When the "character of the governmental action," is a permanent physical occupation of property, the United States Supreme Court has uniformly found a taking to the extent of the occupation, without regard to whether the action achieves an important public benefit or has only minimal economic impact on the owner.
Appellant purchased an apartment building in which the prior owner had allowed appellee cable company to install a cable on the building and to furnish cable television services to the tenants. Appellant filed a class action alleging that the installation was a trespass and a taking without just compensation. Reversing the state court, the Court held that the physical occupation of an owner's property authorized by the government was a "taking" of property. N.Y. Exec. Law § 828(1) (Supp. 1981-1982) provided that a landlord must permit a cable television company to install its cable facilities upon the landlord's property. The Court reversed the judgment and remanded the matter so that the state court could determine the appropriate amount of compensation due the landlady.
Was the New York law requiring landlords to allow cable television facilities on property, tantamount to a "taking" of property compensable under Fifth and Fourteenth Amendments?
The Court explained that to the extent the government permanently occupied physical property, it effectively destroyed the right of the owner to exclude or control that portion of her property. The Court noted that Constitutional history confirmed that this was a taking and recent cases did not question the rule. In addition, the purposes of the Takings Clause compelled retention. The Court concluded that the amount of compensation was a matter for the state court to determine on remand.