with the procedures permitting a landlord
to demonstrate a greater entitlement, affords just compensation.
We noted probable jurisdiction.
454 U.S. 938, 102 S.Ct. 472, 70 L.Ed.2d 246 (1981).
Court of Appeals determined that § 828 serves the legitimate
public purpose of "rapid development of and maximum penetration
by a means of communication which has important educational
and community aspects," 53 N.Y.2d, at 143-144, 440 N.Y.S.2d,
at 852, 423 N.E.2d, at 329, and thus is within the State's
We have no reason to question that determination.
It is a separate question, however, whether an otherwise
valid regulation so frustrates property rights that compensation
must be paid.
See Penn Central Transportation
426 Co. v. New York City, 438 U.S.
104, 127-128, 98 S.Ct. 2646,
2660-2661, 57 L.Ed.2d 631 (1978);
Delaware, L. & W. R. Co. v. Morristown, 276 U.S.
182, 193, 48 S.Ct. 276, 278, 72 L.Ed. 523 (1928).
We conclude that a permanent physical occupation authorized
by government is a taking without regard to the public interests
that it may serve.
Our constitutional history confirms the rule, recent
cases do not question it, and the purposes of the Takings
Clause compel its retention.
Penn Central Transportation Co. v. New York City, supra, the
Court surveyed some of the general principles governing the
Takings Clause. The Court noted that no "set formula" existed to
determine, in all cases, whether compensation is constitutionally
due for a government restriction of property.
Ordinarily, the Court must engage in "essentially
ad hoc, factual inquiries."
Id., at 124, 98 S.Ct., at 2659.
But the inquiry is not standardless.
The economic impact of the regulation, especially the
degree of interference with investment‑backed expectations,
is of particular significance.
"So, too, is the character of the governmental
'taking' may more readily be found when the interference with
property can be characterized as a physical invasion by government,
than when interference arises from some public program adjusting
the benefits and burdens of economic life to promote the common
As Penn Central affirms, the Court has often upheld substantial
regulation of an owner's use of his own property where deemed
necessary to promote the public interest.
At the same time, we have long considered a physical
intrusion by government to be a property restriction of an
unusually serious character for purposes of the Takings Clause. Our cases further establish that when the physical intrusion
reaches the extreme form of a permanent physical occupation,
a taking has occurred.
In such a case, "the character of the government
action" not only is an important factor in resolving
whether the action works a taking but also is determinative.
faced with a constitutional challenge to a permanent physical
occupation of real property, this Court has invariably found
a taking. [FN5] As early as 1872, in Pumpelly v. Green Bay Co., 13 Wall. (80
U.S.) 166, 20 L.Ed. 557, this Court held that the defendant's
construction, pursuant to state authority, of a dam which
permanently flooded plaintiff's property constituted a taking.
A unanimous Court stated, without qualification, that
"where real estate is actually invaded by superinduced
additions of water, earth, sand, or other material, or by
having any artificial structure placed on it, so as to effectually
destroy or impair its usefulness, it is a taking, within the
meaning of the
Id., 13 Wall. (80 U.S.) at 181.
Seven years later, the Court reemphasized the importance
of a physical occupation by distinguishing a regulation that
merely restricted the use of private property.
In Northern Transportation Co. v. Chicago, 99 U.S.
635, 25 L.Ed. 336 (1879), the Court held that the city's construction
of a temporary dam in a river to permit
construction of a tunnel was not a taking, even though the
plaintiffs were thereby denied access to their premises, because
the obstruction only impaired the use of plaintiffs' property.
The Court distinguished earlier cases in which permanent
flooding of private property was regarded as a taking, e.g.,
Pumpelly, supra, as involving "a physical invasion of
the real estate of the private owner, and a practical ouster
of his possession."
In this case, by contrast, "[n]o entry was made
upon the plaintiffs' lot."
99 U.S., at 642.
FN5. Professor Michelman has accurately summarized
the case law concerning the role of the concept of physical
invasions in the development of takings jurisprudence:
"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.
The one incontestable case for compensation (short of formal
expropriation) seems to occur when the government deliberately
brings it about that its agents, or the public at large, 'regularly'
use, or 'permanently' occupy, space or a thing which theretofore
was understood to be under private ownership." Michelman, Property, Utility, and Fairness:
Comments on the Ethical Foundations of "Just Compensation"
Law, 80 Harv.L.Rev. 1165, 1184 (1967) (emphasis in original;
footnotes omitted). See also 2 J. Sackman, Nichols'
Law of Eminent Domain 6-50, 6-51 (rev. 3d ed. 1980);
L. Tribe, American Constitutional Law 460 (1978).
For historical discussions, see 53 N.Y.2d,
at 157-158, 440 N.Y.S.2d, at 860-861, 423 N.E.2d, at 337-338
(Cooke, C.J., dissenting);
F. Bosselman, D. Callies, & J. Banta, The Taking
Issue 51 (1973); Stoebuck,
A General Theory of Eminent Domain, 47 Wash.L.Rev. 553, 600-601
Griggs v. Allegheny County in Perspective:
Thirty Years of Supreme Court Expropriation Law, 1962
S.Ct.Rev. 63, 82; Cormack, Legal Concepts in Cases of Eminent Domain, 41 Yale
L.J. 221, 225 (1931).
these early cases, this Court has consistently distinguished
between flooding cases involving a permanent physical occupation,
on the one hand, and cases involving a more temporary invasion,
or government action outside the owner's property that causes
consequential damages within, on the other.
A taking has always been found only in the former situation.
See United States v. Lynah, 188 U.S. 445, 468-470,
23 S.Ct. 349, 356-357, 47 L.Ed. 539 (1903);
Bedford v. United States, 192 U.S. 217, 225, 24 S.Ct.
238, 240, 48 L.Ed. 414 (1904);
United States v. Cress, 243 U.S. 316, 327-328, 37 S.Ct.
380, 384-385, 61 L.Ed. 746 (1917);
Sanguinetti v. United States, 264 U.S. 146, 149, 44
S.Ct. 264, 265, 68 L.Ed. 608 (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, 70 S.Ct. 885, 890-891, 94 L.Ed. 1277 (1950).
St. Louis v. Western Union Telegraph Co., 148 U.S. 92, 13
S.Ct. 485, 37 L.Ed. 380 (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. Louis
could exact reasonable compensation for a telegraph company's
placement of telegraph poles on the city's public streets.
The Court reasoned:
use which the [company] makes of the streets is an exclusive
and permanent one, and not one temporary, shifting and in
common with the general public.
The ordinary traveler, whether on foot or in a vehicle,
passes to and fro along the streets, and his use and occupation
thereof are temporary
The space he occupies one moment he abandons the next
to be occupied by any other traveller....
But the use made by the telegraph company is, in respect
to so much of the space as it occupies with its poles, permanent
and exclusive. It as effectually and permanently dispossesses the general
public as if it had destroyed that amount of ground. Whatever benefit the public may receive in the way of
transportation of messages, that space is, so far as respects
its actual use for purposes of highway and personal travel,
wholly lost to the public....
* * *
It matters not for what that exclusive appropriation is taken,
whether for steam railroads or street railroads, telegraphs
or telephones, the state may if it chooses exact from the
party or corporation given such exclusive use pecuniary compensation
to the general public for being deprived of the common use
of the portion thus appropriated."
Id., at 98-99, 101-102, 13 S.Ct., at 488-489 (emphasis
The City of New York objects that this case only involved
a city's right to charge for use of its streets, and not the
power of eminent domain;
the city could have excluded the company from any use
of its streets.
But the physical occupation principle upon which the
right to compensation was based has often been cited as authority
in eminent domain cases.
See, e.g., Western Union Telegraph Co. v. Pennsylvania
R. Co., 195 U.S. 540, 566-567, 25 S.Ct. 133, 139-140, 49 L.Ed.
312 (1904); California v. United States, 395 F.2d 261, 263,
n. 4 (CA9 1968).
Also, the Court squarely held that insofar as the company
relied on a federal statute authorizing its use of post roads,
an appropriation of state property would require compensation.
St. Louis v. Western Union Telegraph Co., 148 U.S.,
at 101, 13 S.Ct., at 489.
Similarly, in Western
Union Telegraph Co. v. Pennsylvania R. Co., 195 U.S. 540,
25 S.Ct. 133, 49 L.Ed. 312 (1904), a telegraph company constructed
and operated telegraph lines over a railroad's right of way.
In holding that federal law did not grant the company
the right of eminent domain or the right to operate the lines
absent the railroad's consent, the Court assumed that 430
the invasion of the telephone
lines would be a compensable taking.
Id., at 570, 25 S.Ct., at 141 (the right-of-way "cannot
be appropriated in whole or in part except upon the payment
of compensation"). 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.
See, e.g., Lovett v. West Va. Central Gas Co., 65 W.Va.
739, 65 S.E. 196 (1909); Southwestern Bell Telephone Co. v.
Webb, 393 S.W.2d 117, 121 (Mo.App.1965). Cf. Portsmouth Harbor
Land & Hotel Co. v. United States, 260 U.S. 327, 43 S.Ct.
135, 67 L.Ed. 287 (1922).
See generally 2 J. Sackman, Nichols' Law of Eminent
Domain § 6.21 (rev. 3d ed. 1980). [FN7]
Early commentators viewed a physical occupation of real property
as the quintessential deprivation of property.
See, e.g., 1 W. Blackstone, Commentaries *139;
J. Lewis, Law of Eminent Domain in the United States
197 (1888) ("Any invasion of property, except in case
of necessity ..., either upon, above or below the surface,
and whether temporary or permanent, is a taking :
as by constructing a ditch through it, passing under
it by a tunnel, laying gas, water or sewer pipes in the soil,
or extending structures over it, as a bridge or telephone
wire" (footnote omitted;
emphasis in original)); 1 P. Nichols, Law of Eminent
Domain 282 (2d ed. 1917).
More recent cases confirm the distinction
between a permanent physical occupation, a physical invasion
short of an occupation, and a regulation that merely restricts
the use of property. In United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062,
90 L.Ed. 1206 (1946), the Court ruled that frequent flights
immediately above a landowner's property constituted a taking,
comparing such overflights to the quintessential form of a
by reason of the frequency and altitude of the flights, respondents
could not use this land for any purpose, their loss would
be complete. It
would be as complete as if the United States had entered upon
the surface of the land and taken exclusive possession of
at 261, 66 S.Ct., at 1065 (footnote omitted).
the Court further explained,
would not doubt that, if the United States erected an elevated
railway over respondents' land at the precise altitude where
its planes now fly, there would be a partial taking, even
though none of the supports of the structure rested on the
reason is that there would be an intrusion so immediate and
direct as to subtract from the owner's full enjoyment of the
property and to limit his exploitation of it."
Id., at 264-265, 66 S.Ct., at 1067.
Court concluded that the damages to the respondents "were
not merely consequential. They were the product of a direct invasion of respondents'
at 265‑266, 66 S.Ct., at 1067-1068.
See also Griggs v. Allegheny County, 369 U.S. 84, 82
S.Ct. 531, 7 L.Ed.2d 585 (1962).
wartime takings cases are also instructive.
In United States v. Pewee Coal Co., 341 U.S. 114, 71
S.Ct. 670, 95 L.Ed. 809 (1951), the Court unanimously held
that the Government's seizure and direction of operation of
a coal mine to prevent a national strike of coal miners constituted
a taking, though members of the Court differed over which
losses suffered during the period of Government control were
compensable. The plurality had little difficulty concluding that because
there had been an "actual taking of possession and control,"
the taking was as clear as if the Government held full title
and ownership. Id.,
at 116, 71 S.Ct., at 671 (plurality opinion of Black, J.,
with whom Frankfurter, Douglas, and Jackson, JJ., joined;
no other Justice challenged this portion of the opinion).
In United States v. Central Eureka Mining Co., 357
U.S. 155, 78 S.Ct. 1097, 2 L.Ed.2d 1228 (1958), by contrast,
the Court found no taking where the Government had issued
a wartime order requiring nonessential gold mines to cease
operations for the purpose of conserving equipment and manpower
for use in mines more essential to the war effort.
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, 78 S.Ct., at 1110; 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, 78 S.Ct., at 1102-1103.
The Court concluded that the temporary though severe
restriction on use of the mines was justified by the exigency
of war. [FN8] Cf.
YMCA v. United States, 395 U.S. 85, 92, 89 S.Ct. 1511, 1515,
23 L.Ed.2d 117 (1969) ("Ordinarily, of course, government
occupation of private property deprives the private owner
of his use of the property, and it is this deprivation for
which the Constitution requires compensation").
Indeed, although dissenting Justice Harlan would have treated
the restriction as if it were a physical occupation, it is
significant that he relied on physical appropriation as the
paradigm of a taking.
See United States v. Central Eureka Mining Co., 357
U.S., at 181, 183-184, 78 S.Ct., at 1110, 1111-1112.
this Court's most recent cases have not addressed the precise
issue before us, they have emphasized that physical invasion
cases are special and have not repudiated the rule that any
permanent physical occupation is a taking.
The cases state or imply that a physical invasion is
subject to a balancing process, but they do not suggest that
a permanent physical occupation would ever be exempt from
the Takings Clause.
Central Transportation Co. v. New York City, as noted above,
contains one of the most complete discussions of the Takings
Clause. The Court explained that resolving whether public action
works a taking is ordinarily an ad hoc inquiry in which several
factors are particularly significant -- the economic impact
of the regulation, the extent to which it interferes with
investment-backed expectations, and the character of the governmental
action. 438 U.S., at 124, 98 S.Ct., at 2659.
The opinion does not repudiate the rule that a permanent
physical occupation is a government action of such a unique
character that it is a taking without regard to other factors
that a court might ordinarily examine. [FN9]
The City of New York and the opinion of the Court of Appeals
place great emphasis on Penn Central's reference to a physical
invasion "by government," 438 U.S., at 124, 98 S.Ct.,
at 2659, and argue that a similar invasion by a private party
should be treated differently.
A permanent physical occupation authorized by state
law is a taking without regard to whether the State, or instead
a party authorized by the State, is the occupant. See, e.g., Pumpelly v. Green Bay Co., 13 Wall. (80 U.S.)
166, 20 L.Ed. 557 (1872).
Penn Central simply holds that in cases of physical
invasion short of permanent appropriation, the fact that the
government itself commits an invasion from which it directly
benefits is one relevant factor in determining whether a taking
has occurred. 438
U.S., at 124, 128, 98 S.Ct., at 2659, 2661.
In Kaiser Aetna v. United States, 444 U.S. 164, 100 S.Ct.
383, 62 L.Ed.2d 332 (1979), the Court held that the Government's
imposition of a navigational servitude requiring public access
to a pond was a taking where the landowner had reasonably
relied on Government consent in connecting the pond to navigable
Court emphasized that the servitude took
the landowner's right to exclude, "one of the most
essential sticks in the bundle of rights that are commonly
characterized as property."
Id., at 176, 100 S.Ct., at 391.
The Court explained:
is not a case in which the Government is exercising its regulatory
power in a manner that will cause an insubstantial devaluation
of petitioner's private property;
rather, the imposition of the navigational servitude
in this context will result in an actual physical invasion
of the privately owned marina....
And even if the Government physically invades only
an easement in property, it must nonetheless pay compensation.
See United States v. Causby, 328 U.S. 256, 265 [66
S.Ct. 1062, 1067, 90 L.Ed. 1206] (1946); Portsmouth Co. v.
United States, 260 U.S. 327 [43 S.Ct. 135, 67 L.Ed. 287] (1922)."
Id., at 180, 100 S.Ct., at 393 (emphasis added).
Although the easement of passage, not
being a permanent occupation of land, was not considered a
taking per se, Kaiser Aetna reemphasizes that a physical invasion
is a government intrusion of an unusually serious character.
See also Andrus v. Allard, 444 U.S. 51, 100 S.Ct. 318, 62
L.Ed.2d 210 (1979). That case held that the prohibition of the sale of eagle
feathers was not a taking as applied to traders of bird artifacts.
"The regulations challenged here do not compel the surrender
of the artifacts, and there is no physical invasion or restraint
upon them. ... In this case, it is crucial that appellees retain the rights
to possess and transport their property, and to donate or
devise the protected birds.
... [L]oss of future profits -- unaccompanied by any
physical property restriction -- provides a slender reed upon
which to rest a takings claim."
Id., at 65-66, 100 S.Ct., at 326-327.
Another recent case underscores the
constitutional distinction between a permanent occupation
and a temporary physical invasion.
In PruneYard Shopping Center v. Robins, 447 U.S. 74,
100 S.Ct. 2035, 64 L.Ed.2d 741 (1980), the Court upheld a
state constitutional requirement that shopping center owners
permit individuals to exercise free speech and petition rights
on their property, to which they had already invited the general
Court emphasized that the State Constitution does not prevent
the owner from restricting expressive activities by imposing
reasonable time, place, and manner restrictions to minimize
interference with the owner's commercial functions. Since the invasion was temporary and limited in nature,
and since the owner had not exhibited an interest in excluding
all persons from his property, "the fact that [the solicitors]
may have 'physically invaded' [the owners'] property cannot
be viewed as determinative."
Id., at 84, 100 S.Ct., at 338. [FN11]
Teleprompter's reliance on labor cases requiring companies
to permit access to union organizers, see, e.g., Hudgens v.
NLRB, 424 U.S. 507, 96 S.Ct. 1029, 47 L.Ed.2d 196 (1976);
Central Hardware Co. v. NLRB, 407 U.S. 539, 92 S.Ct.
2238, 33 L.Ed.2d 122 (1972);
NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 76
S.Ct. 679, 100 L.Ed. 975 (1956), is similarly misplaced.
As we recently explained: "[T]he allowed intrusion
on property rights is limited to that necessary to facilitate
the exercise of employees' § 7 rights [to organize under the
National Labor Relations Act]. After the requisite need for access to the employer's property
has been shown, the access is limited to (i) union organizers;
(ii) prescribed non-working areas of the employer's
premises; and (iii) the duration of the organization activity.
In short, the principle of accommodation announced
in Babcock is limited to labor organization campaigns, and
the 'yielding' of property rights it may require is both temporary
and limited." Central
Hardware Co., supra, at 545, 92 S.Ct., at 2242.
In short, when the "character
of the governmental action," Penn Central, 438 U.S.,
at 124, 98 S.Ct., at 2659, is a permanent physical occupation
of property, our cases uniformly have found a taking to the
extent of the occupation, without regard to
435 whether the action achieves
an important public benefit or has only minimal economic impact
on the owner.
The historical rule that a permanent
physical occupation of another's property is a taking has
more than tradition to commend it.
Such an appropriation is perhaps
the most serious form of invasion of an owner's property
borrow a metaphor, cf. Andrus v. Allard, 444 U.S. 51, 65-66,
100 S.Ct. 318, 326-327, 62 L.Ed.2d 210 (1979), the government
does not simply take a single "strand" from the
"bundle" of property rights:
it chops through the bundle, taking a slice of every
Property rights in a physical
thing have been described as the rights "to possess,
use and dispose of it."
United States v. General Motors Corp., 323 U.S. 373,
378, 65 S.Ct. 357, 359, 89 L.Ed. 311 (1945).
To the extent that the government permanently occupies
physical property, it effectively destroys each of these rights.
First, the owner has no right to possess the occupied
space himself, and also has no power to exclude the occupier
from possession and use of the space.
The power to exclude has traditionally been considered
one of the most treasured strands in an owner's bundle of
property rights. [FN12]
See Kaiser Aetna,
444 U.S., at 179-180, 100 S.Ct., at
also Restatement of Property § 7 (1936).
Second, the permanent physical occupation of property
forever denies the owner any power to control the use of the
property; he not only cannot exclude others, but can make no nonpossessory
use of the property.
Although deprivation of the right to use and obtain
a profit from property is not, in every case, independently
sufficient to establish a taking, see Andrus v. Allard, supra,
at 66, 100 S.Ct., at 327, it is clearly relevant.
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.
The permanence and absolute exclusivity of a physical occupation
distinguish it from temporary limitations on the right to
exclude. Not every physical invasion is a taking.
As PruneYard Shopping Center v. Robins, 447 U.S. 74,
100 S.Ct. 2035, 64 L.Ed.2d 741 (1980); Kaiser Aetna v. United States, 444 U.S. 164, 100 S.Ct. 383,
62 L.Ed.2d 332 (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.
Post, at 3183. This objection is overstated, and in any event is irrelevant
to the critical point that a permanent physical occupation
is unquestionably a taking.
In the antitrust area, similarly, this Court has not
declined to apply a per se rule simply because a court must,
at the boundary of the rule, apply the rule of reason and
engage in a more complex balancing analysis.
an owner suffers a special kind of injury when a stranger
directly invades and occupies the owner's property.
As Part II-A, supra, indicates, property law has long
protected an owner's expectation that he will be relatively
undisturbed at least in the possession of his property.
To require, as well, that the owner permit another
to exercise complete dominion literally adds insult to injury.
See Michelman, Property, Utility, and Fairness:
Comments on the Ethical Foundations of "Just Compensation"
Law, 80 Harv.L.Rev. 1165, 1228, and n. 110 (1967).
Furthermore, such an occupation is qualitatively more
severe than a regulation of the use of property, even a regulation
that imposes affirmative duties on the owner, since the owner
may have no control over the timing, extent, or nature of
See n. 19, infra.
traditional rule also avoids otherwise difficult line‑drawing
problems. Few would disagree that if the State required landlords
to permit third parties to install swimming pools on the landlords'
rooftops for the convenience of the tenants, the requirement
would be a taking.
If the cable installation here occupied as much space,
again, few would disagree that the occupation would be a taking.
But constitutional protection for the rights of private
property cannot be made to depend on the
size of the area permanently occupied.
437 1413 [FN13]
Indeed, it is possible that in the future, additional
cable installations that more significantly restrict a landlord's
use of the roof of his building will be made.
Section 828 requires a landlord to permit such multiple
FN13. In United States v. Causby, 328 U.S.
256, 66 S.Ct. 1062, 90 L.Ed. 1206 (1946), the Court approvingly
cited Butler v. 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.
Expand the wire into a beam supported by posts standing
upon abutting lots without touching the surface of plaintiff's
land, and the difference would still be one of degree only.
Enlarge the beam into a bridge, and yet space only
would be occupied.
Erect a house upon the bridge, and the air above the
surface of the land would alone be disturbed.' "
328 U.S., at 265, n. 10, 66 S.Ct., at 1067, n. 10,
quoting Butler Frontier Telephone Co., supra, at 491-492,
79 N.E., at 718.
FN14. Although the City of New York has granted
an exclusive franchise to Teleprompter, it is not required
to do so under state law, see N.Y.Exec.Law § 811 et seq. (McKinney
Supp. 1981-1982), and future changes in technology may cause
the city to reconsider its decision. Indeed, at present some
communities apparently grant nonexclusive franchises.
Brief for National Satellite Cable Association et al.
as Amici Curiae 21.
whether a permanent physical occupation has occurred presents
relatively few problems of proof.
The placement of a fixed structure on land or real
property is an obvious fact that will rarely be subject to
dispute. Once the fact of occupation is shown, of course,
a court should consider the extent of the occupation as one
relevant factor in determining the compensation due. [FN15]
For that reason, moreover, there is
less need to consider the extent of the occupation in determining
whether there is a taking in the first instance.
FN15. In this case, the Court of Appeals noted
testimony preceding the enactment of § 828 that the landlord's
interest in excluding cable installation "consists entirely
of insisting that some negligible unoccupied space remain
N.Y.2d, at 141, 440 N.Y.S.2d, at 851, 423 N.E.2d, at 328 (emphasis
State Cable Commission referred to the same testimony in establishing
a $1 presumptive award. Statement of General Policy, App.
A number of the dissent's arguments -- that
§ 828 "likely increases both the building's resale value
and its attractiveness on the rental market," post, at
3185, and that appellant might have no alternative use for
the cable-occupied space, post, at 3185-3186 -- may also be
relevant to the amount of compensation due.
It should be noted, however, that the first argument
is speculative and is contradicted by appellant's testimony
that she and "the whole block" would be able to
sell their buildings for a higher price absent the installation.
cable installation on appellant's building constitutes a taking
under the traditional test.
The installation involved a direct physical attachment
of plates, boxes, wires, bolts, and screws to the building,
completely occupying space immediately above and upon the
roof and along the building's exterior wall. [FN16]
FN16. It is constitutionally irrelevant whether
appellant (or her predecessor in title) had previously occupied
this space, since a "landowner owns at least as much
of the space above the ground as he can occupy or use in connection
with the land." United States v. Causby, supra, at 264, 66 S.Ct., at 1067.
The dissent asserts that a taking of about
one‑eighth of a cubic foot of space is not of constitutional
significance. Post, at 3180.
The assertion appears to be factually incorrect, since
it ignores the two large silver boxes that appellant identified
as part of the installation.
App. 90; Loretto
Affidavit in Support of Motion for Summary Judgment (Apr.
21, 1978), Appellants' Appendix in No. 8300/76 (N.Y.App.),
p. 77. Although
the record does not reveal their size, appellant states that
they are approximately 18"' x 12"' x 6"', Brief
for Appellant 6 n.*, and appellees do not dispute this statement.
The displaced volume, then, is in excess of 1 1/2 cubic
any event, these facts are not critical:
whether the installation is a taking does not depend
on whether the volume of space it occupies is bigger than
light of our analysis, we find no constitutional difference
between a crossover and a noncrossover installation.
The portions of the installation necessary for both
crossovers and noncrossovers permanently appropriate appellant's
each type of installation is a taking.
raise a series of objections to application of the traditional
rule here. Teleprompter
notes that the law applies only to buildings used as rental
property, and draws the 439 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
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. [FN17]
FN17. It is true that the landlord could avoid
the requirements of § 828 by ceasing to rent the building
to tenants. 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. It would even allow the government to requisition a certain
number of apartments as permanent government offices. The right of a property owner to exclude a stranger's
physical occupation of his land cannot be so easily manipulated.
also asserts the related argument that the State has effectively
granted a tenant the property right to have a CATV installation
placed on the roof of his building, as an appurtenance to
the tenant's leasehold.
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. [FN18]
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, 101 S.Ct. 446, 452, 66 L.Ed.2d 358 (1980) ("a
State, by ipse dixit, may not transform private property into
public property without compensation").
FN18. 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
440 Finally, we do not agree with appellees
that application of the physical occupation rule will have
dire consequences for the government's power to adjust landlord-tenant
This Court has consistently affirmed that States have
broad power to regulate housing conditions in general and
the landlord-tenant relationship in particular without paying
compensation for all economic injuries that such regulation
e.g., Heart of Atlanta Motel, Inc. v. United States, 379 U.S.
241, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964) (discrimination in
places of public accommodation);
Queenside Hills Realty Co. v. Saxl, 328 U.S. 80, 66
S.Ct. 850, 90 L.Ed. 1096 (1946) (fire regulation);
Bowles v. Willingham, 321 U.S. 503, 64 S.Ct. 641, 88
L.Ed. 892 (1944) (rent control);
Home Building & Loan Assn. v. Blaisdell, 290 U.S.
398, 54 S.Ct. 231, 78 L.Ed. 413 (1934) (mortgage moratorium);
Edgar A. Levy Leasing Co. v. Siegel, 258 U.S. 242,
42 S.Ct. 289, 66 L.Ed. 595 (1922) (emergency housing law);
Block v. Hirsh, 256 U.S. 135, 41 S.Ct. 458, 65 L.Ed.
865 (1921) (rent control).
In none of these cases, however, did the government
authorize the permanent occupation of the landlord's property
by a third party.
Consequently, our holding today in no way alters the
analysis governing the State's power to require landlords
to comply with building codes and provide utility connections,
mailboxes, smoke detectors, fire extinguishers, and the like
in the common area of a building.
So long as these regulations do not require the landlord
to suffer the physical occupation of a portion of his building
by a third party, they will be analyzed under the multifactor
inquiry generally applicable to nonpossessory governmental
Penn Central Transportation Co. v. New York City, 438 U.S.
104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978). [FN19]
FN19. 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. Ownership would
give the landlord rights to the placement, manner, use, and
possibly the disposition of the installation.
The fact of ownership is, contrary to the dissent,
not simply "incidental," post, at 3183;
it would give a landlord (rather than a CATV company)
full authority over the installation except only as government
specifically limited that authority. The landlord would decide how to comply with applicable
government regulations concerning CATV and therefore could
minimize the physical, esthetic, and other effects of the
Moreover, if the landlord wished to repair, demolish,
or construct in the area of the building where the installation
is located, he need not incur the burden of obtaining the
CATV company's cooperation in moving the cable. In this case,
by contrast, appellant suffered injury that might have been
obviated if she had owned the cable and could exercise control
over its installation.
The drilling and stapling that accompanied installation
apparently caused physical damage to appellant's building. App. 83, 95-96, 104.
Appellant, who resides in her building, further testified
that the cable installation is "ugly."
Id., at 99.
Although § 828 provides that a landlord may require
"reasonable" conditions that are "necessary"
to protect the appearance of the premises and may seek indemnity
for damage, these provisions are somewhat limited.
Even if the provisions are effective, the inconvenience
to the landlord of initiating the repairs remains a cognizable
holding today is very narrow.
We affirm the traditional rule that a permanent physical
occupation of property is a taking.
In such a case, the property owner entertains a historically
rooted expectation of compensation, and the character of the
invasion is qualitatively more intrusive than perhaps any
other category of property regulation.
We do not, however, question the equally substantial
authority upholding a State's broad power to impose appropriate
restrictions upon an owner's use of his property.
our conclusion that § 828 works a taking of a portion of appellant's
property does not presuppose that the fee which many landlords
had obtained from Teleprompter prior to the law's enactment
is a proper measure of the value of the property taken.
The issue of the amount of compensation that is due,
on which we express no opinion, is a matter for the state
courts to consider on remand. [FN20]
FN20. In light of our disposition of appellant's
takings claim, we do not address her contention that § 828
deprives her of property without due process of law.
442 The judgment of the New York Court of
Appeals is reversed, and the case is remanded for further
proceedings not inconsistent with this opinion.
is so ordered.
BLACKMUN, with whom Justice BRENNAN and Justice WHITE join,
the Court's decisions construing the Takings Clause state
anything clearly, it is that "[t]here is no set formula
to determine where regulation ends and taking begins."
Goldblatt v. Town of Hempstead, 369 U.S. 590, 594,
82 S.Ct. 987, 990, 8 L.Ed.2d 130 (1962). [FN1]
FN1. See Kaiser Aetna v. United States, 444
U.S. 164, 175, 100 S.Ct. 383, 390, 62 L.Ed.2d 332 (1979);
Andrus v. Allard, 444 U.S. 51, 65, 100 S.Ct. 318, 326,
62 L.Ed.2d 210 (1979) ("There is no abstract or fixed
point at which judicial intervention under the Takings Clause
Penn Central Transportation Co. v. New York City, 438
U.S. 104, 124, 98 S.Ct. 2646, 2659, 57 L.Ed.2d 631 (1978);
United States v. Caltex, Inc., 344 U.S. 149, 156, 73
S.Ct. 200, 203, 97 L.Ed. 157 (1952) ("No rigid rules
can be laid down to distinguish compensable losses from noncompensable
Coal Co. v. Mahon, 260 U.S. 393, 416, 43 S.Ct. 158, 160, 67
L.Ed. 322 (1922) (a takings question "is a question of
degree -- and therefore cannot be disposed of by general propositions").
a curiously anachronistic decision, the Court today acknowledges
its historical disavowal of set formulae in almost the same
breath as it constructs a rigid per se takings
permanent physical occupation authorized by government is
a taking without regard to the public interests that it may
at 3171. To
sustain its rule against our recent precedents, the Court
erects a strained and untenable distinction between "temporary
physical invasions," whose constitutionality concededly
"is subject to a balancing process," and "permanent
physical occupations," which are "taking[s] without
regard to other factors that a court might ordinarily examine." Ante, at 3174.
my view, the Court's approach "reduces the constitutional
issue to a formalistic quibble" over whether property
has been "permanently occupied" or "temporarily
Sax, Takings and the Police Power, 74 Yale L.J. 36,
The Court's application of its formula to the facts
of this case vividly illustrates that its approach is potentially
dangerous as well as misguided.
Despite its concession that "States have broad
power to regulate ... the landlord-tenant relationship ...
without paying compensation for all economic injuries that
such regulation entails," ante, at 3178, the Court uses
its rule to undercut a carefully considered legislative judgment
concerning landlord-tenant relationships.
I therefore respectfully dissent.
examining the Court's new takings rule, it is worth reviewing
what was "taken"
in this case.
At issue are about 36 feet of cable one-half inch in
diameter and two 4"' x 4"' x 4"' metal boxes.
Jointly, the cable and boxes occupy only about one-eighth
of a cubic foot of space on the roof of appellant's Manhattan
When appellant purchased that building in 1971, the
"physical invasion" she now challenges had already
occurred. [FN2] Appellant
did not bring this action until about five years later, demanding
5% of appellee Teleprompter's gross revenues from her building,
and claiming that the operation of N.Y.Exec.Law § 828 (McKinney 444 Supp. 1981-1982) "took" her property.
The New York Supreme Court, the Appellate Division,
and the New York Court of Appeals all rejected that claim,
upholding § 828 as a valid exercise of the State's police
FN2. In January 1968, appellee Teleprompter
signed a 5-year installation agreement with the building's
previous owner in exchange for a flat fee of $50.
Appellee installed both the 30-foot main cable and
its 4- to 6-foot "crossover" extension in June 1970.
For two years after taking possession of the building
and the appurtenant equipment, appellant did not object to
the cable's presence. Indeed, despite numerous inspections, appellant had never
even noticed the equipment until Teleprompter first began
to provide cable television service to one of her tenants.
53 N.Y.2d 124, 134-135, 440 N.Y.S.2d 843, 847, 423
324 (1981). Nor did appellant thereafter ever specifically ask Teleprompter
to remove the components from her building.
App. 107, 108, 110. Although the Court alludes
to the presence of "two large silver boxes" on appellant's
roof, ante, at 3177, n. 16, the New York Court of Appeals'
opinion nowhere mentions them, nor are their dimensions stated
anywhere in the record.
Court of Appeals held that
State may proscribe a trespass action by landlords generally
against a cable TV company which places a cable and other
fixtures on the roof of any landlord's building, in order
to protect the right of the tenants of rental property, who
will ultimately have to pay any charge a landlord is permitted
to collect from the cable TV company, to obtain TV service
in their respective apartments."
53 N.Y.2d 124, 153, 440 N.Y.S.2d 843, 858, 423 N.E.2d
320, 335 (1981).
In so ruling,
the court applied the multifactor balancing test prescribed
by this Court's recent Takings Clause decisions.
Those decisions teach that takings questions should
be resolved through "essentially ad hoc, factual inquiries,"
Kaiser Aetna v. United States, 444 U.S. 164, 175, 100 S.Ct.
383, 390, 62 L.Ed.2d 332 (1979), into "such factors as
the character of the governmental action, its economic impact,
and its interference with reasonable investment-backed expectations." PruneYard Shopping Center v. Robins, 447 U.S. 74,
83, 100 S.Ct. 2035, 2042, 64 L.Ed.2d 741 (1980).
See 53 N.Y.2d, at 144-151, 440 N.Y.S.2d, at 853-858,
423 N.E.2d, at 330-334.
The Court of Appeals found, first, that
§ 828 represented a reasoned legislative effort to arbitrate
between the interests of tenants and landlords and to encourage
development of an important educational and communications
medium. [FN3] Id.,
143-145, 440 N.Y.S.2d, at 852-853, 423
N.E.2d, at 329-330.
Moreover, under PruneYard Shopping Center v. Robins,
447 U.S., at 83-84, 100 S.Ct., at 2042, the fact that § 828
authorized Teleprompter to make a minor physical intrusion
upon appellant's property was in no way determinative of the
takings question. 53
N.Y.2d, at 146-147, 440 N.Y.S.2d, at 854, 423 N.E.2d, at 331.
The court found that the state legislature had enacted § 828
to "prohibit gouging and arbitrary action" by "landlords
[who] in many instances have imposed extremely onerous fees
and conditions on cable access to their buildings."
53 N.Y.2d, at 141, 440 N.Y.S.2d, at 851, 423 N.E.2d,
at 328, citing testimony of Joseph C. Swidler, Chairman of
the Public Service
Commission, before the Joint Legislative Committee considering
the CATV bill. Given the growing importance of cable television,
the legislature decided that urban tenants' need for access
to that medium justified a minor intrusion upon the landlord's
interest, which consists entirely
of insisting that some negligible unoccupied space remain
tenant's interest clearly is more substantial, consisting
of a right to receive (and perhaps send) communications from
and to the outside world.
In the electronic age, the landlord should not be able
to preclude a tenant from obtaining CATV service (or to exact
a surcharge for allowing the service) any more than he could
preclude a tenant from receiving mail or telegrams directed
to him." Ibid.,
citing Regulation of Cable Television by the State of New
York, Report to the New York Public Service Commission by
Commissioner William K. Jones 207 (1970).
Section 828 carefully regulates the cable television company's
physical intrusion onto the landlord's property.
If the landlord requests, the company must conform
its installations "to such reasonable conditions as are
necessary to protect the safety, functioning and appearance
of the premises, and the convenience and well-being of other
N.Y.Exec.Law § 828(1)(a)(i) (McKinney Supp.1981-1982).
Furthermore, the company must "agree to indemnify
the landlord for any damage caused by the installation, operation
or removal of such facilities."
§ 828(1)(a)(iii). Finally, the statute authorizes the landlord to require
either "the cable television company or the tenant or
a combination thereof [to] bear the entire cost of the installation,
operation or removal" of any equipment.
Second, the court concluded that the statute's
economic impact on appellant was de minimis because § 828
did not affect the fair return on her property.
53 N.Y.2d, at 148-150, 440 N.Y.S.2d, at 855-856, 423
N.E.2d, at 332-333.
Third, the statute did not interfere with appellant's
reasonable investment-backed expectations.
Id., at 150-151, 440 N.Y.S.2d, at 856-857, 423 N.E.2d,
at 333-334. When
appellant purchased the building, she was unaware of the existence
of the cable.
See n. 2, supra.
Thus, she could not have invested in the building with
any reasonable expectation that the one- eighth cubic foot
of space occupied by the cable television installment would
53 N.Y.2d, at 155, 440 N.Y.S.2d, at 859, 423 N.E.2d,
Given that the New York Court of Appeals'
straightforward application of this Court's balancing test
yielded a finding of no taking, it becomes clear why the Court
now constructs a per se rule to reverse.
The Court can escape the result dictated by our recent
takings cases only by resorting to bygone precedents and arguing
that "permanent physical occupations" somehow differ
qualitatively from all other forms of government regulation.
The Court argues that a per se rule based
on "permanent physical occupation" is both historically
rooted, see ante, at 3171-3176, and jurisprudentially sound,
see ante, at 3176-3177. I disagree in both respects.
The 19th-century precedents relied on by the Court
lack any vitality outside the agrarian context in which they
were decided. [FN5]
But if, by chance, they 447 have any lingering vitality, then, in my
view, those cases stand for a constitutional rule that is
uniquely unsuited to the modern urban age.
Furthermore, I find logically untenable the Court's
assertion that § 828 must be analyzed under a per se rule
because it "effectively destroys" three of "the
most treasured strands in an owner's bundle of property rights,"
ante, at 3176.
FN5. The Court properly acknowledges that none
of our recent takings decisions have adopted a per se test
for either temporary physical
invasions or permanent physical occupations.
See ante, at 3174-3176, and 3176, n. 12.
While the Court relies on historical dicta to support
its per se rule, the only holdings it cites fall into two
number of cases involving flooding, ante, at 3171-3172, and
St. Louis v. Western Union Telegraph Co., 148 U.S. 92, 13
S.Ct. 485, 37 L.Ed. 380 (1893), cited ante, at 3172. In 1950,
the Court noted that the first line of cases stands for "the
principle that the destruction of privately owned land by
flooding is 'a taking' to the extent of the destruction caused,"
and that those rulings had already "been limited by later
decisions in some respects."
United States v. Kansas City Life Ins. Co., 339 U.S.
799, 809-810, 70 S.Ct. 885, 890-891, 94 L.Ed. 1277.
Even at the time of its decision, St. Louis v. Western
Union Telegraph Co. addressed only the question "[w]hether
the city has power to collect rental for the use of streets
and public places" when a private company seeks exclusive
use of land whose "use is common to all members of the
public, and ... [is] open equally to citizens of other States
with those of the State in which the street is situate."
148 U.S., at 98-99, 13 S.Ct., at 487-488.
On its face, that issue is distinct from the question
appellant may extract from Teleprompter a fee for the continuing
use of her roof space above and beyond the fee set by statute, namely, "any amount which the commission
shall, by regulation, determine to be reasonable."
N.Y.Exec.Law § 828(1)(b) (McKinney Supp.1982).
Court's recent Takings Clause decisions teach that nonphysical
government intrusions on private property, such as zoning
ordinances and other land-use restrictions, have become the
rule rather than the exception.
Modern government regulation exudes intangible "externalities"
that may diminish the value of private property far more than
minor physical touchings. Nevertheless, as the Court recognizes,
it has "often upheld substantial regulation of an owner's
use of his own property where deemed necessary to promote
the public interest." Ante, at 3171.
See, e.g., Agins v. City of Tiburon, 447 U.S. 255,
100 S.Ct. 2138, 65 L.Ed.2d 106 (1980);
Penn Central Transportation Co. v. New York City, 438
U.S. 104, 124-125, 98 S.Ct. 2646, 2659, 57 L.Ed.2d 631 (1978);
Village of Euclid v. Ambler Realty Co., 272 U.S. 365,
47 S.Ct. 114, 71 L.Ed. 303 (1926).
because the extent to which the government may injure private
interests now depends so little on whether or not it has authorized
a "physical contact," the Court has avoided per
se takings rules resting on outmoded distinctions between
physical and nonphysical intrusions.
As one commentator has observed, a takings rule based
on such a distinction is inherently suspect because "its
capacity to distinguish, even crudely, between significant
and insignificant losses is too puny to be taken seriously."
Michelman, Property, Utility, and Fairness:
Comments on the Ethical Foundations of "Just Compensation"
Law, 80 Harv.L.Rev. 1165, 1227 (1967).
the Court draws an even finer distinction today -- between
"temporary physical invasions" and "permanent
physical occupations." When the
government authorizes the latter type of intrusion, the Court
would find "a taking without regard to the public interests"
the regulation may serve.
Ante, at 3171.
Yet an examination of each of the three words in the
Court's "permanent physical occupation" formula
illustrates that the newly-created distinction is even less
substantial than the distinction between physical and nonphysical
intrusions that the Court already has rejected.
what does the Court mean by "permanent"?
Since all "temporary limitations on the right
to exclude" remain "subject to a more complex balancing
process to determine whether they are a taking," ante,
at 3176, n. 12, the Court presumably describes a government
intrusion that lasts forever.
But as the Court itself concedes, § 828 does not require
appellant to permit the cable installation forever, but only
"[s]o long as the property remains residential and a
CATV company wishes to retain the installation."
Ante, at 3178.
This is far from "permanent."
Court reaffirms that "States have broad power to regulate
housing conditions in general and the landlord-tenant relationship
in particular without paying compensation for all economic
injuries that such regulation entails." Ante, at 3178.
Thus, § 828 merely defines one of the many statutory
responsibilities that a New Yorker accepts when she enters
the rental business.
If appellant occupies her own building, or converts
it into a commercial property, she becomes perfectly free
to exclude Teleprompter from her one-eighth cubic foot of
roof space. But
once appellant chooses to use her property for rental purposes,
she must comply with all reasonable government statutes regulating
the landlord-tenant relationship. [FN6]
If § 828 authorizes a "permanent" occupation,
and thus works a taking "without
regard to the public interests that it may serve," then
all other New York statutes that require a landlord to make
physical attachments to his rental property also must constitute
takings, even if they serve indisputably valid public interests
in tenant protection and safety. [FN7]
FN6. In my view, the fact that § 828 incidentally
protects so‑ called "crossover" wires that
do not currently serve tenants, see ante,
at 3169, n. 2, does not affect § 828's fundamental
character as a piece of landlord-tenant legislation.
As the Court recognizes, ante, at 3169, crossovers
are crucial links in the cable "highway," and represent
the simplest and most economical way to provide service to
tenants in a group of buildings in close proximity.
Like the Court, I find "no constitutional difference
between a crossover and a noncrossover installation,"
ante, at 3178. Even assuming, arguendo, that the crossover extension
in this case works a taking, I would be prepared to hold that
the incremental governmental intrusion caused by that 4- to
6- foot wire, which occupies the cubic volume of a child's
building block, is a de minimis deprivation entitled to no
FN7. See, e.g., N.Y.Mult.Dwell.Law § 35 (McKinney
1974) (requiring entrance doors and lights);
§ 36 (windows and skylights for public halls and stairs); § 50-a (Supp.1982) (locks and intercommunication systems);
§ 50-c (lobby attendants);
§ 51-a (peepholes);
§ 51-b (elevator mirrors); § 53 (fire escapes);
§ 57 (bells and mail receptacles);
§ 67(3) (fire sprinklers).
See also Queenside Hills Realty Co. v. Saxl, 328 U.S.
80, 66 S.Ct. 850, 90 L.Ed. 1096 (1946) (upholding constitutionality
of New York fire sprinkler provision). These statutes specify
in far greater detail than § 828 what types of physical facilities
a New York landlord must provide his tenants and where he
must provide them.
See, e.g., N.Y.Mult.Dwell.Law § 75 (McKinney 1974)
(owners of multiple dwellings must provide "proper appliances
to receive and distribute an adequate supply of water,"
including "a proper sink with running water and with
a two-inch waste and trap");
§ 35 (owners of multiple dwellings with frontage exceeding
22 feet must provide "at least two lights, one at each
side of the entrance way, with an aggregate illumination of
one hundred fifty watts or equivalent illumination");
§ 50-a(2) (Supp.1981-1982) (owners of Class A multiple
dwellings must provide intercommunication system "located
at an automatic self-locking door giving public access to
the main entrance hall or lobby"). Apartment building
rooftops are not exempted.
See § 62 (landlords must place parapet walls and guardrails
on their roofs "three feet six inches or more in height
above the level of such area").
Court denies that its theory invalidates these statutes, because
they "do not require the landlord to suffer the physical
occupation of a portion of his building by a third party."
Ante, at 3179.
But surely this factor cannot be determinative, since
the Court simultaneously recognizes that temporary
450 invasions by third parties are
not subject to a per se rule. Nor can the qualitative difference
arise from the incidental fact that, under § 828, Teleprompter,
rather than appellant or her tenants, owns the cable installation.
Cf. ante, at 3178-3179, and n. 19.
If anything, § 828 leaves appellant better off than
do other housing statutes, since it ensures that her property
will not be damaged esthetically or physically, see n. 4,
supra, without burdening her with the cost of buying or maintaining
In any event,
under the Court's test, the "third party" problem
would remain even if appellant herself owned the cable.
So long as Teleprompter continuously passed its electronic
signal through the cable, a litigant could argue that the
second element of the Court's formula -- a "physical
touching" by a stranger -- was satisfied and that § 828
therefore worked a taking. [FN8]
Literally read, the Court's test opens the door to
endless metaphysical struggles over whether or not an individual's
property has been "physically" touched. It was precisely to avoid "permit[ting] technicalities
of form to dictate consequences of substance," United
States v. Central Eureka Mining Co., 357 U.S. 155, 181, 78
S.Ct. 1097, 1110, 2 L.Ed.2d 1228 (1958) (Harlan, J., dissenting),
that the Court abandoned a "physical contacts" test
in the first place.
FN8. Indeed, appellant's counsel made precisely
this claim at oral argument.
Urging the rule which the Court now adopts, appellant's
counsel suggested that a taking would result even if appellant
owned the cable. "[T]he precise location of the easement
[taken by Teleprompter changes] from the surface of the roof
to inside the wire....
[T]he wire itself is owned by the landlord, but the
cable company has the right to pass its signal through the
wire without compensation to the landlord, for its commercial
Tr. of Oral Arg. 15.
the Court's talismanic distinction between a continuous "occupation"
and a transient "invasion" finds no basis in either
economic logic or Takings Clause precedent.
In the landlord‑tenant context, the Court has
upheld against takings challenges rent control statutes permitting
"temporary" 451 physical invasions of considerable economic
e.g., Block v. Hirsh, 256 U.S. 135, 41 S.Ct. 458, 65 L.Ed.
865 (1921) (statute permitting tenants to remain in physical
possession of their apartments for two years after the termination
of their leases).
Moreover, precedents record numerous other "temporary"
officially authorized invasions by third parties that have
intruded into an owner's enjoyment of property far more deeply
than did Teleprompter's long-unnoticed cable. See, e.g., PruneYard Shopping Center v. Robins, 447 U.S.
74, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980) (leafletting and
demonstrating in busy shopping center);
Kaiser Aetna v. United States, 444 U.S. 164, 100 S.Ct.
383, 62 L.Ed.2d 332 (1979) (public easement of passage to
private pond); United
States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206
(1946) (noisy airplane flights over private land). While, under the Court's balancing test, some of these
"temporary invasions" have been found to be takings,
the Court has subjected none of them to the inflexible per
se rule now adapted to analyze the far less obtrusive "occupation"
at issue in the present case.
Cf. ante, at 3173, 3174-3176.
sum, history teaches that takings claims are properly evaluated
under a multifactor balancing test.
By directing that all "permanent physical occupations"
automatically are compensable, "without regard to whether
the action achieves an important public benefit or has only
minimal economic impact on the owner," ante, at 3175-3176,
the Court does not further equity so much as it encourages
litigants to manipulate their factual allegations to gain
the benefit of its per se rule.
Cf. n. 8, supra. I do not relish the prospect of distinguishing the inevitable
flow of certiorari petitions attempting to shoehorn insubstantial
takings claims into today's "set formula."
aside history, the Court also states that the permanent physical
occupation authorized by § 828 is a per se taking because
it uniquely impairs appellant's powers to dispose of, use,
and exclude others from, her property.
See ante, at
In fact, the Court's discussion nowhere
demonstrates how § 828 impairs these private rights in a manner
qualitatively different from other garden-variety landlord-tenant
Court first contends that the statute impairs appellant's
legal right to dispose of cable-occupied space by transfer
and sale. But
that claim dissolves after a moment's
If someone buys appellant's apartment building, but
does not use it for rental purposes, that person can have
the cable removed, and use the space as he wishes. In such a case, appellant's right to dispose of the space
is worth just as much as if § 828 did not exist.
if another landlord buys appellant's building for rental purposes,
§ 828 does not render the cable-occupied space valueless.
As a practical matter, the regulation ensures that
tenants living in the building will have access to cable television
for as long as that building is used for rental purposes,
and thereby likely increases both the building's resale value
and its attractiveness on the rental market. [FN9]
FN9. In her pretrial deposition, appellant
conceded not only that owners of other apartment buildings
thought that the cable's presence had enhanced the market
value of their buildings, App. 102-103, but also that her
own tenants would have been upset if the cable connection
had been removed. Id.,
at 107, 108, 110.
any event, § 828 differs little from the numerous other New
York statutory provisions that require landlords to install
physical facilities "permanently occupying" common
spaces in or on their buildings.
As the Court acknowledges, the States traditionally
-- and constitutionally -- have exercised their police power
"to require landlords to ... provide utility connections,
mailboxes, smoke detectors, fire extinguishers, and the like
in the common area of a building."
Ante, at 3179.
Like § 828, these provisions merely ensure tenants
access to services the legislature deems important, such as
water, electricity, natural light, telephones, intercommunication
systems, and mail service.
See n. 7, supra.
A landlord's dispositional rights are affected no more
when he sells a building to another
landlord subject to § 828, than when he sells that building
subject only to these other New York statutory provisions.
Court also suggests that § 828 unconstitutionally alters appellant's
right to control the use of her one-eighth cubic foot of roof
other New York multiple dwelling statutes not only oblige
landlords to surrender significantly larger portions of common
space for their tenants' use, but also compel the landlord
-- rather than the tenants or the private installers -- to
pay for and to maintain the equipment. For example, New York landlords are required by law to
provide and pay for mailboxes that occupy more than five times
the volume that Teleprompter's cable occupies on appellant's
Tr. of Oral Arg. 42-43, citing N.Y.Mult.Dwell.Law § 57 (McKinney
1974). If the
State constitutionally can insist that appellant make this
sacrifice so that her tenants may receive mail, it is hard
to understand why the State may not require her to surrender
less space, filled at another's expense, so that those same
tenants can receive television signals.
constitutional purposes, the relevant question cannot be solely
whether the State has interfered in some minimal way with
an owner's use of space on her building.
Any intelligible takings inquiry must also ask whether
the extent of the State's interference is so severe as to
constitute a compensable taking in light of the owner's alternative
uses for the property. [FN10] Appellant freely admitted that
she would have 454
had no other use for the cable-occupied
space, were Teleprompter's equipment not on her building.
See App. 97 (Deposition of Jean A. Loretto).
FN10. For this reason, the Court provides no
support for its per se rule by asserting that the State could
not require landlords, without compensation, "to permit
third parties to install swimming pools," ante, at 3176,
or vending and washing machines, ante, at 3178, n. 17, for
the convenience of tenants.
Presumably, these more intrusive government regulations
would create difficult takings problems even under our traditional
Depending on the character of the governmental action,
its economic impact, and the degree to which it interfered
with an owner's reasonable investment-backed expectations,
among other things, the Court's hypothetical examples might
or might not constitute takings.
These examples hardly prove, however, that a permanent
physical occupation that works a de minimis interference with
a private property interest is a taking per se.
The Court's third and final argument is
that § 828 has deprived appellant of her "power to exclude
the occupier from possession and use of the space" occupied
by the cable. Ante,
at 3176. This
argument has two flaws.
First, it unjustifiably assumes that appellant's tenants
have no countervailing property interest in permitting Teleprompter
to use that space. [FN11] Second, it suggests that the New York Legislature may not exercise
its police power to affect appellant's common-law right to
exclude Teleprompter even from one-eighth cubic foot of roof
this Court long ago recognized that new social circumstances
can justify legislative modification of a property owner's
common-law rights, without compensation, if the legislative
action serves sufficiently important public interests.
See Munn v. Illinois, 94 U.S. 113, 134, 24 L.Ed. 77
(1877) ("A person has no property, no vested interest,
in any rule of the common law....
Indeed, the great office of statutes is to remedy defects
in the common law as they are developed, and to adapt it to
the changes of time and circumstance"); United States
v. Causby, 328 U.S., at 260-261, 66 S.Ct., at 1065 (In the
modern world, "[c]ommon sense revolts at the idea"
that legislatures cannot alter common-law ownership rights).
FN11. It is far from clear that, under New
York law, appellant's tenants would lack all property interests
in the few square inches on the exterior of the building to
which Teleprompter's cable and hardware attach.
Under modern landlord-tenant law, a residential tenancy
is not merely a possessory interest in specified space, but
also a contract for
the provision of a package of services and facilities
necessary and appurtenant to that space.
See R. Schoshinski, American Law of Landlord and Tenant
§ 3:14 (1980). A modern urban tenant's leasehold often includes not
only contractual, but also statutory rights, including the
rights to an implied warranty of habitability, rent control,
and such services as the landlord is obliged by statute to
n. 7, supra.
the Court of Appeals recognized, § 828 merely deprives appellant
of a common-law trespass action against Teleprompter, but
only for as long as she uses her building for rental purposes,
and as long as Teleprompter maintains its equipment in compliance
with the statute.
Justice MARSHALL recently and most aptly observed:
claim in this case amounts to no less than a suggestion that
the common law of trespass is not subject to revision by the
State .... If
accepted, that claim would represent a return to the era of
Lochner v. New York, 198 U.S. 45 [25 S.Ct. 539, 49 L.Ed. 937]
(1905), when common-law rights were also found immune from
revision by State or Federal Government.
Such an approach would freeze the common law as it
has been constructed by the courts, perhaps at its 19th-century
state of development.
It would allow no room for change in response to changes
in circumstance. The
Due Process Clause does not require such a result."
PruneYard Shopping Center v. Robins, 447 U.S., at 93,
100 S.Ct., at 2047 (concurring opinion).
In the end, what troubles me most about
today's decision is that it represents an archaic judicial
response to a modern social problem.
Cable television is a new and growing, but somewhat
controversial, communications medium. See Brief for New York State Cable Television Association
as Amicus Curiae 6-7 (about 25% of American homes with televisions
-- approximately 20 million families -- currently subscribe
to cable television, with the penetration rate expected to
double by 1990).
The New York Legislature not only recognized, but also
responded to, this technological advance by enacting a statute
that sought carefully to balance the interests of all private
nn. 3 and 4, supra.
New York's courts in this litigation, with only one
jurist in dissent, unanimously upheld the constitutionality
of that considered legislative judgment.
This Court now reaches
back in time for a per se rule that disrupts that legislative
Like Justice Black, I believe that "the solution
of the problems precipitated by ... technological advances
and new ways of living cannot come about through the application
of rigid constitutional restraints formulated and enforced
by the courts."
United States v. Causby, 328 U.S., at 274, 66 S.Ct.,
at 1072 (dissenting opinion).
I would affirm the judgment and uphold the reasoning
of the New York Court of Appeals.
Happily, the Court leaves open the question whether § 828
provides landlords like appellant sufficient compensation
for their actual losses.
See ante, at 3179.
Since the State Cable Television Commission's regulations
permit higher than nominal awards if a landlord makes "a
special showing of greater damages," App. 52, the concurring
opinion in the New York Court of Appeals found that the statute
awards just compensation.
See 53 N.Y.2d, at 155, 440 N.Y.S.2d, at 859, 423 N.E.2d,
at 336 ("[I]t is obvious that a landlord who actually
incurs damage to his property or is restricted in the use
to which he might put that property will receive compensation
commensurate with the greater injury").
If, after the remand following today's decision, this
minor physical invasion is declared to be a taking deserving
little or no compensation, the net result will have been a
large expenditure of judicial resources on a constitutional
claim of little moment.