navigational servitudes

In 1970, Teleprompter Manhattan CATV Corp. obtained a permit from New York City to operate a cable television system in Manhattan. It entered into an agreement with the prior owner of a five-story apartment building at 303 West 105th Street to install cables on the roof in exchange for a flat fee of $50 per year. The installation included a cable slightly less than one-half inch in diameter and approximately 30 feet in length running along the roof about 18 inches above the surface. It also included directional taps measuring approximately 4 inches by 4 inches by 4 inches on the front and rear of the roof. Two large silver boxes were placed along the roof cables. Additional cable was extended another 4 to 6 feet. All components were attached by screws or nails penetrating the masonry at approximately two-foot intervals. In 1971, Jean Loretto purchased the building. At the time of purchase the cable installation was already in place as part of a larger network serving adjacent buildings, though Loretto did not discover its existence until after she took possession. Two years later Teleprompter connected a noncrossover line by dropping a cable down the front of the building to serve Loretto's own tenants. In 1973 the New York Legislature enacted section 828 of the Executive Law, effective January 1, 1973, which prohibited landlords from interfering with cable television installations on their property, barred landlords from demanding payment from tenants for permitting service, and limited any payment from a cable company to an amount the State Commission on Cable Television determined to be reasonable; the Commission later set the presumptive fee at a one-time $1 payment. In 1976 Loretto filed a class action against Teleprompter in New York Supreme Court on behalf of all owners of real property in the state on which Teleprompter had placed cable components, alleging trespass and a taking without just compensation and seeking damages and injunctive relief; the City of New York, which had granted Teleprompter an exclusive franchise for parts of Manhattan, intervened as a defendant. The Supreme Court, Special Term, granted summary judgment to Teleprompter and the city. The Appellate Division affirmed without opinion. The New York Court of Appeals upheld the statute. The Supreme Court of the United States noted probable jurisdiction.

In 1986, petitioner David H. Lucas purchased two residential lots on the Isle of Palms in Charleston County, South Carolina, for $975,000. He intended to construct single-family homes on the parcels, which at the time were zoned for such use and required no building permit for development. No portion of the lots qualified as a critical area under then-existing coastal zone legislation. Subsequently, in 1988, the South Carolina Legislature enacted the Beachfront Management Act. The legislation established a baseline and prohibited construction of occupable improvements seaward of a line drawn 20 feet landward of that baseline, directly affecting Lucas's parcels by barring any permanent habitable structures. Lucas filed an action in the Court of Common Pleas alleging that the Act's restrictions effected a taking of his property without just compensation. Following a bench trial, the court determined that the prohibition rendered the lots valueless and ordered the state to pay just compensation in the amount of $1,232,387.50. The Supreme Court of South Carolina reversed the trial court's judgment. It accepted the legislature's findings that new construction threatened public resources and concluded that a regulation designed to prevent serious public harm could not constitute a taking. The United States Supreme Court granted certiorari to review the South Carolina Supreme Court's decision.

In the early 1960s, Kaiser Aetna's predecessor leased a 6,000-acre area including Kuapa Pond on the island of Oahu from the Bishop Estate for subdivision development known as Hawaii Kai. Kuapa Pond was a shallow lagoon covering 523 acres that extended approximately two miles inland from Maunalua Bay, was separated from the Pacific Ocean by a barrier beach, and had been used historically as a private fishpond under Hawaiian law following the 1848 Great Mahele land division. Kaiser Aetna dredged the pond to an average channel depth of six feet, constructed an eight-foot-deep channel through the barrier beach to connect it to the bay and ocean, erected retaining walls, built bridges, and eliminated the original sluice gates to create the Hawaii Kai Marina for pleasure boats. The Army Corps of Engineers issued a permit for the dredging and filling operations that expressly provided the marina would be a private facility not open to the general public. At the time of trial, a marina-style community of approximately 22,000 persons surrounded the pond, including 1,500 waterfront lot lessees who paid fees for maintenance and security, and Kaiser Aetna controlled access while generally prohibiting commercial use except for limited promotional vessels. In 1972 a dispute arose when the Corps asserted regulatory authority under the Rivers and Harbors Appropriation Act and claimed the pond had become navigable waters of the United States open to the public. The United States filed suit in the United States District Court for the District of Hawaii seeking a declaration of public access rights and an injunction requiring Kaiser Aetna to allow such access. The District Court found that Kuapa Pond had not been navigable prior to the improvements, held that the pond was subject to Corps regulation but that the Government lacked authority to open it to the public without compensation, and denied the requested injunction. The Court of Appeals for the Ninth Circuit reversed, holding that the marina was subject to the federal navigational servitude and that no compensation was required. The Supreme Court granted certiorari to consider whether the Government's assertion of a public right of access amounted to a taking of private property.

PruneYard Shopping Center is a privately owned shopping center in Campbell, California. It covers approximately 21 acres with 5 acres devoted to parking and 16 acres occupied by walkways, plazas, sidewalks, and buildings. These buildings contain more than 65 specialty shops, 10 restaurants, and a movie theater. The center is open to the public for the purpose of encouraging the patronizing of its commercial establishments. The center maintains a policy of not permitting any visitor or tenant to engage in any publicly expressive activity. This includes the circulation of petitions that is not directly related to its commercial purposes. The policy has been strictly enforced in a nondiscriminatory fashion by a security force. The center is owned by appellant Fred Sahadi. In December 1975, appellees who are high school students sought to solicit support for their opposition to a United Nations resolution against Zionism. On a Saturday afternoon they set up a card table in a corner of PruneYard's central courtyard. They distributed pamphlets and asked passersby to sign petitions that were to be sent to the President and Members of Congress. Their activity was peaceful and orderly and so far as the record indicates it was not objected to by PruneYard's patrons. Soon after the students had begun soliciting signatures a security guard informed them that they would have to leave because their activity violated PruneYard regulations. The guard suggested that they move to the public sidewalk at the PruneYard's perimeter. The students immediately left the premises and later filed this lawsuit in the California Superior Court of Santa Clara County. They sought to enjoin the shopping center owners from denying them access to the PruneYard for the purpose of circulating their petitions. The Superior Court held that the students were not entitled under either the Federal or California Constitution to exercise their asserted rights on the shopping center property. It concluded that there were adequate effective channels of communication available to them other than soliciting on the private property. The California Court of Appeal affirmed. The California Supreme Court reversed. It held that the California Constitution protects speech and petitioning reasonably exercised in shopping centers even when the centers are privately owned. It concluded that the students were entitled to conduct their activity on PruneYard property. The United States Supreme Court granted certiorari.