Section IX 11/29/2012 12 NN 1. Elements of Taking Garcia v. CA 102 SCRA 597 Facts: wala pa City of Government v.

. Judge Ericta 122 SCRA 759 Facts: Quezon City enacted an ordinance entitled ORDINANCE REGULATING THE ESTABLISHMENT, MAINTENANCE AND OPERATION OF PRIVATE MEMORIAL TYPE CEMETERY OR BURIAL GROUND WITHIN THE JURISDICTION OF QUEZON CITY AND PROVIDING PENALTIES FOR THE VIOLATION THEREOF. The law basically provides that at least six (6) percent of the total area of the memorial park cemetery shall be set aside for charity burial of deceased persons who are paupers and have been residents of Quezon City for at least 5 years prior to their death, to be determined by competent City Authorities. QC justified the law by invoking police power. Issue: Whether or not the ordinance is valid. Held: The SC held the law as an invalid exercise of police power. There is no reasonable relation between the setting aside of at least six (6) percent of the total area of all private cemeteries for charity burial grounds of deceased paupers and the promotion of health, morals, good order, safety, or the general welfare of the people. The ordinance is actually a taking without compensation of a certain area from a private cemetery to benefit paupers who are charges of the municipal corporation. Instead of building ormaintaining a public cemetery for this purpose, the city passes the burden to private cemeteries. US v. Causby 328 US 256 Facts. Respondents own 2.8 acres near an airport outside of Greensboro, North Carolina. Respondents property contained a house and a chicken farm. The end of one of the runways of the airport was 2,220 feet from Respondents property, and the glide path passed over the property at 83 feet, which is 67 feet above the house, 63 feet above the barn, and 18 feet above the highest tree. The use by the United States of this airport is pursuant to a lease beginning June 1, 1942, and ending June 30, 1942, with provisions for renewal until June 30, 1967, or six months after the end of the national emergency, whichever is earlier. The United States four motored bombers make loud noises when flying above the property, and have very bright lights. Respondents chicken farm production had to stop, because 150 chickens were killed by flying into walls from fright. In the Court of Claims, it was found that the United States had taken an easement over the property on June 1, 1942, and that the val ue of the property depreciation as the result of the easement was $2,000.00. The United States petitioned for certiorari, which was granted. Issue. Has the Respondents property been taken within the meaning of the Fifth Amendment? Held: Yes. But the case is remanded for a determination of the value of the easement and whether the easement was permanent or temporary. The court noted the common law doctrine of ownership of land extending to the sky above the land. However, the court notes that an act of Congress had given the United States exclusive national sovereignty over the air space. The court noted that common sense made the common law doctrine inapplicable. However, the court found that the common law doctrine did not control the present case. The United States had conceded in oral argument that if flights over the Respondents property rendered it uninhabitable then there would be a taking compensable under the Fifth Amendment.

The measure of the value of the property taken is the owners loss, not the takers gain. The airspace is a public highway. But it is obvious that if the landowner is to have the full enjoyment of his land, he must have exclusive control of the immediate reaches of the enveloping atmosphere. If this were not true then landowners could not build buildings, plant trees or run fences. The airspace, apart from the immediate reaches above the land, is part of the public domain. The court does not set the precise limits of the line of demarcation. Flights over private land are not a taking, unless, like here, they are so low and frequent as to be a direct and immediate interference with the enjoyment of the land. The Court of Claims must, upon remand, determine the value of the easement and whether it is a temporary or permanent easement.