U.S. Supreme Court Loretto v. Teleprompter Manhattan CATV
Corp., 458
U.S. 419 (1982) Loretto v. Teleprompter Manhattan
CATV Corp. No. 81-244 Argued March 30, 1982 Decided June 30, 1982 458
U.S. 419 APPEAL FROM THE COURT OF APPEALS OF
NEW YORK Syllabus 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 reasonable.
Pursuant 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 property. Held: 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 Amendment. Pp. 458 U. S.
425 -441.

															(a) When the "character of the governmental action," Penn
Central Transportation Co. v. New York City, 438 U.
S. 104 , 438 U. S. 124 ,
is a permanent physical occupation of real property, there is a
taking to the extent Page 458 U. S. 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. 458 U.S.
426 -435.

															(b) 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 occupied. Pp. 458 U. S.
435 -438.

															(c) 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 exterior wall. 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. 458 U. S.
438 -440.

															53 N.Y.2d 124, 423 N.E.2d 320, reversed and remanded.

															MARSHALL, J., delivered the opinion of the Court, in which
BURGER, C.J., and POWELL, REHNQUIST, STEVENS, and O'CONNOR, JJ.,
joined. BLACKMUN, J., filed a dissenting opinion, in which BRENNAN
and WHITE, JJ., joined, post, p. 458 U. S.
442 . Page 458 U. S. 421 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,
423 N.E.2d 320 (1981). Because we conclude that such a physical
occupation of property is a taking, we reverse. I 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) [ Footnote 1 ] permission to install a
cable on the building and the exclusive privilege of furnishing
cable Page 458 U. S. 422 television (CATV) services to the tenants. The New York Court of
Appeals described the installation as follows:

															"On 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, 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.
[ Footnote 2 ] 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. Page 458 U. S. 423 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 reasonable." [ Footnote 3 ] 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 Page 458 U. S. 424 is the normal fee to which a landlord is entitled. In 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.

															Appellant 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.
[ Footnote 4 ] 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 App.Div.2d 849, 422 N.Y.S.2d 550 (1979).

															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 Page 458 U. S. 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 investment-backed expectations.
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.

															In 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 (1981). II The 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, 423 N.E.2d at 329, and
thus is within the State's police power. 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 Page 458 U. S. 426 Co. v. New York City, 438 U. S. 104 , 438 U. S.
127 -128 (1978); Delaware, L. & W. R. Co. v.
Morristown, 276 U. S. 182 , 276 U. S. 193 (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. A In 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 438 U. S. 124 .
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 action. A
'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
good." Ibid. (citation omitted).

															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. Page 458 U. S. 427 When faced with a constitutional challenge to a permanent
physical occupation of real property, this Court has invariably
found a taking. [ Footnote 5 ] As
early as 1872, in Pumpelly v. Green Bay
Co. , 13 Wall. 166, 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
Constitution." Id. at 80 U. S. 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 (1879), the Court held that the city's
construction Page 458 U. S. 428 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 99 U. S.
642 .

															Since 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 , 188 U. S.
468 -470 (1903); Bedford v. United States, 192 U. S. 217 , 192 U. S. 225 (1904); United States v. Cress, 243 U.
S. 316 , 243 U. S.
327 -328 (1917); Sanguinetti v. United States, 264 U. S. 146 , 264 U. S. 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 , 339 U. S.
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.
Louis could exact reasonable compensation for a telegraph company's
placement of telegraph poles on the city's public streets. The
Court reasoned:

															"The 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 Page 458 U. S. 429 thereof are temporary and shifting. 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 148 U. S. 98 -99, 148 U. S.
101 -102 (emphasis added). [ Footnote 6 ]

															Similarly, in Western Union Telegraph Co. v. Pennsylvania R.
Co., 195 U. S. 540 (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 Page 458 U. S. 430 the invasion of the telephone lines would be a compensable
taking. Id. at 195 U. S. 570 (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 (1922). See generally 2 J. Sackman, Nichols' Law of
Eminent Domain § 6.21 (rev. 3d ed.1980). [ Footnote 7 ]

															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 (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 taking:

															"If, 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 it." Id. at 328 U. S. 261 (footnote omitted). Page 458 U. S. 431 As the Court further explained,

															"We 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 land.
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 328 U. S.
264 -265. The Court concluded that the damages to the
respondents "were not merely consequential. They were the product
of a direct invasion of respondents' domain." Id. at 328 U. S.
265 -266. See also Griggs v. Allegheny County, 369 U. S. 84 (1962).

															Two wartime takings cases are also instructive. In United
States v. Pewee Coal Co., 341 U. S. 114 (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 341 U. S. 116 (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 (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 357 U. S. 181 ,
the Court reasoned that

															"the Government did not occupy, Page 458 U. S. 432 use, or in any manner take physical possession of the gold mines
or of the equipment connected with them." Id. at 357 U. S.
165 -166. The Court concluded that the temporary though
severe restriction on use of the mines was justified by the
exigency of war. [ Footnote 8 ] Cf. YMCA v. United States, 395 U. S.
85 , 395 U. S. 92 (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").

															Although 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. Penn 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 438 U. S. 124 .
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. [ Footnote
9 ] Page 458 U. S. 433 In Kaiser Aetna v. United States, 444 U.
S. 164 (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 water. The
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 444 U. S. 176 .
The Court explained:

															"This 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 , 328 U. S. 265 (1946); Portsmouth Co. v. United States, 260 U. S.
327 (1922)." Id. at 444 U. S. 180 (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. [ Footnote 10 ] Page 458 U. S. 434 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 (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 public. The 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 447 U. S. 84 .
[ Footnote 11 ] In short, when the "character of the governmental action," Penn Central, 438 U.S. at 438 U. S. 124 ,
is a permanent physical occupation of property, our cases uniformly
have found a taking to the extent of the occupation, without regard
to Page 458 U. S. 435 whether the action achieves an important public benefit or has
only minimal economic impact on the owner. B 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 interests. To borrow a metaphor, cf. Andrus v. Allard, 444 U. S. 51 , 444 U. S. 65 66
(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 strand.

															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 , 323 U. S. 378 (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. [ Footnote 12 ] See Kaiser Aetna, Page 458 U. S. 436 444 U.S. at 444 U. S.
179 -180; see 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 444 U. S. 66 , 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.

															Moreover, an owner suffers a special kind of injury when a
stranger directly invades and occupies the owner's property. As 458 U. S. 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 the invasion. See n 19, infra. The traditional rule also avoids otherwise difficult linedrawing
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. [ Footnote 13 ] Page 458 U. S. 437 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 installations. [ Footnote 14 ]

															Finally, 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. [ Footnote 15 ] For that reason,
moreover, there is Page 458 U. S. 438 less need to consider the extent of the occupation in
determining whether there is a taking in the first instance. C Teleprompter's 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. [ Footnote
16 ]

															In 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 property. Accordingly, each
type of installation is a taking.

															Appellees 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 Page 458 U. S. 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 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. [ Footnote 17 ]

															Teleprompter 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. [ Footnote 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 , 449 U. S. 164 (1980) ("a State, by ipse dixit, may not transform private
property into public property without compensation"). Page 458 U. S. 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 relationships. 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 entails. See, e.g.,
Heart of Atlanta Motel, Inc. v. United States, 379 U.
S. 241 (1964) (discrimination in places of public
accommodation); Queenside Hills Realty Co. v. Saxl, 328 U. S. 80 (1946)
(fire regulation); Bowles v. Willingham, 321 U.
S. 503 (1944) (rent control); Home Building &
Loan Assn. v. Blaisdell, 290 U. S. 398 (1934) (mortgage moratorium); Edgar A. Levy Leasing Co. v.
Siegel, 258 U. S. 242 (1922) (emergency housing law); Block v. Hirsh, 256 U. S. 135 (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 activity. See Penn Central
Transportation Co. v. New York City, 438 U.
S. 104 (1978). [ Footnote 19 ] Page 458 U. S. 441 III Our 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.

															Furthermore, 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. [ Footnote
20 ] Page 458 U. S. 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. It is so ordered. [ Footnote 1 ]

															Teleprompter Manhattan CATV was formerly a subsidiary, and is
now a division, of Teleprompter Corp.

															[ Footnote 2 ]

															The Court of Appeals defined a "crossover" more comprehensively
as occurring:

															"[W]hen (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, 423 N.E.2d at 323, n. 6.

															[ Footnote 3 ]

															New York Exec. Law § 828 (McKinney Supp.1981-1982) provides in
part:

															"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 wellbeing 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; and"

															"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; or"

															"c. discriminate in rental charges, or otherwise, between
tenants who receive cable television service and those who do
not."

															[ Footnote 4 ]

															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 stipulation.

															[ Footnote 5 ]

															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,
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
(1972); Dunham, 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).

															[ Footnote 6 ]

															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 , 195 U. S.
566 -567 (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 148 U. S.
101 .

															[ Footnote 7 ]

															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).

															[ Footnote 8 ]

															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 357 U. S. 181 , 357 U. S.
183 -184.

															[ Footnote 9 ]

															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 438 U. S. 124 ,
and argue that a similar invasion by a private party should be
treated differently. We disagree. 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., 80 U. S. Green Bay
Co., 13 Wall. 166 (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 438 U. S. 124 , 438 U. S.
128 .

															[ Footnote 10 ] See also Andrus v. Allard, 444 U. S.
51 (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 444 U. S.
65 -66.

															[ Footnote 11 ]

															Teleprompter's reliance on labor cases requiring companies to
permit access to union organizers, see, e.g., Hudgens v.
NLRB, 424 U. S. 507 (1976); Central Hardware Co. v. NLRB, 407 U.
S. 539 (1972); NLRB v. Babcock & Wilcox
Co., 351 U. S. 105 (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 407 U. S.
545 .

															[ Footnote 12 ]

															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 (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. Post at 458 U. S. 448 .
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.

															[ Footnote 13 ]

															In United States v. Causby, 328 U.
S. 256 (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 328 U. S. 265 ,
n. 10, quoting Butler v. Frontier Telephone Co., supra, at
491-492, 79 N.E. 718.

															[ Footnote 14 ]

															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.

															[ Footnote 15 ]

															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 unoccupied." 53 N.Y.2d at 141, 423 N.E.2d
at 328 (emphasis omitted). The State Cable Commission referred to
the same testimony in establishing a $1 presumptive award.
Statement of General Policy, App. 48.

															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 458 U. S. 452 ,
and that appellant might have no alternative use for the
cable-occupied space, post at 458 U. S.
453 -454 -- 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. App.
100.

															[ Footnote 16 ]

															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 328 U. S.
264 .

															The dissent asserts that a taking of about one-eighth of a cubic
foot of space is not of constitutional significance. Post at 458 U. S. 443 .
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
feet. In 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 a breadbox.

															[ Footnote 17 ]

															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.

															[ Footnote 18 ]

															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.

															[ Footnote 19 ]

															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 458 U. S. 450 ;
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 installation. 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 burden.

															[ Footnote 20 ]

															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.

															JUSTICE BLACKMUN, with whom JUSTICE BRENNAN and JUSTICE WHITE
join, dissenting.

															If 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 , 369 U. S. 594 (1962). [ Footnote 2/1 ]

															In 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 rule:
"a permanent physical occupation authorized by government is a
taking without regard to the public interests that it may serve." Ante at 458 U.S.
426 . 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 458 U. S.
432 .

															In my view, the Court's approach "reduces the constitutional
issue to a formalistic quibble" over whether property has been
"permanently occupied" or "temporarily invaded." Sax, Takings and
the Police Power, 74 Yale L.J. 36, 37 Page 458 U. S. 443 (1964). 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 458 U. S. 440 ,
the Court uses its rule to undercut a carefully considered
legislative judgment concerning landlord-tenant relationships. I
therefore respectfully dissent. I Before 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
apartment building. When appellant purchased that building in 1971,
the "physical invasion" she now challenges had already occurred.
[ Footnote 2/2 ] 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 Page 458 U. S. 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 power.

															The Court of Appeals held that

															"the 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, 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 , 444 U. S. 175 (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 , 447 U. S. 83 (1980). See 53 N.Y.2d at 144-151, 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. [ Footnote 2/3 ] Id. at Page 458 U. S. 445 143-145, 423 N.E.2d at 329-330. Moreover, under PruneYard
Shopping Center v. Robins, 447 U.S. at 447 U. S. 83 -84,
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, 423
N.E.2d at 331. [ Footnote 2/4 ]

															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, 423 N.E.2d
at 332-333. Third, the statute did not interfere with appellant's
reasonable investment-backed expectations. Id. at 150-151,
423 N.E.2d at 333-334. When appellant purchased the building, she
was unaware of the existence of the cable. See 458
U.S. 419 fn2/2|>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 become income-productive. 53 N.Y.2d at 155, 423
N.E.2d at 336. Page 458 U. S. 446 II 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 458 U.S. 426 -435, and
jurisprudentially sound, see ante at 458 U. S.
435 -438. 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. [ Footnote 2/5 ] But if, by chance, they Page 458 U. S. 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 458 U. S.
435 . A The 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 458 U.S. 426 . See,
e.g., Agins v. City of Tiburon, 447 U.
S. 255 (1980); Penn Central Transportation Co. v.
New York City, 438 U. S. 104 , 438 U. S.
124 -125 (1978); Village of Euclid v. Ambler Realty
Co., 272 U. S. 365 (1926).

															Precisely 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).

															Surprisingly, the Court draws an even finer distinction today --
between "temporary physical invasions" and "permanent Page 458 U. S. 448 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 458 U.S. 426 . 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.

															First, 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 458 U. S. 435 ,
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 458 U. S. 439 .
This is far from "permanent."

															The 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 458 U. S. 440 .
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. [ Footnote 2/6 ] If § 828 authorizes a "permanent"
occupation, Page 458 U. S. 449 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. [ Footnote 2/7 ]

															The 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 458 U. S. 440 .
But surely this factor cannot be determinative, since the Court
simultaneously recognizes that temporary Page 458 U. S. 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 458 U. S. 440 ,
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 aesthetically or physically, see 458
U.S. 419 fn2/4|>n. 4, supra, without burdening her
with the cost of buying or maintaining the cable.

															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. [ Footnote 2/8 ] 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 , 357 U. S. 181 (1958) (Harlan, J., dissenting), that the Court abandoned a
"physical contacts" test in the first place.

															Third, 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" Page 458 U. S. 451 physical invasions of considerable economic magnitude. See,
e.g., Block v. Hirsh, 256 U. S. 135 (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 (1980)
(leafletting and demonstrating in busy shopping center); Kaiser
Aetna v. United States, 444 U. S. 164 (1979) (public easement of passage to private pond); United
States v. Causby, 328 U. S. 256 (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 458 U. S.
430 -431, 458 U. S.
432 -435.

															In 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 458 U. S.
434 -435, 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. 458
U.S. 419 fn2/8|>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." B Setting 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 Page 458 U. S. 452 458 U. S.
435 -438. 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 legislation.

															The 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 reflection. 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.

															Even 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. [ Footnote
2/9 ]

															In 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 458 U. S. 440 .
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 458
U.S. 419 fn2/7|>n. 7, supra. A landlord's
dispositional rights are affected no more adversely Page 458 U. S. 453 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.

															The Court also suggests that § 828 unconstitutionally alters
appellant's right to control the use of her one-eighth
cubic foot of roof space. But 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 building. See Tr. of Oral Arg. 443, 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.

															For 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.
[ Footnote 2/10 ] Appellant freely
admitted that she would have Page 458 U. S. 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).

															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 458 U. S. 435 .
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. [ Footnote 2/11 ] 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 space. But 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 , 94 U. S. 134 (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 328 U. S.
260 -261 (In the modern world, "[c]ommon sense revolts at
the idea" that legislatures cannot alter common law ownership
rights). Page 458 U. S. 455 As 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:

															"[Appellant's] 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 (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 447 U. S. 93 (concurring opinion). III 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 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 parties. See nn. 458
U.S. 419 fn2/3|>3 and 458
U.S. 419 fn2/4|>4, supra. New York's courts in this
litigation, with only one jurist in dissent, unanimously upheld the
constitutionality of that considered legislative judgment. Page 458 U. S. 456 This Court now reaches back in time for a per se rule
that disrupts that legislative determination. [ Footnote 2/12 ] 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 328 U. S. 274 (dissenting opinion). I would affirm the judgment and uphold the
reasoning of the New York Court of Appeals.

															[ Footnote 2/1 ] See Kaiser Aetna v. United States, 444 U.
S. 164 , 444 U. S. 175 (1979); Andrus v. Allard, 444 U. S.
51 , 444 U. S. 65 (1979) ("There is no abstract or fixed point at which judicial
intervention under the Takings Clause becomes appropriate"); Penn Central Transportation Co. v. New York City, 438 U. S. 104 , 438 U. S. 124 (1978); United States v. Caltex, Inc., 344 U.
S. 149 , 344 U. S. 156 (1952) ("No rigid rules can be laid down to distinguish compensable
losses from noncompensable losses"); Pennsylvania Coal Co. v.
Mahon, 260 U. S. 393 , 260 U. S. 416 (1922) (a takings question "is a question of degree -- and
therefore cannot be disposed of by general propositions").

															[ Footnote 2/2 ]

															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, 423 N.E.2d 320, 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 458 U. S. 438 ,
n. 16, the New York Court of Appeals' opinion nowhere mentions
them, nor are their dimensions stated anywhere in the record.

															[ Footnote 2/3 ]

															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, 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 unoccupied. The 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." Id., 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).

															[ Footnote 2/4 ]

															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 wellbeing of other tenants."

															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. §
828(1)(a)(ii).

															[ Footnote 2/5 ]

															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 458 U. S.
432 -435, and 435435, n. 12. While the Court relies on
historical dicta to support its per se rule, the only
holdings it cites fall into two categories: a number of cases
involving flooding, ante at 458 U. S.
427 -428, and St. Louis v. Western Union Telegraph
Co., 148 U. S. 92 (1893), cited ante at 458 U. S.
428 .

															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 , 339 U. S.
809 -810. 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 148 U. S. 98 -99.
On its face, that issue is distinct from the question here: whether
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).

															[ Footnote 2/6 ]

															In my view, the fact that § 828 incidentally protects so-called
"crossover" wires that do not currently serve tenants, see
ante at 458 U. S. 422 ,
n. 2, does not affect § 828's fundamental character as a piece of
landlord-tenant legislation. As the Court recognizes, ante at 458 U. S. 422 ,
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 458 U. S. 438 .
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
compensation.

															[ Footnote 2/7 ] 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 (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").

															[ Footnote 2/8 ]

															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 benefit."

															Tr. of Oral Arg. 15.

															[ Footnote 2/9 ]

															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.

															[ Footnote 2/10 ]

															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 458 U. S. 436 ,
or vending and washing machines, ante at 458 U. S. 439 ,
n. 17, for the convenience of tenants. Presumably, these more
intrusive government regulations would create difficult takings
problems even under our traditional balancing approach. 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. [ Footnote 2/11 ]

															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 provide. Cf. n 7, supra. [ Footnote 2/12 ]

															Happily, the Court leaves open the question whether § 828
provides landlords like appellant sufficient compensation for their
actual losses. See ante at 458 U. S. 441 .
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, 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.