Green wood in the bundle of sticks: Fitting environmental ethics and ecology into real property law

But if a man seised of lands in fee by his deed granteth to another the profit of those lands, to have and to hold to him and his heires, and maketh livery secundum formam chartae, [according to the deed] the whole land itself doth passe; for what is the land but the profit thereof; for thereby vesture, herbage, trees, mines, and all whatsoever parcell of that land doth passe.

COKE, supra note 11, at 4b. This passage follows a declaration by Coke that: and is anciently called Fleth; but land builded is more worthy than other land, because it is for the habitation of man, and in that respect both the precedency to be determined in the first place in a pra;cipe as hereafter shall be said.... For as the heavens are the habitation of Almightie God, so the earth hath he appointed as the suburbs of heaven to be the habitation of man. Id. at 4a.

362 But see Del Monte Dunes, 95 F.3d at 1422. In this case, a jury in the trial court below construed the question of whether there was an economically viable use remaining in the subject property, a 190-unit residential development. "[W]e first turn to determining whether the existence of an economically viable use falls within the category of essentially factual questions, which may be submitted to a jury. We hold it does." Id. at 1428. The court found that "[t]he Supreme Court has suggested that where an owner is denied only some economically viable uses, a taking still may have occurred where government action has a sufficient economic impact and interferes with distinct investment-backed expectations." Id. at 1432. Interestingly, the court in Del Monte Dunes upheld the jury verdict of "no economically viable use" despite the fact that the owner had sold the property to the state of California for $800,000 more than it had paid for the site. Id. The court then attempted to rationalize this glaring inconsistency by declaring that "it is not difficult to conceive of a circumstance in which there are no economically viable uses for a property, but the property owner can sell it to the government at a higher price than what he paid for it." Id. The court then abruptly declared that "[a]lthough the value of the subject property is relevant to the economically viable use inquiry, our focus is primarily on use, not value." Del Monte Dunes, 95 F.3d at 1443. They then offered a "test: . . . where, as Del Monte argued in this case, government action relegates permissible uses of property to those consistent with leaving the property in its natural state (e.g., nature preserve or public space), and no competitive market exists for the property without the possibility of development, a taking may have occurred. Jed Rubenfeld, Usings, 102 YALE L.J. 1077, 1157 (1993) (discussing analogy between condemned land and land required to be left in its natural state)." Id. (other citations omitted).

363 Examples of activities that could be permissibly regulated, without being takings, are cited by the Lucas Court.

On this analysis, the owner of a lake bed, for example, would not be entitled to compensation when he is denied the requisite permit to engage in a landfilling operation that would have the effect of flooding others' land. Nor the corporate owner of a nuclear generating plant, when it is directed to remove all improvements from its land upon discovery that the plant sits astride an earthquake fault. Such regulatory action may well have the effect of eliminating the land's only economically productive use, but it does not proscribe a productive use that was previously permissible under relevant property and nuisance principles.