美国财产法Chapter 13 Taking.docxVIP

Chapter 13 TakingsFoundation EraNoxious 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.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.A new doctrineThe 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 But the standard in this case has been superseded by more modern tests, like the Penn Central standard.Pennsylvania Coal Co. v. Mahon (1922)Facts: The deed between Coal Co and Mahon in 1878 provided that Coal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.Issue: whether the Kohler Act can be recognized as a takingRule: three factors test:Diminution of valuePublic interest/private nuisanceReciprocity of advantageReasoning:Diminution of value ( denominator problem)Majority: 100%, hugeDissent: values are relative, we should look at the land as a whole, not muchPublic interest/private nuisanceMajority: 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.Dissent: public nuisance, cause harm to the publicReciprocity of advantageMajority: no advantage to Coal companyDissent: 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.Points for d