Ownership in place: owner of mineral rights owner right to serach, develope, and produce––in addition, has a possessory right to the min in place beneath the owner's tract (Tex., Colo. NM, Mich., ND)
Nonownership: Profit a prendre: No ownership (possessory right) in substances themselves, only a right to develop them
NB: The effect of both theories is that the rights are proeprty, no contract (that is: conveyances, not Ks)
Ownership in place, define
Owner of mineral rights owns right to search, develop, and produce––in addition, has a possessory right to the min in place beneath tract (Tex., Colo., NM, Mich., ND)
Profit a prendre, defined
No ownership in substances themselves, only a right to develop them
Mineral owning and leasing basics
Assumer minerals are severed (original --> current owner --> lessee)
Conveyance or assignment
Mineras are conveyed, leases are signed
Surface destruction test
In conflicts between surface owners and mineral owners, use test to determine who owns the minerals
NB: Some jx. say that surface mining must be the only reasonable method of obtaining them inerals (rather than any reasonable method that destroys the land)
NB: Often, in a conveyance of "all the ogm in and under that may be produced" the surface owner is said to own the minerals that must be acquired through strip mining
"Surface minerals" v. "Deep minerals"
Surface owners owns the surface minerals (in many cases), ogm owner owns the deep minerals
Importance of time of conveyance
Matters in determining contract intent (e.g., strip mining wasn't around for a long time, so it could affect Ks regarding near-surface minerals
Inequality resultant from surface destruction test
Farmer A and B. A has no near surface lignite. B does. A's grantee gets all lignite, B's grantee does not.
Surface Destruction Rule
"Minerals" does not include substances that are remoed by methods that will consumer or destroy the surface estate
Common Meaning Rule
"Minerals" includes all substance w/in the ordinary and natural meaning of the word at the time of the severance, whether or not their presence or value are known
Manner of Enjoyment rule
"Minerals" includes all substances valuable in themselves apart from the soil (Seen in somes states other than Texas)
Ejusdem Generis rule
"Minerals," when use w/ spcifically-IDd substance, means other substances of like kind
Texas Surface Destruction TEst
A substance is not a "mineral" if: Substantial quantities lie at or near the surface (200ft?) so that one of the reasonabe methods of its removal as of the date the insrument is decided by the court would be by strip or open pit mining.
If a substance is not a mineral, surface owner owns it at whatever depth it's found
Reformation (of deed)
Seeking the court to change a deed to remedy a mutual mistake
Reed II––Minerals near surface holding
If deposit lies near surface, the substance won't be granted or retained as a mineral if it is shown that any reasonable method of production would destroy/deplete the surface
Reed II––Date of determining "reasonable method" of removing minerals
Date of the opinion
Reed II––Effect of portion of minerals at "the surface"
If a portion of the mineral is at the surface, it belongs to surface owners (up to 200 ft)
Coal extraction methods––Surface
Surface:Mountaintop (take off mountain top, fill in lower area next to it w/ "valley fill")
Contour ("contour bench" made at one level (like a topo map) al the way around the mountain)
Auger (cut into the side fo the mountain)
Area (dragline across prospective horizon)
Open pit (seam too thick to replace, leaves pit)
Coal extraction methods––Deep or underground
Drift: horizontal shaft
Slope: sub-horizontal shaft
Shaft: vertical shaft
Ordinary and natural meaning test
**Good exam quesiton**
Substance will be a mineral if it was generally regarded as a mineral:
1. By the community;
2. At the time of severance
- If mineral is expressly stated: No recovery for reasonable, non-negligent use of the surface
- If mienral is not expressly stated: Recovery of damages by surface owner, whether negligent or not
Texas Three-Step "Minerals" analyssi
1. Is intent clear from the 4 corners? Yes, instrument controls. No...
2. Any substance previously held as a matter of law to be "surface" belongs to the surface owner (nine matter of law surface minerals)
3. If not in the nine:
- Pre June 8, 1983 severance: Surface destruction test
- Post June 8, 1983 severance: ordinary and natural meaning rule
Uranium––surface or mineral estate
Nine matter of law minerals in Texas
1. Building stone
4. Surface shale
8. Near surface lignite
Multiple owners and co-development rights
1. Estate can be separated
2. Reasonable surface access as needed for development (correlative rights)
3. Does not need to be expresed in deed or lease
Pour space reversion
Pour space reverts back to surface owner after mineral owner is finished
Pour space reversion: Texas Exception
If pour space is w/in salt dome, pour space is mineral owner's
Trespass quare clausum frigit v. trespss on the case: Strict liability if proven
Bad v. Good Faith Trespass
Bad faith: market val of min. w/o deduction for production costs
Good faith: market val of min. w/ production costs deducted
Intent is key: Difference is usually a question of law
Skillful scrivener canon of construction
If author is astute in one portion and changes wording in a second portion, the second portion means something different
Reservations canon of construction
Reservations are strictly construed against grantor
Two antecedents before "said land' canon of construction
When there are two or more antecedents before a "said land" clause, "that" speaks to the closes
High water mark viz "top of bank"
The "top of bank" is the lower level mark, not the high water mark
"1/2 of my interest" and
"A one half interset"
"1/2 of what I own" vs.
"1/2 of the whole"
Fiduciary duty of executive (Later modified in Tex.)
Grantee who gave the lease is the "executive right holder; he makes the lease for both parties and splits money down the middle
"I reserve 1/2 of the ogm in and under the land described"
"I reserve 1/2 of the ogm in and under the land conveyed"
"I have 50% undivided mineral interst in 100% of the land described."
If whole land being conveyed, no prob., you have 50%, but if less, your interest is lessened, e.g., 1/2 of land conveyed = 1/4 interest in entire land
Prospecting and trespassing
No physical entrance to one's land by using thumpers, etc., but shooting acress unpermitted land is interference w/ a prospective advantage and is possibly unlawful apprpriation of a trade secret (seismic; setting off a charge off premises and seeing what is on premises)
Remedy for loss of prospective value (w/ regard to seismic trespass)
Assumpsit. Sue for what you could have gotten had trespass not placed them in a better position.
Implied surface easement test
Reservatoin of minerals may get implied surface easment, if at time of conveyance:
1. Such a necessity exists in the particular case to develop the minerals; and
2. Such an easement would not conflict w/ the intended future uses of the whole property bein conveyed
NB: Tex. doesn't care about element 2, Tex. has accommodation doctrine
Rule of Support
Old law: Canonly take those min's which will not require injury to the surface to get, unless K or law says so
Flying Diamond Oil Co rule
A mineral owner has an implied easement of ingres/egress over the surface owner of the land if "reasonable necessary" in a case where the mineral rights owner contracted for broad surface rights in order to facilitate exploration and production of the minerals
Texas: Only from permitted tract
WV: Mineral owner has right to "Reasonable enter"
Williams and Meyers: If ingress/egress rights are not stipulated, they will be implied
Reason for leasing minerals
Mineral owners are usu. private and can't mine minerals themselves; thus, they K out in return for royalty, bonus, or other benefits
Types of lease-interpretations
1. Reformation v. finding a meaning for every word
2. Parol ev. /intent v. 4 corners
3. SoF: use to avoid K application; must be plead
Texas: Every word has a meaning/four corners state
Type of property of lease
Tex: RP interest
Memo of Lease
Filed on public record to give notice of encumbrance, but not to give specifics of lease
Who drafts leases? Why does it matter?
Lesses; cts interpret ambiguities against the lessee's interest; source of implied Ks
Nature of Lease
1. Conveyance and K
2. Option, not obligation to develop
3. Right to maintain development in all coal, etc.
4. BUT, more like a deed than a lease
5. States classify differently
Different classifications of leases across states
Tex: Fee simple determinable in the minerals
OK: Prefit a prendre subject ot equitable determination
KS: License that may become irrevocable
Many others: Uncertain or inconsistent
Lease: K and Conveyance, more like a deed than a lease. Why?
1. Right to take substances as well as use the land
2. Lessee's rights could be perpetual
3. Lessor and lessee share the land
Mining questions analysis method
1. Is the estate bifurcated?
2. Does the mineral developer need permission from the surface owner to develope? (e.g. strip miing)
3. What permissions/permits are needed from gov't authorities?
NB: Generaly, mineral estate is said to be dominant
Original land conveyance from the gov't. Sometimes must go to look at these to see if someone granted a right they didn't have (e.g., right to strip mine)
Moving coal thru someone's land, breaking the plane, and up thru your land
A destruction or material alteration or deterioration of the freehold, or of the improvements forming a meterial part thereof by any person rightfully in possession, but who has not the fee fee title or the full estate (e.g., covenant)
Are covenants liable for waste?
Not at old common law, but has been changed by statute
Material injury, continuing, no other adequate remedy at law
1. Majority: One co-tenant can develop, but must acct to the nonconsenting co-tenant(s) for gross profits
- Cost of production may be deducted (unlike royalty)
2. If development is not possible, seek partition (by law or ct.; sell all interests and split cash OR you get portion of real property)
Gross profits owner vs. royalty owner
- 15% owners get 15% of gross profits (production deducted); first mine car grants no money
- 1% royalty owner does not have production costs deducted; first mine car = 1% profits made on coal
Life tenant/remainderman issues
1. Leasing & development (both must approve development unless creating instrument says otherwise)
2. Division of income (as creating instrument dictates)
Where property is bein developed for minerals or isunder lease for mineral development when LE is created, then all benefits go to LT
NB: Based on intention of creator; can be changed by conveyance; doesn't generally allow LR to lease unilaterally if prior lease htat's covered by open mine doctrine expires due to non-development
Division of income between LT and remainderman
1. As creating instrument specifies; otherwise
2. Delay rentals and stoppage royalties go to LT; bonus goes to Remainderman in an account as corpus; LT gets income from bonus during LT's life
NB: Special rules for trust:
As trust specifies;
As trust law specifies
Grant or conveyance
"So long as minerals are being mined"
Implied covenant to develop
Present in every lease––mining leases are made for long terms, but cannot be thought that lessor intended that there could be no development w/in a reasonable time and no recompense
NB: Lease becomes an option
Property status of a bare license?
Not real propety; not assignable and are revocable
Evidences of Leases
5. Appearance of abandonment
Ways to avoid abandonment claims
Drill test cores, have an office on site, minimum royalties, rental payments, show market wasn't good for coal, paying property taxes on minerals
Effect of no express duty to mine upon abandonment claims
When there's no express duty to mine, it's hard to say that co. abandoned
Implied duty to act in re abandonment
Only applies if there is no minimum royalty. If min. is paid, lease isn't abandoned.
Requiremens of abandonment of RP
Physical departure and intent
Methods for terminating lease
Types of rights given by leases
1. RP interest; or
2. Exclusive right of access to explore for and develop minerals
Title passing––Usufruct analysis
If there was intent to pass the entire usufruct of disposal of the coal, title passes
Title Passing––PA test
1. Exclusive right;
2. To mine all coal;
3. For either:
- consideration up front OR
- be compelled to mine OR
- pay delay rentals
NB: This makes a lease a severance
RP; can't be abandoned––Adv. Poss. might work, though
Scope of the Access Easement
Mineral owner given "reasonable" access to the surface
NB: Rights exist, even if not in severance
NB: Mineral estate is dominant––right to make reasonable use w/o having to pay surface dmgs
"Reasonable use" of surface
1. Alternatives available: mineral owner could have done it another, less destructive way and not destroyed surface
2. Industry std: If mineral owner is "doing something weird" it mightn't be reasonable
3. Extent of Interference: How much is min. owner using?
Surface owners are granted protection (as opposed to, "Sorry, sucker" days)
Must prove:1. Distrupted surface use must have existed before the mineral development;
2. Surface use must have been actually disrupted by the mineral development; and
3. Another reasonable alternative existed
"Your tract or any other tract" meaning
Min. owner can use your tract to service any tract (e.g., you could be the middle tract and they could have a processing station on your land)
Limitations on surface use rights
1. Reasonable, non-neg., non-excessive
2. For benefit of mineral interst on that leasehold
3. In accord w/ terms of the lease
4. In compliance w/ accommodation doctrine
5. In compliance w/ stat. and reg. law
Canon of Construction: Express rights negating implied rights––Does it mean an unincluded one is out?
Some say yes; general conveyances allow more "reading into things"
From Case: “It would appear from the foregoing cases that where the severance deed contains broad rights for utilization of the surface in connection w/ underground mining, and these broad rights are coupled w/ a number of specific surface uses, courts will be inclined to imply compatible surface uses that are needed to the underground mining activity.”
Grant of right to surface mine: express or implied?
If expressed, no problem;
If implied, only allowed if, at the time of the grant, surface mining was a common practice in the area
Axn beyond the scope of easement could = nuisance; e.g., not moving pipeline
Basic rule about other tracts and use of surface when deed is silent
No use allowed on such leased tracts
NB: Be careful; "other tracts" language may be sufficient
Right of reasonable use to develop
Even thought something isn't mentioned in lease, necessary and reasonable uses will be allowed
NB: Reasonablenes expands w/ technology
Canon of Interpretation: Express rights rnning afoul of unexpressed rights
Express rights discount unexpressed rights
Subjacent support, liability
Not strict liability––must show actual damage
Absolute right to subjacent support?
Yes. But "mere surface subsidence" allowed (if no buildings, hard to get damages)
Who does water go to, surface or min. owner?
Surface, so long as water stays on/in tract
Who does coalbed methane go to, surface or mineral owner?
Surface, unless severed, BUT vengint of CBM is always allowed!
NB: In old leases, using the "when written" canon of construction, CBM was waste an no one reserves waste; CBM goes to mineral owner
Owner of space left by mining
BUT, Tex. has salt dome pour space exception
Texas––Owner of space left by mining
Surface owner, but if pour space is in a mineral, mineral owner
Some say surface owner gets it (because it's a separate mineral)
Others give to mineral owner
Others give to surface owner, w/ mineral owner right to vent
Explosive––Type of liability
Strict––no neg. required; injury = damages
Liability split of blasts
Strict: Actual direct result of blast (e.g., thrown rock)
Neg. for indirect results: concussion, smells, vibrations, loss of springs, etc.
Res ipsa and blasting
Used to prove vibrations from blast cause damage
Generally: Prove neg occurred, then prove all other causes; Facts must be weighed and can be rebutted
Implied duty to begin mineral development
There is an implied duty to develop minerals w/in a reasonable time period (unless parties have contracted otherwise––usually a covenant, not a condition!)
Covenant v. condition
Covenant: A promie that, when broken = suing for damages (but not necessarily lease forfeiture)
Roadmap of lease issues:
1. Has the duty been K'd around?
2. Has the duty been breached?
3. What is the remedy?
Q's to ask in re lease requiring development
1. Is there an obligation to reasonbly develop? (Usu., case law requires)
2. Will the annual payment of royalty fulfill the reasonable development requirement, if it exists? (Royalty credited upon production is not consideration––expected consideration is return from development)
3. Does breach of an implied covenant cause forfeiture? (Not usually)
Consideration credited on production
If coal co. pay "rental" but it's considered part of consideration for production, it does not help the issue of lease requiring development. The consideration is supposed to come from development, i.e., it's not a rental payment
Non-payment of minimum royalty effect on lease
Can void lease
Implied promise of reasonable work
Leases have implied promise of reasonable work; notice od default not required––when no consideration present, duty to develop is a condition, not a covenant
1. Is K ambiguous?
2. If ambiguous, use parol ev.
3. If not, four corners
Diligent mining v. continuous mining
Not the same. Diligence largely depends upon the circumstances (demand for coal, quality of mienrals, etc.)
Substantial noncompliance with lease––Factors
1. Quantity requirements?
2. Particular operations required?
3. Particular type of equipment required?
4. Diligent or continuous activity? Diligent ≠ continuous
In suspense rental holdings
If there's an argument about how much is owed, POP keeps money in separate bank acct until dispute is settled
Purchaser of Production: An agent of the lessee who pays the lessor (the lessee is not the payor)
All tracts leased are viewed as one, even if leased by different lessors (e.g., mining "in the vicinity" triggers start on all land)
NB: Unitization works best when "block of coal" is defined; otherwise it doesn't apply
Canon of Construction: Redundancy
If cts see redundancy, they'll try to read meaning into all of the words
Method of aboiding mineral royalties; only works if there is "iffy" quality minerals
NB: Doesn't work if substantial good quality coal, known about a leasing remains
"Iffy" quality coal, lessor liability for mineral royalty
Lessor not liable until workable seam found
Why accept minimum royalties?
1. Income stream makes lease attractive;
2. Helps w/ consideration arguments
First marketable product rule
Royalty is based upon gross proceeds of minerals; mineral co bears the cost of getting product to market
Royalty in kind
Instead of cash, lessor gets mineral in natural form
Problem w/ royalty in kind
If it's uranium: Gov't comes knocking
POP problems: lessee's POP made a pipeline so that all minerals would be sold to POP, if lessor wants in kind, lessee can't provide all minerals and they'll break K
"Clay or other minerals mined and sold" v.
"Clay or other minerals removed from leased land"
The latter: Clay doesn't have to by sold, thus potentially requiring payment before sale
Unclarity in "for all clay removed from the leased premises"
Removed from ground or taken over the lease boundary?
Right to grant leases––100% right to elase the entire tract (but all eget same deal)
NB: Makes lease more valuable than a fractionalized interest
Executive right––Right to directly develop?
Yes. Executive has a duty to the other mineral owners to develop
Tex: Nope. Non-execs can't self-develop.
Duty of executive right holder
Fiduciary: Not anymore.
Utmost good faith and fair dealing: Prevailing view.
Good faith w/o bad faith: Viewed in equity.
Executive right––Utmost good faith and fair dealin
Exec. must obtain for non-exects:
1. Every benefit that exect gets
2. Must get what executive would have negotiated for itself as if there were no nonexecutive interst
Executive right––Good faith, w/o bad faith
Objected std: reasonable and prudent under the circumstances
Sup. Ct. views in equity
Substantial compliance K compliance std.
GA: Change does not materially alter the consideration
NB: Common law = strict compliance
Royalty Payor statutes
1. If you still a royalty owner, they can get significant compensation
2. Payee is lessor
3. Allows treble damages in worst cases (and insane interst rates and atty fees)
4. Can be suspended if title quandary or such is present
NB: Note 2, pg.183
Fice ways to terminate lease:
1. Termination (expires on its own terms, no notice of default)
3. Forfeiture provision (w/o notice of default)
5. Equity (no other remedy at law)
Perpetual royalty leases
Not enforceable for lack of consideration
Minimum royalty for lease to be valid
Some states passed law requiring 1/8 royalty minimum for valid leases; what about costs? (e..g, if costs were deducted, was <1/8); SC said leases valid, costs were allowed
Failure to give release = cause of action for slander of title
Std. of Car: To lessor
LEssee can't interfere w/ mining operations and then sue mining co. for not operating
Lessor can'tbe the one to stop production (and then sue for no production); e.g., lessor sues lessee, lessee must stop and mine accumulates water and slate
Forfeiture and interference
No forfeiture unless clearly shown that opponent didn't behave like a reasonably prudent operator
Std. of Care: To third parties
Can't damage 3d party's mining through lessee's meg
Mining partnership, elements
1. Joint ownership
2. Joint operation
3. Express or implied agreement to share profits and losses
Joint control––What establishes?
OK: Actively joining in promotion, conduct, mgmt, giving orders, buying equip, hiring people
Policy: Stops huge coal cos from setting up shell corps to avoid liability
Any movement of the soil from natural position
Surface support requirement
Only need to provide support for surface as contemplated at the time of separation of mineral estate
KY: Must leave surface in "natrual state"; absolute right, neg. not considered
HY "Natural state"
The condition of the surface, including reasonable and foreseeable improvements thereupon, at the time the coal is severed, not from the fee, but from the earth
Ku: "Natural state"
Condition of sruface, including reasonable and contemplatable improvements when coal is mined
Measurement of dmg for subsidence
Permanent dmg: Change in FMV
Non-permanent: Reasonably cost to repair
NB: Punitives are available for malice or reckless acts
Broad form deed
Generalized deed; usu. allows coal owner to do anything "deemed necessary"
Limitations on surface use rights
1. Reasonable, non neg., non excessive
2. For benefit of mineral interest
3. In accord w/ terms of the lease
4. In compliance w/ accommodation doctrine
5. In compliance w/ stat and reg law
Elements to "Broad Deed"
1. Right to use and operate on the surface
2. Release of liability for surfae dmg
3. Detailed description of access easements
1. Surface estate
2. Mineral estate
3. Right of support
If lesor or surface owner obstructs lessee's title or lessee's quiet enjoyment of use, then:
1. Equity may toll running of time under lease (e.g., lessor's axns delay activity for ayear, lease is extended a year)
2. Lessor or surface owner may be enjoined and be liable for dmgs
Goal: Protect surface owners from sruface disruption
Requires: Permit from Public Service Comm'n to mine; may go to ct. if surface owner goes "nonconsent"
NB: Requires a mineral owner (not developer) to get a hearing and you must own the entire leasehold (even 1/16 non-ownership = no hearding)
Notice requirement for statutory abandonment of minerals
None. Enactment of the Act counted.
Indiana automatic reversion after 20 years statute
1. DP? Nope. Act has legit purpose
2. Taking? Nope. No notice needed, enactment of Act was notice enough
3. Exception for multiple tract owners =P Q? Nope. Rational basis for singling out multiple tract owners.
NB: It was the failure to use the property that cause the lapse, not state action
Significance of state-created property rights
Rights are created subj. to "Reasoanble conditions"; state can thus use its police power to abrogate some of those rights
Trouble w/ police power
Termination w/o notice answer
1. State needs to just pass and publish law. Owners charged w/ notice (A grace period helpd)
2. There is a difference between self-acting lapse laws and judicial proceedings––the former ends no notice
E.g., 20 year lapse statute
Can't abandon RP; BUT, in states like OK, mineral rights are more like profit a prendre, so you can abandon them
§125 Clean Air Act
Exec brance can prohibit a major fuel burning stationary source from using fuels other than locally or regionally available coal when needed to prevent or minimize significant local or regional economic disruption or unempoyment
NB: EPA didn't enforce this
Ways to comply w/ §125 Clean Air Act
1. Low sulphur coal; or
2. Install scrubbers
CC two part test
1. Is regulated activity in the stream of commerce?
2. Are means adopted by Cong. appropriate?
Dormant CC exceptions
1. CAn subsidize local interest and incidentally burden interstate commerce unless burden exceeds local interest
2. State is an active participant, such as an active buyer/seller. Can favor local merchants!
Acid mine drainage
Fe(III) precipitates as Fe(OH)3, a yellow-orange slurry known as yellow boy when mine waters comes into contact w/ fresh water
NB: Considered public nuisance
Water pollution––State police power?
Test for nuisance (e.g., water pollution) abatement acceptable police power
1. Are means adopted reasonably needed fro abatement of nuisance?
2. Are the means not undul oppressive to policed party?
Two requirements for state action
1. Public interest requires such an interference (ends)
2. Means used are reasonably needed and related
NB: Police power must reasonably be adapted to its purpose and only inhibit property rights to the extent needed to preserve public welfare
5th amendment: "nor shall priv property be taken for public use w/o just compensation"
NB: Not const right to property BIT no Const. disregard of the right of property
PA law preventing mining of antracite if mining results in subsidence
Exception: Where surface is owned by coal owners; and
2. Development is more than 150 ft from sturcture owned by someone else
UNCONST: Wipes out property rights––different from room and pillar requirements because coal co could still make money, they couldn't under Kohler
Mere enactment of Acts = taking?
Only if denies owner economically viable use of the land.
Reasons it may not:
1. Doesn't categorically stop mining on its face, only regulates conditions under which mining can occur
2. Doesn't stop other available uses (e.g., gold)
3. Ripeness: No injury; no seeking administrative relief
Only does if it denies an owner all economically viable use of the land
Public interests v. private interest in re takings
Only public interests are allowed to uphold a taking
Insurance payouts in re takings
Does not mitigate––many acts are preventative; insurance is palliative after damage has been incurred
Dress laws up as "for the public safety" to get law passed
Importance of land division
Dividing cleverly could result in takings of entire property (leaning toward a taking), rather than a piece of peoperty (which mitigates against a taking)
Support Estate (PA)
Has no real value, just part of the bundle––a party can lose one part of the bundle and not by subjected to a compensation-required taking
Nuisance exception vs. public use
Public use is just a threshold question, states can invoke nuisance exception to avoid a taking (dispute as to the breadth of this technique, however)
Takings Test situations
1. Takings in which there is not a 100% takings of right
2. More complete takings
Proper way to challenge permit withholding:
2. Admin.; then
3. Dist. Ct.
Agins test for IDing a takings
Weigh private and public interests
e.g., preserving swamps is a public interest, preventing pollution is too––however weighed against complete loss of private right would probably fail, especially when pollution is minimal/non-existent
Questions in re: Where to begin a takings action:
Start administrative axn and then sue? This delays actions greatly.
Traditoinal Takings / Penn Central Test
The court must consider:
1. Economic impact of the restirciton on property;