United States Department of Transportation
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Abstract:The U.S. Constitution and the constitution of every state, except North Carolina, requires "just compensation" to be made for property taken by eminent domain. Courts both in Virginia and elsewhere have taken a very narrow view of this requirement where there is only indirect damage to property. Reformers, unhappy with the failure of government to pay for these damages, attempted to solve the problem by adding "damaging" provisions to their state constitutions. The reformers found, however, that their victory had again been whittled down by judicial interpretation. To be compensable today in most jurisdictions damage must be physical; it must affect the "corpus" of the property or "rights appurtenant thereto." Noise and similar environmental factors do not meet that qualification. As of July 1973, the lone exception to this generalization in highway cases is the State of Washington. The Dahlin case, decided in that state in 1971, held that substantial damage caused by highway noise alone was sufficient to require compensation under the constitution of that state. The Dahlin decision capped a series of cases which have extended the constitutional requirement for compensation in aircraft damage cases. Before the 1946 U.S. Supreme Court Causby decision, compensation was required only if the property was physically appropriated or its usefulness completely destroyed. it held that a landowner suffering "substantial" damage as a result of aircraft overflights directly over his property is entitled to be compensated under the Fifth Amendment of the U.S. Constitution. A series of cases followed in which the question of "substantiality" was at issue. In 1962 a further step was taken by the Supreme Court of Oregon in interpreting the state's constitution; it found compensation to be required even though the offending aircraft did not fly directly over the property. A similar decision by the State of Washington Supreme Court followed in 1964.Then came the Dahlin case in 1971. While the State of Washington is the only jurisdiction so far to apply the principle to highway cases, it appears quite probable that more state and federal courts will do so in the future. The liberalization in the airplane cases has been widely debated and discussed in the legal profession, generally with approval. Since it is difficult to justify why the same damage which would be compensable if inflicted by an airplane would not be compensable if inflicted by a busy highway it seems likely that the trend will be toward more liberal highway compensatory requirements.
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